The Bar Association is wrong – we need legislation for the rights of LGBT citizens
I was disappointed when Christopher Ram, on behalf of the Guyana Bar Association, insisted that Guyana does not need any new legislation to guarantee the rights of Lesbian, Gay, Bisexual and Transgender (LGBT) persons. I am not a lawyer and I have no desire to pick a fight with the lawyers. I simply want to urge Mr Ram and his colleagues to review their position.
The former Chief Justice, in one of his decisions involving a young transgender person, alluded to the fact that based on international treaties and conventions, the rights of homosexuals must be respected and fulfilled – homosexuality is a crime in Guyana. He asserted that the courts were obligated to treat homosexuality as a crime, even if it is unconstitutional. I surmised that the Honourable Chief Justice was saying that while the courts interpret and enforce the law, it is the Parliament that makes the law. In his view, the Parliament must correct the injustice by legislating to resolve the conflict that exists between the Constitution which recognises the rights of all citizens, but through a Constitution “savings clause” preserves the injustice of punitive laws directed against homosexual persons. The Supreme Court of India took a similar position.
The Parliament needs to legislate a constitutional amendment to remove the preservation power of the “savings clause” in the Constitution and to broaden the fundamental rights in the Constitution. When we failed to enact the original constitutional revision in 2000 that would have recognised the fundamental rights of people regardless of sexual orientation, we provided explicit rejection of the rights for the LGBT population. While nothing in our Constitution explicitly took away rights from LGBT persons, nothing in the Constitution protect people based on their sexual orientation. Legislation is needed to remove any ambiguity and to specifically recognise the fundamental rights of people who are equal to every other citizen. Religious people, the disabled, people of various ethnicities and race, etc, are protected, why not persons whose sexual orientation have been ignored?
Unfortunately, the only way to repeal the punitive laws against buggery and homosexuality is by legislating and this we must do now. The time has come for Guyana and Caricom countries to repeal those laws that stigmatise, discriminate and criminalise LGBT. Guyana is today one of about five countries in the world that in accordance with the law can sentence a person in the LGBT community to death for simply engaging in same-sex relations in the privacy of their homes. How then can the Bar Association pronounce that we need no new legislation to guarantee LGBT persons their rights?
Indeed, 11 countries of Caricom are among just over 70 countries around the world that by law can sentence persons to jail for more than 10 years for just being a part of the LGBT community. Thousands of Caricom citizens are among millions of people around the world who continue to live in places that outlaw same-sex relationships and prosecute people for being gay. In five countries and in parts of two others, homosexuality is still punishable with the death penalty, while a further 70 imprison citizens because of their sexual orientation.
In the 9th and 10th Parliaments, Guyana placed the issue of decriminalisation on the table. In many ways, we were forced to do so by the United Nations Human Rights Commission. Guyana under its human rights review was mandated to change our laws in a number of areas, including repealing the anti-gay laws and death penalty and banning beatings in schools. Incidentally, several other countries were similarly mandated by the UN Human Rights Commission. The 11th Parliament must not delay any further – we must act now.
Acting to guarantee fundamental human rights is not putting Government and the churches at odds. Our countries are deeply ingrained with the unshakable links between Governments and our faiths, our religious links. While Governments must fully respect the right of the churches to propagate their understanding of the morality, or immorality, of homosexuality, Governments cannot shirk their duty to ensure that all citizens, without exception, enjoy the full protection of the law. Our Constitutions uphold our rights to religious freedoms, but also affirm fundamental rights and the dignity of the individual human being, declaring that all persons are equal before the law and entitled to non-discrimination; to freedom from interference with their privacy; and to freedom from unlawful attacks on their honour and reputation.
