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!