A pride arts festival in Port of Spain, Trinidad, in July 2018. Photograph: Sean Drakes/Getty ImagesView image in fullscreenA pride arts festival in Port of Spain, Trinidad, in July 2018. Photograph: Sean Drakes/Getty ImagesUK judges begin hearing appeal over Trinidad and Tobago anti-gay lawActivist is challenging ruling last year that restored colonial-era homophobic law against same-sex intimacy
Some of the UK’s top judges are hearing arguments over whether a Trinidad and Tobago court had the legal right to overturn a 2018 ruling to remove colonial-era homophobic laws that criminalise anal sex between consenting men.
The country’s “buggery law”, often referred to as its “sodomy” law, was created in 1925 and was written into Trinidad and Tobago’s 1986 Sexual Offences Act. In 2017 a Trinidadian LGBTQ+ rights activist, Jason Jones, challenged the law, and in 2018 a high court ruled that it infringed upon his constitutional right to privacy and equality.
Last year a court of appeal quashed that decision after an intervention by the country’s attorney general. Now Jones’s appeal is being heard by the London-based judicial committee of the privy council (JCPC), the highest court of appeal for the UK’s overseas territories, crown dependencies and several independent Commonwealth countries. It shares the same judges as the UK supreme court.
Activists across the Caribbean are closely watching the proceedings, in which an outcome is expected in three to six months’ time.
The Bahamas decriminalised homosexuality in 1991 and the UK government repealed such laws in 2001 in Anguilla, the British Virgin Islands, the Cayman Islands, Montserrat and the Turks and Caicos Islands. Recently, judges have struck down similar laws in Barbados, Dominica, St Lucia and Antigua and Barbuda. However, anal sex remains a crime in Grenada, Jamaica, Trinidad and Tobago and St Vincent and the Grenadines.
The Trinidadian government is opposing Jones in the case. On Tuesday the prime minister, Kamla Persad-Bissessar, argued that the case could have a wide-ranging impact by also potentially affecting other “savings clauses” – laws imposed on Caribbean nations when they were still British colonies to ensure they preserved British laws after independence.
“This ruling is going to be a very profound decision, not just impacting on sodomy laws but that whole issue of the saving clause. We have a lot of colonial laws that were saved, so this will give us guidance as to which ones we keep, which ones we don’t keep,” Persad-Bissessar told the Guardian in an interview at a Caribbean leaders’ summit in St Lucia.
Darrell Allahar, a minister in the office of the prime minister and one of Persad-Bissessar’s lawyers, described the privy council hearing as a “very good exercise”.
“We want to get the court’s view because the issue is more than the sodomy laws, the issue has to do with what is called the savings clause, which is a feature of all of our constitutions in the English-speaking Caribbean,” he said.
He added that the clauses were created “to save existing laws at independence so we don’t have a wholesale gutting of those laws in light of the human rights provisions”.
View image in fullscreenJason Jones celebrates a high court ruling in 2018. Photograph: Reuters/AlamyJones, 61, said the case should never have had to reach the British court. “At any time over the last decade of my legal challenge, the state and indeed parliament could have put a stop to this and just removed these heinous laws themselves,” he said. “They have wasted millions of taxpayers’ money fighting me.”
Read moreHe said the law, under which a person can be jailed for up to five years for consensual same-sex intimacy, “dehumanises LGBTQ+ people. It makes us both a criminal and a victim at the same time.”
Jones said he was confident he had a strong case. “The privy council will never uphold a 500-year-old homophobic piece of British law that goes against the rights of the individual. Not in 2026,” he said. “I know I’m on the right side of history.”
Leo Varadkar, Ireland’s former taoiseach and a global LGBTQI and human rights fellow at Harvard University, said in an interview that the only five countries in the Americas that continued to outlaw homosexuality were under former British rule. He pointed to the irony that “colonial-era laws that have long since been repealed in the United Kingdom itself” remained active in former colonies.
In a paper for Harvard last week, Varadkar wrote: “From Canada in the north to Chile in the south, homosexuality has been long since been decriminalised in the 35 countries that make up the Americas” apart from Jamaica, Guyana, St Vincent and the Grenadines, Trinidad and Tobago, and Grenada. “All are anglophone and formerly part of the British empire. This is not a coincidence.”
He noted that the UK judges would preside over this week’s hearing in the knowledge that “human rights and freedoms, including the right to privacy and control over what happens to one’s own body and in one’s own bedroom”, were enshrined in British law.
