Privy Council’s stranglehold Caribbean LGBTQIA+ people

| 18/11/2022 | 52 Comments

(Colours Caribbean): The UK Privy Council, comprising judges of the UK Supreme Court, continues to enable the oppression of LGBTQIA+ people in the Caribbean by reversing progressive lower court decisions and upholding the enforceability and constitutionality of anti-LGBTQIA+ laws in those states (most of which were themselves introduced by the UK).

Five British judges from the Privy Council of the United Kingdom (the Privy Council) are currently visiting the Cayman Islands and were greeted with a special Grand Court opening ceremony at the Halls of Justice. However, it is worth examining the role that the Privy Council has played, and continues to play, in the Caribbean with respect to the rights of lesbian, gay, bisexual, transgender, queer, intersex or asexual (LGBTQIA+) people.

In brief, the Privy Council continues to enable the oppression of LGBTQIA+ people in the Caribbean by upholding Colonial Era laws imposed centuries ago by the British Empire and hindering or outright reversing any progress made to rectify them by local Caribbean courts.

A recent report explores how pre-colonial historical studies indicate that people in the Caribbean region, today generally identifying as LGBTQIA+, were neither repressed nor stigmatised by some pre-colonial cultures but positively valued by them. This accepting attitude “collided head-on with the culture and legislation of the colonizing countries which, throughout European history, had become brutal and sadistic towards [LGBTQIA+] people”.

As such and contrary to popular belief, the phenomena of segregation and criminalisation of LGBTQIA+ people in the Anglophone Caribbean are a direct consequence of Colonial Era laws exported to the region by the British Empire.

Those Colonial Era laws are precisely the ones for which former British Prime Minister Theresa May offered an apology in 2018: “These laws were often put in place by my own country. They were wrong then, and they are wrong now. As the UK’s Prime Minister, I deeply regret both the fact that such laws were introduced, and the legacy of discrimination, violence and even death that persists today.”

Against this background, justices of the Supreme Court of the United Kingdom (SCUK), who also serve as members of the Judicial Committee of the Privy Council (JCPC), recently determined that the constitutions of Bermuda and the Cayman Islands, enacted by the UK Parliament, do not require the legalisation of same-sex marriage and that equality for LGBTQIA+ people is not a constitutional requirement.

In Trinidad and Tobago, the Privy Council reiterated its decision of 2004 in (Boyce v. The Queen, 2004, et al) that all colonial laws are immune from constitutional challenge, regardless of how inhumane or degrading they may be, thus facilitating the constitutionality of colonial laws that criminalise and discriminate against LGBTQIA+ people.

The argument that the Privy Council “simply applies the law” fails when one acknowledges that it had competing authoritative choices for the possible outcomes in all three cases but preferred approaches that are pernicious to the basic human rights of a disfranchised and vulnerable minority of the Caribbean.

In the absence of an explanation as to those choices, the Privy Council demonstrated homophobic and racist political inclinations in these three cases. This is particularly revealed in the Bermuda case.

In Bermuda, the majority not only reversed the decision of every single judge in the jurisdiction who believed that the constitution provides “equality for all” including LGBTQIA+ people, claiming that the UK Parliament did not pass a constitution for Bermuda that would allow it to be expounded to protect this minority, but more disturbingly, the Privy Council changed decades of case law precedent and applied the costs to the LGBTQIA+ respondents in Bermuda.

While denying equality for all under the law may have some twisted legal justification, there is no legal explanation as to why the Privy Council would allocate costs to the respondent, particularly after the LGBTQIA+ respondent was dragged to the Privy Council by the Bermuda Government after the Bermuda Government lost in all instances in the Bermudian courts.

The Privy Council hasn’t bothered to explain the departure from its own precedent in the Bermuda case.

Conclusion:

It is crucial to understand that the Privy Council’s decisions are not the result of British judges refraining from intervening but rather actively halting and reversing judicial progress regarding LGBTQIA+ rights delivered by Caribbean home-grown judges over the last 20 years.

The Privy Council is the last remnant of British colonialism holding effective imperial power, regardless of the alleged independence of the jurisdictions and in 2022, is responsible for hindering progress for human rights in the region without recourse to the regional American human rights system.

No apex court in the Americas has so consistently denied LGBTQIA+ people the ability to assert and advance their rights under their constitutions in modern times as the British Privy Council is doing, and it is for these many reasons why Colours Caribbean does not welcome the Privy Council to the Cayman Islands.


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Category: Laws, Politics

Comments (52)

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  1. Anonymous says:

    What is Wayne Panton doing to help? He seems to enjoy taking part in parades, but what is he really up to?

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    • Anonymous says:

      Rubbish post. I am in support of the LBGTQ community. But the problem is local legislation. We do not chose the privy Council judges but we choose you make our laws.

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  2. Anonymous says:

    So you think that some British judges should make law rather than the local legislatures elected by local people. Because that wouldn’t be colonialist at all would it? You say the laws are the result of colonialism, but you think the remedy is more of the same. I guess in your book it’s colonialism to blame for the fact that local politicians and the major of the elect are perfectly happy with the status quo as well. But vid forbid you should suggest the bigotry is home made – must be those British judges to blame, eh?

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  3. Anonymous says:

    This Viewpoint reveals a profound, but perhaps deliberate, misunderstanding of the constitution (which was approved by plebiscite) and the role of the courts.

    If you want the law changed, then appoint legislators prepared to change it. If you can’t find those, then I’m sorry but that’s democracy: blame the system and the legislators, but not the courts, whose job it is to interpret existing law, not make new law. “Judge-made law”, for example the former chief justice’s effort in this field, is bad law and undemocratic.

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    • Anonymous says:

      You need to revise your understanding of constitutional law mate. What the CJ did was an impecable construction of the constitution using a century of case law that provided him tools to interpret the constitution in the way he did. The CoA and the JCPC did the reverse. So you understand , if a law is found in breach of the constitution, the law is void even if 100% of the people want that law, they can’t have it unless the constitution changes and the duty of the court is to declare that law void pursuant to the Colonial Laws Validity Act 1865.

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      • Anonymous says:

        Actually you are wrong, if a law violates the constitution the judges make a recommendation for parliament to address the issue but the law remains in effect

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        • Anonymous says:

          You are wrong I am afraid. Any “existing law” (ie. a law that pre-dates the constitution, such as the Marriage Act) or any other law, regardless of when passed that breaches any part of the constitution *other than* the Bill of Rights, will be absolutely void and inoperative to the extent of its inconsistency. You should go back and study your constitution because the point you make is neither applicable nor relevant in these circumstances.

          • UnCommon_Sense_Commentor says:

            If a law violates the Constitution then it becomes void. However the Chief Justice cannot create legislation or say that something should be a certain way and make it into law. He has to recommend to the legislature the right legislation so that the government will be in accordance with the constitution. However, unfortunately or fortunately, depending on your point of view, the legal logic that the Chief Justice used to come to the conclusion that came on laws were in breach of the Constitution was wrong. This is because he interpreted the broader article/statement in the constitution to overrule a more specific article dealing with marriage. This goes against common practices and good interpretation. A more specific article can make an exemption on a specific topic that another earlier article allowed. If I say to you that you can drive one of my cars but later tell you just not the red one, you aren’t allowed to Drive the red one. You cannot then refer to my first statement to argue with me or why you have the right to drive the red car which I later told you you couldn’t. The Cayman Islands Constitution lays out the rights of its citizens including the right to marry. However it defines that marriage as between a man and a woman. Therefore, two men cannot come and argue that since all citizens have the right to marry that they should be able to marry, ignoring the article or statement that defines what that marriage is.

          • Anonymous says:

            The constitution defines that marriage is between a man and a woman. That resulted from input from the people during the public consultation phase, and that is what the people understood and accepted when they voted yes in the referendum to accept the new constitution. The will of the people has been make known. Cry me a river.

    • Anonymous says:

      Judicial legislation.

  4. Anonymous says:

    Are Privy Council judges better than Caribbean judges at interpreting the law? Please remember that all Bermuda judges (at the Supreme Court and Court of Appeal) interpreted that the Bermuda constitution required, as a matter of law, equal treatment for all persons and emphasised the importance of human dignity.

    The Privy Council disagreed with all Bermuda judges and overturned their legal interpretations. The Privy Council is the only apex court of a Commonwealth country to have reversed progress on human rights and create segregation where it had ceased to exist as a matter of law by virtue of decisions of the courts of that Commonwealth country.

    The Caribbean Court of Justice is the apex court for a number of Caribbean nations. The Caribbean Court of Justice, unlike the Privy Council, has interpreted for instance the Barbados and Guyana constitutions completely differently to the Privy Council. The Privy Council dismisses their judgments, notwithstanding that they protect equality and human dignity of all persons. The Privy Council judgments on the other hand enforce “inhuman and degrading” laws, as the Privy Council itself acknowledged in those judgments.

    If one believes that the Caribbean Court of Justice, Caribbean judges and all other Commonwealth countries’ judiciary are unable to correctly interpret their laws such that it is only the Privy Council that can get it right (and the Privy Council favours “inhumane and degrading laws” and segregation) then we have a problem.

    We believe our masters are superior. Why do we believe that? I think this opinion is trying encourage us to think about that profound question – and it is an exceptionally important question to ask. It has nothing to do with same sex marriage.

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    • London says:

      >” Are Privy Council judges better than Caribbean judges”

      Yes. It is simply not credible to assert that the Caribbean produces lawyers of anywhere near the quality of those in London appearing in the Commercial Court and Chancery Division, and from whom the English judiciary is selected.

      Facts don’t care about your feelings.

  5. Anonymous says:

    A difficult read, struggled to follow.

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  6. Anonymous says:

    Organize a voter initiated petition to amend the constitution. Successive regimes aren’t willing to take the political gamble of offending the 2000 or so fringe right Abrahamics with a public sounding, so it’s up to Colours and allied to assemble that diagnostic stat privately, like the anti-pier petition did. We won’t progress legislatively with our a method to regularly take the pulse of voters. Times are always changing.

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  7. Anonymous says:

    Don’t blame the uk. The Stone Age anti abortion and anti gay marriage people in cayman is the local caymanian devolved governments fault. And it is embarrassing to cayman.

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    • Anonymous says:

      Another silly article which fails to understand the role of the courts.

      Really, publishers should think twice before publishing material which is just plain wrong – including, I’m afraid, this Viewpoint. It spreads ignorance and directs anger at those who don’t deserve it and aren’t able to defend themselves in the public forum.

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      • Anonymous says:

        Explain what is wrong. I’ve read this a number of times and, while many may not like it, there are no mistakes.

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  8. Anonymous says:

    This is legally incoherent, and just trots out tired tropes about judges as if they were actual facts.

    The Privy Council explained its decision in its judgment- this article is simply complaining that they reached a different conclusion on the law to the writer. To infer from that they must be homophobic or racist is to substitute abuse for argument.

    The meaning of the constitution in its current form is now settled, and the result is perhaps unsurprisingly given the political inclinations of many of its drafters. Nothing is gained by this sour grapes. If the constitution requires change (and, for the record, l personally believe that it certainly does) then campaign for that. But don’t mistake slinging mud like this for progressing that argument.

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    • Anonymous says:

      Incoherent was the decision on costs against the respondent in Bermuda in that it is contrary to previous decisions of the Privy Council in which it held that appeals concerning matters of constitutional rights must not to be discouraged, thus unless bad faith is shown no order as to costs should be made. Their decision in this regard for Bermuda was inconceivable as a matter of law and remains unexplained.

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    • just sayin... says:

      What is being forgotten is that the International Court of Human Rights has confirmed that same-sex marriage is not a human rights issue once same-sex couples have an institution similar to marriage in which they can participate in. Our constitution and marriage act confirms that marriage is between a man and a woman.

      So while Cayman provides for a marriage between men and women, there is also an alternative regime (a civil union)with similar rights as marriage. A Civil Union is available for heterosexual couples as well as same-sex couples.

      You might not agree with that but that is what the situation is. In time I suspect that will change, and the country will be ready for same-sex marriage. It took the UK and the US many years to move from civil unions to same-sex marriage. Give Caymanians the same space and time to make changes as they see fit. Till then, civil unions are available.

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      • Anonymous says:

        “International Court of Human Rights”? Do you perhaps mean the European Court of Human Rights??

        The Inter-American Court of Human Rights, which is geographically more relevant in the Caribbean, has held that the Inter-American Convention on Human Rights requires same-sex marriage. 21 countries across the American continent and the Caribbean fall under the Inter-American Convention and are required to implement same-sex marriage. Moreover the US, France and the Netherlands have all ensured that their Caribbean overseas territories have same-sex marriage and secure equality and non-discrimination for citizens of their territories. It is only the U.K. that does not. Furthermore, the Caribbean Court of Justice has issued judgements that uphold equality and human dignity. It is only the U.K. Privy Council that has not, in fact they took away same-sex marriage in Bermuda after it had become law and re-introduced discrimination and segregation.

        Contrary to popular belief, the legal position under the constitutions of Bermuda and the Cayman Islands were not clear cut. If they were, the entire judiciary of Bermuda, at all levels, would not have disagreed with the Privy Council so profoundly. Similarly, our Chief Justice would not have disagreed so profoundly with the Privy Council. There were different legal interpretations: the Privy Council favoured the ones that introduced perpetual discrimination and segregation. Those that endorse and support the Privy Council’s decision for Bermuda and Cayman should question why British judges are better placed to interpret Caribbean constitutions than Caribbean judges. Are the judges of Bermuda and the Cayman Islands so incapable of falling on the right side of the law and history?

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        • Anonymous says:

          Costa Rica? Really?

          • Anonymous says:

            Yes. It is legal in Costa Rica by decisión of their Supreme Court.

            “Same-sex marriage in Costa Rica has been legal since May 26, 2020 as a result of a ruling by the Supreme Court of Justice. Costa Rica was the first country in Central America to recognize and perform same-sex marriages.

            On August 8, 2018, the Supreme Court of Costa Rica declared the sections of the Family Code prohibiting same-sex marriage to be unconstitutional, and gave the Legislative Assembly 18 months to reform the law accordingly; otherwise the ban would be abolished automatically. The ruling was published in the judicial bulletin on November 26, 2018, meaning that same-sex marriage would become legal no later than May 26, 2020. This followed a ruling issued in January 2018 by the Inter-American Court of Human Rights stating that signatories of the American Convention on Human Rights are required to allow same-sex marriage.”

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        • Anonymous says:

          @9:26:
          “Inter-American Convention on Human Rights”?
          Do you perhaps mean the American Convention on Human Rights, the document adopted November 22, 1969 at the Inter-American Specialized Conference on Human Rights?

          In any event, that convention and it’s affiliated court and rulings are totally irrelevant to the Cayman Islands.

          Interesting note: The United States of America signed the Convention in 1977, but the USA never ratified the agreement and is not currently subject to the jurisdiction of the court. The takeaway is that USA is not going to be subject to the whims of a bunch of Third Word countries.

  9. Anonymous says:

    The problem with colonised people, as evidenced by some comments above, is that they don’t realise they are being colonised until often it is too late.

    Colours Caribbean is not alone in its views. See:

    https://www.bailiwickexpress.com/jsy/news/privy-council-one-last-vestiges-colonialism-and-should-go/#.Y3fihSWvC_Y

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  10. Anonymous says:

    It’s only recently that some Christians no longer believe Jesus hates gays. Mohammed mostly still does.

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    • Anonymous says:

      Some Christians are too ignorant on scripture. 🤦‍♂️🤦‍♀️🤦🤷🏻‍♂️

      Christ said go sin no more. God loves sinners but he makes no excuse for anything he considers sin… and that includes ___(you know what). It is still a sin. It was a hundred years ago, and a hundred years from now it still will be.

  11. Fiona Foster says:

    Wouldn’t it be better, rather than denigrating the Privy Council, who only upheld the country’s law, to aim your fire at the legislators? It’s up to them to change the law.

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  12. Anonymous says:

    What absolute nonsense. Blame the Caribbean governments who have not changed the laws of their own countries as they are able to do. Just as in Cayman with the same -sex marriage case, it’s just much easier for Caribbean Govts and people to blame the British when they haven’t the guts to change the laws themselves.

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    • Anonymous says:

      Thank you Sir. You’ve said what I’ve been trying to get across to these people. BTW what you call a lack of guts, I call courage.

  13. Michael Stephen Terrien says:

    This is troubling but the article would be better if you focused on the issue at hand without all the woke throat clearing about colonialism and racism. The issue at hand is the right of same sex couples to marry.

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    • Richard Wadd says:

      No, the issue is the continued REFUSAL of Legislators to properly address the deficiencies in the existing Law. The function of the Judiciary is to interpret and apply Laws, not create them.
      Politicians playing poly-tricks.

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      • Anonymous says:

        Cayman has a constitutional system in which the constitution is supreme not the Parliament. The local laws sit beneath the constitution and must be in conformity with it. After all these years it astounds me that so many continue to assert that the system of governance in the Cayman Islands is the same as the Westminster parliamentary system in the U.K., where parliament is supreme and judges must submit to the will of parliament.

  14. Anonymous says:

    Wow someone actually had the guts to question the court. you would think we actually had freedom of speech.

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  15. Anonymous says:

    Twaddle. The job of the court is not to be progressive or activist or anything of the sort. That is the job of the legislature. If you want the law changed do not ask for the court to do it – that causes bigger problems – we have to get the Parliament (pick one) to change the laws. Half of people’s problems are not knowing where to properly focus their efforts to get the right results. Instead expecting judges to somehow magically do the work for them by not doing their own job right.

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  16. Caymanian says:

    I still say. Civil Unions for LGBTQ community and Marriage for the rest of us.

    Past that I do not support and neither does the majority of Cayman.

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    • Anonymous says:

      You might be surprised that a proposed law will create common law “defacto” relationships after two people have been together for five years. This will be an easy way to get Cayman Status as well. Just live with a Caymanian for five years and you are “married” and entitled to Caymanian Status.

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    • Anonymous says:

      Says you.

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    • Anonymous says:

      Why?
      How do you know what the majority support?

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    • Anonymous says:

      Someone else can marry whomever they choose. They can pick their wardrobe, shoes, sunscreen and shampoo too. It doesn’t affect me, my family, or my life one bit. In fact if anything, it probably marginally improves it, by ensuring that those I encounter in my day to day are delighted and happy with the way their chosen lives are being lived. We don’t have a lot of time on Earth, and shouldn’t spend it looking for ways to obstruct other people’s happiness. There’s nothing in the New Testament espousing this kind of interference.

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    • anon says:

      I agree.

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    • Shepherd says:

      I agree. Those letters shouldn’t be lumped together as a whole. Not fair for people who want to be with someone of the same sex.
      You are either straight, gay, or lesbian.
      All those other letters are choices, not a sexual preference.

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    • Anonymous says:

      Actually the majority of Cayman seems to want a same-sex marriage bill. Nobody cares about the religious lobby anymore, so just let it go!

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  17. Anonymous says:

    The Privy Council is not your problem. Your problem is you can’t get the voters and legislators to do what you want.

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