Challenging Barbados' Discriminatory Sexual Offences Act

Amelia Fung (3L)

In a historic decision released on September 6, 2018, India's Supreme Court unanimously overturned their colonial-era prohibition on consensual gay sex. This is a cause for celebration, as the number of countries which criminalize gay sex continues to decrease.

In 73 countries around the world, certain sexual conduct between consenting adults is criminalized. Why? Because the type of sexual conduct predominantly occurs between adults of the same sex. In the Caribbean, these laws have rarely been enforced in recent years. However, they remain problematic as their continued existence helps maintain the culture of discrimination, harassment, and violence against LGBTQ+ individuals.

On June 6, 2018, three Barbadians filed a petition to the Inter-American Commission on Human Rights, challenging two sections of Barbados' Sexual Offences Act that criminalize sexual conduct between those of the legal age to consent. Section 9 criminalizes buggery, which the Barbadian courts confirmed to mean anal sex. Section 12 criminalizes serious indecency. Both acts can result in imprisonment notwithstanding the consent of the participants. 

The three petitioners – a trans woman, a lesbian, and a gay man – argue that not only do the laws violate the right to privacy for all Barbadians, they also legitimize the persecution of a minority group. Although they appear neutral regarding sexual orientation, the laws indirectly encourage discrimination and abuse against LGBTQ+ people, turning them into presumed criminals. The effects of this state-sanctioned homophobia are broad, resulting in an environment of hatred and fear. As such, LGBTQ+ people are reluctant to seek sexual health services, including critical HIV services, undermining an effective national response to HIV.

The petitioners are not taking a novel position on the law. During Barbados' Universal Periodic Reviews, Barbados repeatedly rejected recommendations to decriminalize sexual conduct between consenting adults. The state’s stance on decriminalization is at odds with the international human rights treaties it has ratified and with jurisprudence from other countries in the Americas. In a recent decision from earlier this year, the High Court of Justice of Trinidad and Tobago declared that analogous provisions, which criminalized buggery and serious indecency, were unconstitutional. This decision follows a similar ruling in Belize in 2016.

The Canadian HIV/AIDS Legal Network, Trans Advocacy & Agitation Barbados, and the International Human Rights Program (IHRP) at the University of Toronto's Faculty of Law provided support to the petitioners. As a clinic student with the IHRP, I was involved in each step of the petition, from the initial research on the current situation regarding LGBTQ+ rights in Barbados to drafting legal arguments explaining how the laws violate the petitioners' rights guaranteed under the American Convention on Human Rights.

Alexa Hoffmann, Maurice Tomlinson, and Yvonne Chisholm discussing the petition at the press conference at the Cave Hill Campus of the University of the West Indies in Barbados in June 2018.
Alexa Hoffmann, Maurice Tomlinson, and Yvonne Chisholm discussing the petition at the press conference at the Cave Hill Campus of the University of the West Indies in Barbados in June 2018. Credit: Conference attendee.

I worked closely with the petitioners to draft their affidavits. Our lead petitioner, Alexa Hoffmann, is a human rights advocate and trans woman. The amount of passion she puts into her advocacy work is outstanding. While working on her affidavit, Alexa explained that the homophobic harassment, discrimination, and abuse she endured throughout her life is exacerbated by the existence of the laws criminalizing sexual conduct between consenting adults. She told me about minor issues, such as being physically blocked from getting on to a bus by the driver and her mother's unwillingness to travel with her due to concerns of being subjected to harassment. Alexa also spoke of very painful experiences, such as when she was viciously attacked with a meat cleaver and when she was physically assaulted outside of a grocery store by a group of men. The homophobia she experiences is not limited to adults. Alexa mentioned that earlier this year, a toddler charged at her, shouting homophobic slurs at the encouragement of the child's father.

In her affidavit, Alexa states: "My sexual orientation and gender identity should not prevent me from taking public transit, attending events, starting a relationship, or even visiting a doctor – but unfortunately, all of this occurs.  I have faced constant harassment, threats, and violence from complete strangers to members of my own family. Outside of my own home, I do not feel safe. The police, the very people who are supposed to protect me, seem to contribute to the problem by not taking me seriously." She stressed that sections 9 and 12 of the Sexual Offences Act need to be changed, or they will continue to legitimize discrimination, harassment, and violence against the LGBTQ+ community in Barbados.

The other two petitioners remained anonymous. They were worried about repercussions from contributing to the petition. In one affidavit, a petitioner stated: "All of this leaves me wanting to die. I want it to change here, but mentally, I die a little each day." All three petitioners want a future where they, and all LGBTQ+ people, will feel safe in Barbados. In particular, they hope that the younger generation of LGBTQ+ people will lead vastly different lives than their own, with far less harmful experiences.

Maurice Tomlinson, a senior policy analyst with the Canadian HIV/AIDS Legal Network, was the backbone to this challenge. His expertise in LGBTQ+ issues in the Caribbean and experience challenging a similar law in Jamaica were indispensible to the petition. The support the petition received from Evan Rankin, IHRP alumni, and Yvonne Chisholm, pro-bono litigation counsel, was also invaluable. Lastly, this would never have been possible without the petitioners.

Working on the petition was a highly valuable learning experience, from giving me a chance to further develop my legal research and writing skills in a human rights context to learning how to best advocate for the petitioners while navigating the politics surrounding LGBTQ+ rights in Barbados. However, it was the people that I had the privilege of working with that really brought this project together. I doubt I would have learned as much as I did about international human rights law and advocacy without them.

It is uncertain when the Inter-American Commission on Human Rights will hear the petition. Nevertheless, the petition will serve a dual purpose. Not only will it directly challenge Barbados' discriminatory laws, but it will also serve as an advocacy piece on LGBTQ+ rights. It is an opportune time to rally for change in Barbados, as  a new government led by Mia Mottley was elected in May 2018. Mottley, Barbados' first female prime minister, has previously spoken out in favour of decriminalizing buggery. I am hopeful that the new Barbadian government will bring forth changes that address the concerns raised in the petition.