June 23, 2021

LGBTI Law Committee officers and friends of the IBA: update

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Screenshot – Cayman LA

Overview of 2019, updates and highlights for 2020

Summary of content

1.     Research in the Caribbean: criminalisation

1.1. Research in the Caribbean: meeting with Secretary of State of the Vatican

1.2. Caribbean Court of Justice

2.     British Overseas Territories: UK ongoing breaches of LGBTI rights

3.     Cayman Islands: threat to the Rule of law

3.1. Failure of the judiciary of the Cayman Islands

3.2. Intimidation by legislators of the Cayman Islands

3.3. International condemnation ensued these intimidating remarks.

4.     Annual conference and agenda of the LGBTI Committee Miami 2020

1. Research in the Caribbean: criminalisation

The research in the Caribbean is now at its final stage.  A draft of the interim report is due by the end of this month.  This draft will be circulated among the committee of experts for initial comments and suggestions; the conference to discuss the interim report and agree a final report is scheduled to take place in San José, Costa Rica, on 22nd and 23rdMay 2020; the final report is expected to be published shortly afterwards, during the summer.

Relevant to the research in the Caribbean, during the last two years, there have been a few developments of particular interest: a meeting with the Secretary of State of the Holy See in April 2019 (see 1.1.) and prior to this meeting, the delivery of two ground breaking decisions by the Caribbean Court of Justice (see 1.2.) and on the last day of December 2019 the delivery of the decision by the Court of Appeal of Belize confirming that the word sex in the constitution includes sexual orientation (1.3). 

Also of interest, but not directly relevant to the matter of criminalisation, is the same-sex marriage case in Cayman (see para 3 below] and lack of any legal rights and protections for LGBTI people in the British Overseas Territories of the Caribbean, a legacy result of British colonial laws as highlighted recently by Stonewall (see <https://www.stonewall.org.uk/about-us/news/fight-marriage-equality-not-over>).

1.1. Research in the Caribbean: meeting with Secretary of State of the Vatican

During the spring, I led a delegation of more than 50 influential leaders to meet Cardinal Pietro Parolin, the Holy See’s Secretary of State, in Rome (the meeting had originally been scheduled to take place with Pope Francis, but was rescheduled at very short notice with the Secretary of State due to reasons of the agenda of the Pope).  Among the participants, in addition to Baroness Helena Kennedy and the Honourable Michael Kirby, the Director and Co-chair respectively of the Human Rights Institute of the International Bar Association, there were representatives from a number of organisations worldwide, including lawyers, advocates, politicians, business leaders, LGBTI activists and high representatives of multilateral organisations such as the UN, OAS, etc.  

The purpose of the meeting was to present to Pope Francis the preliminary conclusions of the research in the Caribbean and to take the opportunity to discuss more broadly the global decriminalisation of homosexuality in order to petition leaders of the Catholic Church actively to support decriminalisation.  This was the first formal meeting in history to be held between authorities of the Roman Catholic Church and LGBTI groups and their supporters.  

We have continued in our efforts since then to obtain a formal response to our petition from the Holy See or Pope Francis personally.  For instance, Baroness Kennedy has written on two occasions, Justice Kirby on one occasion and I on one occasion since the meeting.  Jonathan Miller of Open for Business has also kindly done so during the summer of 2019.  In addition, I have been working continuously with contacts at the Vatican to explore what may be achievable.  Although we have yet to receive a formal reply to the petition, movements by the Holy See since our meeting are nonetheless encouraging. I shall share a few examples that are already in the public domain:

·      Pope Francis on sexuality and social justice

During the Pope’s journey to Mozambique last September, Pope Francis had a meeting with a group of 24 Jesuits. The pope invited them to ask questions, one of which elicited the following answer from Pope Francis: “We focus on sex and then we do not give weight to social injustice, slander, gossip and lies. The Church today needs a profound conversion in this area.”

See < https://www.newwaysministry.org/2019/10/05/quote-to-note-pope-francis-on-sexuality-and-social-justice/>

·      Pope Francis compares politicians who rage against homosexuals to Hitler

During the International Conference on Criminal Law held in Rome last November, Pope Francis while addressing the Conference stated that politicians who rage against homosexuals, gypsies and Jews remind him of Hitler.

See <https://www.reuters.com/article/us-pope-lgbt-hitler-idUSKBN1XP1MM>

·      Revisit the biblical view on homosexuality

Pope Francis requested to the Pontifical Biblical Commission to revisit the biblical view on homosexuality.  The work published this month (only in Italian so far) offers a new vision of how the bible and the church’s tradition have conveyed its doctrine regarding homosexuality: “An archaic and historically conditioned mentality”.  The work affirmed that this archaic view must give way to “a new and more adequate understanding of the human person, from a radical preservation of the exclusive promotion of the heterosexual union in favour of an analogous acceptance of homosexuality and homosexual unions.”.  For example, condemnation of homosexuality is derived from some biblical text that what really disapproves is paedophilia, it is explained. In this sense, it adds that “certain formulations of biblical authors, such as the disciplinary guidelines of Leviticus, require an intelligent interpretation that safeguards the values ​​that the sacred text intends to promote, thus avoiding repeating verbatim what also entails cultural features of those times.”.  

The book: Che cosa è l’uomo? Un itinerario di antropologia biblica (Libreria Editrice Vaticana, 2019) <http://www.libreriaeditricevaticana.va/content/libreriaeditricevaticana/it/novita-editoriali/che-cosa-e–l-uomo.html>

See (in Spanish only) <https://www.vidanuevadigital.com/2019/12/19/el-vaticano-presenta-las-uniones-homosexuales-como-expresion-legitima-y-digna-del-ser-humano/>

See also <http://www.vatican.va/roman_curia/congregations/cfaith/pcb_doc_index_it.htm>

1.2. Caribbean Court of Justice

The decision by the Caribbean Court of Justice (“CCJ”) in Nervais v Barbados [2018] CCJ 19 (AJ) of last year reversed two previous and recent decisions of the Judicial Committee of the Privy Council (“JCPC”).  It reversed Newbold v Commissioner of Police (2014) and Boyce v The Queen (2004). The decision in Nervais was also confirmed for Guyana in McEwan v Guyana [2018] CCJ 30 (AJ).

The importance of these cases must not be understated. They put an end to judicial colonial ruling that for more than half a century since the granting of formal independence in the 1960s had subjected these new independent nations of Barbados and Guyana to the rather unpalatable situation of enduring colonial laws brought about during the time of Empire, regardless of how inhuman or degrading those laws were then and are today. As Justice Saunders stated inNervais: [Lord Hoffmann’s view] “undermines concepts of independence and sovereignty and reflects his unacceptable idea that the colonial law as applied to the colonial subjects contained all the fundamental rights to which they were entitled.”

The Caribbean Court of Justice has turned Barbados and Guyana, as a consequence of Nervais and McEwan, into fully independent nations.  It remains Trinidad and Tobago only bound by Boyce; it is hoped that when Jason Jones v AG of Trinidad and Tobago reaches the JCPC, the imperial court in London will take the opportunity to revisit the shameful decision in Boyce in light of the recent precedents set in Nervais and McEwan.  

1.3 Court of Appeal of Belize

On 31 December 2019, the Belize Court of Appeal dismissed the appeal that the government had brought against the decision in Caleb Orozco, in which the inferior court had declared in 2016 that the colonial sodomy laws were unconstitutional. The government did not challenge the substance of the decision, but the rather narrow finding that criminalisation violated the rights to non-discrimination on grounds of sex.

See <https://www.humandignitytrust.org/news/belize-court-upholds-finding-that-lgbt-people-are-protected-by-non-discrimination-laws-major-victory-for-human-rights/>

2.    British Overseas Territories: UK ongoing breaches of LGBTI rights 

Last year, the Foreign Affairs Committee of the UK Parliament called for an inquiry into the Overseas Territories, the purpose of which was to debate the future relationship between the UK and its Overseas Territories and the effectiveness with which the FCO is fulfilling its constitutional role with regards to their good governance.  I submitted written evidence to the Committee concerning multiple breaches of the ECHR and the failures of the FCO to manage these Territories effectively.

The Foreign Affairs Committee used my written to evidence to conclude in a report entitled “The future of the UK Overseas Territories inquiry” (published on Thursday 21 February 2019) that it was time for the FCO to implement equal marriage via Order in Council in all British Overseas Territories. It stated that “the Government should set a date by which it expects all Overseas Territories to have legalised same-sex marriage. If that deadline is not met, the Government should intervene through legislation or an Order in Council.”

After the legalisation by Act of the UK parliament of same sex marriage for Northern Ireland this year, the only territories left under the dominion of the UK without any rights for LGBTI people are: Cayman Islands, British Virgin Islands, Turks and Caicos, Monserrat and Anguilla; the remaining 4 countries, 3 crown dependencies and 10 Overseas Territories have all adopted same sex marriage and full equality.  We’ll carry on working to push the UK government to comply with the rule of law, the will of its own Parliament and its international legal obligations, all of which are being ignored or breached by the current British government.

3. Cayman Islands: threat to the Rule of law

3.1.  Failure of the judiciary of the Cayman Islands

In March 2019, Chief Justice of the Cayman Islands, Anthony Smellie (“CJ”), open marriage to same sex couples.  In August 2019, the Court of Appeal of the Cayman Islands (“CoA”), comprised of Sir John Goldring, Sir Richard Field and the Hon Dennis Morrison, considered an appeal as to remedy only. Extraordinarily, the Cayman Islands government (“CIG”) admitted in court, when being questioned by Sir Goldring, to multiple ongoing breaches of the Constitution and the ECHR, although when questioned as to remedy declined to answer.

In November 2019, the CoA overturned the CJ’s remedy (The Deputy Registrar and the AG of the Cayman Islands v Day and Bodden Bush CICA No 9 of 2019 – 7 November 2019 (Cayman Islands)). We respectfully disagree with this conclusion; an appeal is being launched at the time of writing this message.   Alarmingly, in addition, the CoA failed to provide any effective alternative remedy regarding the admitted breaches and observed recalcitrance, setting a dangerous precedent: there is no effective remedy in court when existing legislation precludes access to constitutional rights. This failure of the CoA to discharge its constitutional role undermines the rule of law of the Cayman Islands.

See: ‘Cayman Islands: Threat to the Rule of Law’ Dr Leo Raznovich, Counsel Magazine December 2019: <https://www.counselmagazine.co.uk/articles/opinion-cayman-islands-threat-to-the-rule-of-law>

3.2 Intimidation by legislators of the Cayman Islands

In a recent debate of the Cayman Islands that followed the decision of the Court of the Appeal, legislators proposed I be deported due to my pro bono legal representation of LGBTI people and organisations in the jurisdiction. Legislators called on members of the public to write to the CIG, pursuant to the Customs and Border Control Law, asking that I be declared a ‘prohibited immigrant’ and be taken from home in the middle of the night while sleeping and put on a plane back to the UK.  (See Debate in the Legislative Assembly of the Cayman Islands 22 November 2019(www.youtube.com/watch?v=TwTMXYXDEJw) – interventions by legislators Anthony Eden, Ezzard Miller and opposition leader Arden McLean at 18:56, 32:55, 56:37 and 1:00:02).  See also MLAs push AG to deport gay lawyer, Cayman News Service, 24/11/19)  

These threats, unchallenged by the CIG, demonstrate poor governance and disregard for the rule of law. It is an attempt to curtail basic human rights and deter advancement of LGBTI rights. We are witnessing an acceleration of the erosion of the rule of law that has been ongoing for some time and to which the CoA’s decision has contributed. 

3.3 International condemnation ensued these intimidating remarks

The Human Rights Institute of the IBA reacted swiftly in a letter sent by Baroness Kennedy to the Cayman bar association (Cayman Islands Legal Practitioner Association) and to the Cayman Islands Human Rights Commission.  In the letter, the Human Rights Institute of the IBA requested each organisation’s intervention and defence of the rule of law. To date, neither organisation has made a public statement on this matter.

Stonewall also issued a strong press release condemning as “deplorable” the debate in the Cayman Islands legislature

(see <https://www.stonewall.org.uk/about-us/news/fight-marriage-equality-not-over>

4.    Annual conference and agenda of the LGBTI Committee

During our conference in Seoul, the IBA was invited to attend a meeting with local LGBTI organisations to discuss the pending case before the Constitutional Court of South Korea concerning criminalisation of homosexuality in the military.  At the meeting, which took place in the Australian Embassy, Justice Kirby kindly invited me to attend with him.  We met with South Korean LGBTI leaders and discovered that the situation of LGBTI people in the country is direr than first thought.  In addition to the Government hunting LGBTI military servicemen, LGBTI people in prison are, for instance, forced into having HIV tests and if positive are obliged to spend the rest of their term in prison in solitary confinement.  The agenda of the LGBTI committee did not touch any of these areas. These are areas in which LGBTI organisations in South Korea are desperate to gain knowledge and contacts around the world.  Justice Kirby and I have remained in touch and are helping South Korean organisations to move on the agenda.

Given the interesting knowledge gleaned in Korea, I hope that the geographical location of our next annual conference will likewise provide opportunity to cover matters that matter to LGBTI people of the region.  For instance, in Caribbean region (being the geographical region to which Miami belongs), there are still 9 countries where homosexuality is criminalised, with a number of them actively enforcing those laws.  In the Americas in general, according to data from the Inter-American Commission on Human Rights (IACHR) Rapporteurship on the Rights of Lesbian, Gay, Bisexual, Trans and Intersex persons (LGBTI) published in 2015, 594 people who were LGBT, or who were perceived to be LGBT, were killed and 176 persons were victims of serious attacks. Such 770 acts of violence against LGBT persons were recorded in 25 of the countries within the American continent. In an update published by the IACHR in 2018, it is reported that the levels of physical, psychological, and sexual violence toward this community remain constant.

We have the benefit of hindsight through our experience in Seoul and should learn from that and not inadvertently neglect nor disrespect the plight of those in the region in favour of focusing on the developed nations of Europe and North America.  A balanced agenda should be achievable.   

See Inter-American Commission on Human Rights Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas (Organisation of American States Doc 36 2015) <http://www.oas.org/en/iachr/reports/pdfs/ViolenceLGBTIPersons.pdf>     

See also Inter-American Commission on Human Rights Advances and Challenges towards the Recognition of the Rights of LGBTI Persons in the Americas (Dec 2018) <https://www.oas.org/en/iachr/reports/pdfs/LGBTI-RecognitionRights2019.pdf>

Dr Leonardo J Raznovich, Barrister 
Visiting Senior Research Fellow 
Intersectional Centre for Inclusion and Social Justice

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