[Part II] It is not illegal to be lesbian, gay, bisexual or transgender [LGBT] in Jamaica

Gay-justice I did some reading on the three primary rules governing the interpretation of laws by courts. The three rules are literal, mischief and golden. The literal rule has been the most commonly used technique by judges for interpreting the law and has only been sidelined where the court believed a literal interpretation would somehow be inappropriate, create mischief, civil unrest, or be otherwise unfair. It is difficult to gauge interpretations based on the mischief and golden rules, therefore, I am not going to discuss those rules here.

Based on part 1 of my legal ramblings I deduced that as per literal interpretation, the Sexual Offences Act was discriminatory “on the ground of being male or female”. However, my investigation into what is called Savings Clauses has put me in a bit of a conundrum. My understanding of the Constitution of Jamaica with a little help from sages such as Kenneth Hall and Stephen Vasciannie led me to assent that Savings Clauses were inserted into constitutions of the Caribbean to protect the old executive British order. There was a pontificate presumption by the British Imperialists that no laws in effect prior to Independence infringed on the human rights of Caribbean citizens.

According to Section 26 (8) of the Jamaican Constitution:

Nothing contained in any law in force immediately before shall be held to be inconsistent with any of the provisions of this chapter;  and              nothing done under the authority of any such law shall be held to be done in contravention of the provisions.

So with all this flaming talk of legal reform by the Government of Jamaica we are left with a Savings Clause that in many instances, deny our human rights as citizens of Jamaica. Some laws and sections of the Constitution have been repealed or revised to account for progressive changes to our human rights. However, since the Savings Clause ignores and denies us some of those rights, in effect, we remain violated, discriminated against, and harassed because we want to engage in “buggery”, “gross indecency” and “grievous sexual” assault with our consenting adult partners of the same gender.

We can argue all we want as LGBT persons and allies, fact is, although some of our laws are discriminatory and disrespectful to human dignity, any changes to those laws are ab initio because of the Savings Clause.  Any such law is inconsistent with the Chapter and cannot be used as a basis for adjudicating contemporary progressive human rights.

While our lowly government members pretend at international conventions and conferences to be ardent supporters and legislators of the Universal Declaration of Human Rights, the centennial lack of political will to remove or revise the Savings Clause by a simple majority (since the Savings Clause was not entrenched in the constitution)  is distasteful, discriminatory, unfair and inhumane in my opinion.

The effect is we are left with an Offences Against the Person Act, for example, which is bigoted, given that the offence of pleasuring the anus with a “carnal penis” [even in holy heterosexual marriages] was gazetted and saved by the almighty Clause. And while the Savings Clause is not entrenched in stone, I don’t know when we will find 32 members of the Lower House, 11 members of the Upper House and a Governor General (even though we already found the Queen) to amend, or rather remove buggery between consenting adults from the Savings Clause.

What will my government do? Do we need external pressure from super powers to recognize the inhumanity of saving flogging, buggery (between consenting adults), whipping or the death penalty? But oh! We’re independent nuh? Silly me! Then again, it was Massa who damned us with this Savings Clause so maybe David Cameron and his conservative executive with a little help from Hussein can once again force the hands of our astute legislators.

Up next is my appeal to the Government of Jamaica for a revision of those laws that criminalise some homosexual acts, in light of the view that they contribute to the homophobic attitude of my fellow citizens.

A Fi Wi Gully Queen!

Pausing legal ramblings to talk a little about the recent brutal murder of Dwayne Jones in St. James, Jamaica and what it means for survivors, like persons, and the general LGBT population in this space. . .

The first time I heard the news about Dwayne who identified as Gully Queen, I was flabbergasted. Today, after listening to survivors of the incident I’m an emotional wreck. I have never been so close to any such incident prior to this one and it pains my heart to think about the fact that male cross dressers and/or female transgender persons literally have no place in our society. We believe it is okay to discharge our venom of hatred and treat our own citizens like scum, inanimate objects, and slaves to be stoned and chopped at our leisure because they got a skin which didn’t quite suit their persona.

As reported by J-FLAG Dwayne was a very fun, kind, loving, jovial and brave person who had dreams and aspirations as all of us did as teenagers. Dwayne identified as female and I know some of you do not quite get the depth of that, but let me just say that everyday we defy the limitations of our bodies in one shape or form and Dwayne was trying to do just that in her own way. She was such a vibrant artistic teenager who could dance better than the average trained dancer (in my opinion) and it was unadulterated cruelty that took her talent, her life away. She brought no harm to anyone. She never assaulted anyone. She absolutely DID NOT bring this on herself!

Her family did not protect her as required by our precious Child Care Protection Act [I don’t know that her parents will be prosecuted for failing to protect their child, which makes them culpable in her death, in my opinion]. She was disowned, forcibly migrated to the streets, and literally left to die.

J-FLAG reported that although Dwayne had aspirations to become a Spanish teacher she was forced to drop out of school as early as grade nine because of the constant, unbearable bullying and discrimination experienced as an LGBT teen. When will we become a society that is not so selective about the diversities we accept and appreciate? When will we realise that something is wrong with throwing out our children into the streets simply because we do not have the patience or will to understand and accept their own interpretations and actualizations of their skins? Why must we allow them to bear the burden of not knowing what they will eat today or where they will sleep tonight? When will our arms open to them so they don’t have to keep running away from the spits of ignominy, the stones of disgrace, the knives of discrimination and the guns of death?

I had a recent conversation with a friend [and survivor of the incident] of Dwayne. And I was telling him I wish I could single-handedly help him in a meaningful way and he simply said: “Latoya, u know weh mi want? Mi want a life”. I didn’t know what to say after that. . .

How is it that I feel so helpless and others bask in terrorizing their lives almost DAILY? Do any of you know what it feels like to be afraid to walk on the street at daytime because that could mean signing your death sentence? I hope we will see cooperation between our NGOs and the Government of Jamaica on effectively dealing with this issue and so that better will come for our yute!

I am pleased by the efforts of Quality of Citizenship Jamaica to host in honour of Dwayne:

“EVERYONE HAS A RIGHT TO BE & A RIGHT TO A LIFE FREE OF VIOLENCE.” At the Emancipation Park, Wednesday, July 31, 2013 5:30-6:00pm

Please follow the links below for press releases from a few Jamaican NGOs condemning the gruesome murder of our Dwayne.

Quality of Citizenship Jamaica:

http://qcjm.org/press-release-murder-of-17yr-old-irwin-st-james/

Jamaica Forum for Lesbians All-Sexuals and Gays:

http://www.jflag.org/2013/07/violence-against-lgbt-people-is-an-affront-to-democracy/

Jamaicans for Justice:

https://www.facebook.com/notes/jamaicans-for-justice-jfj/jfj-press-release-jamaicans-for-justice-horrified-by-mob-killing-of-cross-dressi/555725737796662

Written by J-FLAG: Remembering Dwayne Jones (Gully Queen)

Dwayne Jones, also known as Gully Queen, was born on January 31, 1997 in the community of Paradise Rowe in Montego Bay, St James. The teen was displaced at an early age and was one of several lesbian, gay, bisexual and transgender (LGBT) youth who are forced to live and work on the streets.Dwayne was found dead on Monday, July 22, 2013 after being set upon by a mob at a party the previous night. Dwayne wanted to become a teacher of. . .
http://www.jflag.org/2013/07/remembering-dwayne-jones-gully-queen/

It is not illegal to be lesbian, gay, bisexual or transgender [LGBT] in Jamaica, BUT… [Part I]

Black Feminist Rebel

So, with its loud voice the church has managed to ignite the society into a deny-gays-rights-frenzy. I believe it was their bawling that influenced the changes to the original wording of the new Charter of Fundamental Rights and Freedoms [herein referred to as The Charter] to exclude discrimination on the basis of sexual orientation.

Today we are left with a Charter that ignores and/or denies some rights of the LGBT population in Jamaica. Thankfully, there is nothing in Jamaican law that prevents an individual from being lesbian, bisexual, gay or transgender. However, because the law criminalises some homosexual acts, the average ‘Joen’ interprets that to mean it is illegal to be LGBT, not recognising that sexuality is deeper and not so microscopic or limited to sexual activities.

I believe as a community we need to embark on an extensive educational programme that will allow Jamaicans to understand that

Choosing…

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It is not illegal to be lesbian, gay, bisexual or transgender [LGBT] in Jamaica, BUT… [Part I]

So, with its loud voice the church has managed to ignite the society into a deny-gays-rights-frenzy. I believe it was their bawling that influenced the changes to the original wording of the new Charter of Fundamental Rights and Freedoms [herein referred to as The Charter] to exclude discrimination on the basis of sexual orientation.

Today we are left with a Charter that ignores and/or denies some rights of the LGBT population in Jamaica. Thankfully, there is nothing in Jamaican law that prevents an individual from being lesbian, bisexual, gay or transgender. However, because the law criminalises some homosexual acts, the average ‘Joen’ interprets that to mean it is illegal to be LGBT, not recognising that sexuality is deeper and not so microscopic or limited to sexual activities.

I believe as a community we need to embark on an extensive educational programme that will allow Jamaicans to understand that

Choosing to live with someone of the same sex

Or raising a family with someone of the same sex

Or feeling emotionally attracted to someone of the same sex

Or wanting to party as a same sex couple

Or being in love with someone of the same sex

Or making someone of the same sex your orbital shell

Or wanting to spend the rest of your life with someone of the same sex

Or caring deeply for someone of the same sex

Or getting butterflies in your stomach because of the connection you feel with someone of the same sex

 Or your willingness to make sacrifices for the love of your life who is of the same sex

IS NOT ILLEGAL! Whew! Neither is it illegal to choose not to conform to gender norms.

But because of cultural and institutional attitudes, as LGBT people we then become afraid to do, feel and express all of the above, given that, the sometimes misguided application or interpretation of the law may result in a fate similar to Dwayne’s [the teen recently chopped to death because his gender and sexual expression was not aligned with the heteronormativity that exists in Jamaica]. And just to provide a little context here, this was one social media commentator’s exclamation in a response to the recent story: “kill him bomboclaat yes battybwoy fi dead. In the biblical dayz they were stone to death the bible said so, so killing is definitely right for them quiers [sic]”. Oh, the joy of being LGBT in Jamaica. . .

Sadly, my next few posts will have to focus on sexual acts between consenting adults in order to drive the point home, that in my opinion, Jamaican laws discriminate against males in general and homosexual males in particular.

My first point of contention is the perceived conflict between The Charter and the Sexual Offences Act. The Charter (which replaces and repeals chapter 3 of the Jamaican Constitution) is supposed to provide “more comprehensive and effective protection for the fundamental rights and freedoms of all persons in Jamaica”. It seems, however, that The Charter somehow neglects to include LGBT citizens of Jamaica as “persons”. The Charter goes on to read that “the state has an obligation to promote universal respect for, and observance of, human rights and freedoms”. Additionally, “all persons in Jamaica are entitled to preserve themselves and future generations the fundamental rights and freedoms to which they are entitled by virtue of their INHERENT DIGNITY AS PERSONS and as CITIZENS of a free democratic society and all persons are under a responsibility to respect and uphold the rights of others recognized in this chapter . . . no organ of the state shall take any action which abrogates, abridges or infringes those rights”.

The more I read this highfalutin Charter the more I realise that in practise we are the exemplification of a marginalized minority community, given the countless incidents of discrimination meted out to us by our ‘loved ones’, social institutions, the state and the society.

But let me proceed to explore one of the ‘grandiose’ ‘unabridged’ rights – “The right to freedom from discrimination on the ground of being male or female”.

The Sexual Offences Act clearly states that if someone [the offender] penetrates the anus of another [the victim] with a body part other than the penis of the offender [if the penis penetrates the anus that’s considered buggery], or with an object manipulated by the offender, s/he shall be guilty of grievous sexual assault if there is no consent between the adult parties. I interpret that to mean, that once the consenting adult parties so desire, legally, the anus may be stimulated or penetrated by the fingers, Heineken bottles, cucumbers, sex toys, etc. without being prosecuted by the state.

Therefore, in a marriage between one man and one woman, if the wife straps up and penetrates the anus of her husband and the husband in turn straps  up and penetrates the anus of his wife [given that they both consent], ain’t nothing wrong with that! There is no breach in law. BUT, if the husband decides to penetrate his wife with his penis, he may be sentenced for up to 10 years imprisonment based on prescriptions of the buggery law.

A wife will never go to prison for ‘anally’ penetrating her husband because she does not have a non-purchased penis. Now, if that isn’t “discrimination on the ground of being male or female”, I suspect I need to register for a programme at the Faculty of Law, UWI, Mona.

I don’t want to bore you with a lengthy piece, and I want you to reread and digest this first bit of my interpretation, which I intend to further analyse in part II (including an examination of the Savings Clause).

So let me shut up now and proceed to an abrupt end; remember it’s part I so I’m not quite ready to conclude. Cheers!