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Release peace: the magazine

Release peace: the magazine

Analysis & Background Stories on International Affairs

How a Beautiful Caribbean Island Changed Course on a Colonial-Era Law

Written by: Andrew Firmin with edits by Release Peace

Andrew Firmin is the CIVICUS Editor-in-Chief, co-director and writer for CIVICUS Lens and co-author of the State of Civil Society ReportCIVICUS is the world’s biggest alliance of civil society organisations and activists, with over 15,000 members in over 175 countries. Any opinions expressed in this article do not necessarily represent the views of Release Peace. A version of this article was originally published in the CIVICUS Lens.

Andrew Firmin is the CIVICUS Editor-in-Chief, co-director and writer for CIVICUS Lens and co-author of the State of Civil Society ReportCIVICUS is the world’s biggest alliance of civil society organisations and activists, with over 12,000 members in 175 countries. Any opinions expressed in this article do not necessarily represent the views of Release Peace. A version of this article was originally published in the CIVICUS Lens.

Eastern Caribbean Back on the Decriminalisation Path

On 22 April 2024, Dominica’s High Court overturned a colonial-era ban on gay sex. This made Dominica the sixth country in the Commonwealth Caribbean – and the fourth in the Eastern Caribbean – to decriminalise same-sex relations through the courts. The ruling came in response to a civil society lawsuit, following in the footsteps of Antigua and Barbuda, Barbados and  St Kitts and Nevis, where similar bans were struck down in 2022. Change in Dominica revives the hopes of LGBTQ+ activists in the five remaining English-speaking Caribbean states – Grenada, Guyana, Jamaica, St Lucia and St Vincent and the Grenadines – that still criminalise same-sex relations. In some of those similar legal challenges are ongoing. A small island has made a big difference.

The Historical Context

The criminalisation of gay sex in the Anglophone Caribbean dates back to the British colonial era. All former British colonies in the region inherited identical criminal laws against homosexuality, targeting gay men in particular. They typically retained them after independence and through subsequent criminal law reforms. Dominica gained independence in 1978, yet the country’s 1998 Sexual Offences Act retained criminal provisions dating back to the 1860s. Section 16 of that law made sex between adult men, described as “buggery”, punishable with up to 10 years’ imprisonment and possible psychiatric confinement. The offence listed in section 14, “gross indecency”, was initially punishable by up to five years in jail if committed by two same-sex adults. An amendment introduced in 2016 increased the penalty even higher, to 12 years.

Winds of Change

As in other Caribbean countries with similar provisions, prosecutions for these crimes have been rare in recent decades, and have never resulted in a conviction. Yet they have worked to stigmatise LGBTQ+ people, legitimising social prejudice, enabling violence, obstructing access to essential social services, particularly healthcare, and denying people the full protection of the law. Change has begun in the past decade, but it has been rapid. The Caribbean’s first public Pride event, a measure of the boldness and growing visibility of the LGBTQ+ movement, was held in 2015 in Jamaica. At the week-long gathering, LGBTQ+ people experienced the affirmation and shared sense of purpose that comes from togetherness and visibility. Soon, the tide began to turn, with bans on same-sex relations overturned by the courts in Belize in 2016 and Trinidad and Tobago in 2018.

The Legal Case

In July 2019, an unnamed gay man identified as “BG” filed a legal case challenging sections 14 and 16 of the Sexual Offences Act. The defendants named in the complaint were the Attorney General, the Bishop of Dominica’s capital Roseau, the Anglican Church and the Methodist Church. The Dominica Association of Evangelical Churches was also listed as an interested party. The lawsuit was supported by Minority Rights Dominica (MiRiDom), the country’s main LGBTQ+ advocacy group, and three international allies: the Canadian HIV/AIDS Legal Network, the University of Toronto’s International Human Rights Program, and Lawyers Without Borders. In an interview published by CIVICUS, the founder and coordinator of  MiRiDom, Daryl Phillip, discusses the organisation’s advocacy for people in Dominica who are denied their human rights on the basis of their sexual orientation or gender identity, as well as MiRiDom’s initiation of the legal challenge that led to the decision. The law was challenged as discriminatory and an enabler of violence against LGBTQ+ people. The High Court heard the case in September 2022, and on the 22 April 2024, Justice Kimberly Cenac-Phulgence issued a ruling setting out the reasons why sections 14 and 16 violated the applicant’s constitutional rights to liberty, freedom of expression and privacy, and were therefore null and void.

The Backlash

LGBTQ+ advocates around the world welcomed the court ruling, as did UNAIDS – the United Nations agency leading the global effort to end HIV/AIDS. Resistance, however, soon followed. Religious institutions, which maintain great influence in Dominica, were quick to decry gains in LGBTQ+ rights as losses in moral values. The day after the ruling was announced, Dominica’s Catholic Church published a statement reaffirming its position that sex should only take place within a heterosexual marriage and, while expressing compassion towards LGBTQ+ people, reiterated its belief in the centrality of traditional marriage and family. The Seventh-Day Adventists expressed resistance about the potential of the court ruling to lead to same-sex unions and marriages. Some faith leaders voiced their concern more explicitly, with one local prominent pastor, Randy Rodney, calling same-sex sexual acts an “abomination”.

The Road Ahead

Having decriminalised same-sex relations, Dominica is now ranked 116th out of 198 countries and territories on Equaldex’s Equality Index, which rates countries according to their LGBTQ+ friendliness. Outstanding issues in Dominica include protection against discrimination in employment and housing, marriage equality and adoption rights. LGBTQ+ activists also continue to push for the recognition of non-binary genders, the legalisation of gender change and the prohibition of conversion therapy.

The Equality Index makes clear that, as in all the Caribbean countries that have recently decriminalised same-sex relations, changes to laws remain ahead of social attitudes. As the instant conservative reactions to the court ruling demonstrate, shifting social attitudes is also significant. Legal progress can normalise the presence and social acceptance of LGBTQ+ people, in turn enabling effective access to legally enshrined rights. While working to ensure that rights are realised domestically, Dominica’s LGBTQ+ rights campaign also offers a powerful example that change can indeed take place in the appproximately 64 countries around the world that still criminalise sex between people of the same sex, including the five holdouts in the Commonwealth Caribbean. Dominica is now part of a broader regional and global trend.

 

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