Homophobia and Homophobic Laws: Legacies of Colonialism in SVG

KINGSTOWN, St. Vincent – Today, we live in a world of diversity. Human beings have a range of different characteristics, backgrounds, and beliefs. We may not always understand or agree with many of these differences, but the fact is, they exist. Difference should not be something we hate or criminalize but rather to seek to understand and where possible, embrace and accept.

Last Friday, High Court judge, Justice Esco Henry dismissed a lawsuit brought by Javin Johnson and Sean Macleish, (above) challenging the island’s buggery and gross indecency laws.Differences also exist in the areas of human sexual orientation, gender identity, gender expression, and sex characteristics.

The Yogyakarta Principles state that, sexual orientation “is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender”, and gender identity “is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms”.

Concerning gender expression and sex characteristics, the Yogyakarta Principles Plus 10 states that, gender expression “is each person’s presentation of the person’s gender through physical appearance – including dress, hairstyles, accessories, cosmetics – and mannerisms, speech, behavioural patterns, names and personal references, and noting further that gender expression may or may not conform to a person’s gender identity”.

Sex Characteristics are understood as “each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty”.

Over the years, issues concerning the rights of lesbian, gay, bisexual, transgender, and other groups of people who belong to a sexual and gender minority that defies “traditional heteronormative or cis-normative values or norms”, have been hot topics in Vincentian society. This has now been heightened due to the recent decision of the High Court to not only dismiss cases challenging anti-LGBTQ+ laws in St. Vincent and the Grenadines (SVG) but to apparently, also justify them based on public health and public morality grounds. Grounds that have long been debunked internationally and regionally.

Arguments often used by those who oppose the rights of sexual and gender minorities that defy “traditional norms and values”, include that these “values” are not Vincentian, and/or that they are somehow “foreign”.

SVG is a constitutional democracy (not a theocracy) with a constitution that recognises differences amongst humanity and protects the fundamental rights and freedoms of all persons in SVG, with rights such as freedom of conscience (which is far more expansive than any one religion such as Christianity), freedom of expression (which can be interpreted to include acts of gender expression or sexual expression), and protection from discrimination (which can be interpreted to include grounds such as sexual orientation), etc.,

Yet some persons seek to deny lesbian, gay, bisexual, transgender, and other groups of people whose sexual orientations, gender identities, gender expressions, and/or sex characteristics defy social expectations, their rights and freedoms.

Some persons also support discriminatory laws such as the “buggery” and “gross indecency” provisions under SVG’s Criminal Code that amongst other things, criminalize private consensual same-sex relations or conduct (hereinunder referred to as the “Buggery Laws”).

However, it can be argued that the Buggery laws which perpetuate and give social and legal sanction to homophobia in Vincentian society, are a legacy of British colonialism. The origins of British Buggery Laws date back centuries and evolved over time through laws such as the Buggery Act, 1553, the Offences Against the Person Act, 1861, and the Criminal Law Amendment Act in 1885, etc.

While the British Parliament decriminalised private consensual same-sex relations amongst adults in 1967, have made significant progress in advancing LGBTQ+ rights, and now condemns anti-LGBTQ+ laws, SVG and many other Caribbean countries that were once colonized by the British empire, are still reeling and grappling with the negative impacts of the legacy of British colonialism.

Before the British settled in SVG, there were no laws criminalising private consensual same-sex relations between adults. These laws were “imported” or “transplanted” to SVG by the British.

Therefore, those that argue that the Buggery Laws should be kept because they are somehow Vincentian, these laws were never Vincentian to begin with in the first place. As with many ideas and institutions under colonialism, they were “forced” unto the people. Buggery laws are therefore originally foreign to Vincentian society. Now, since after independence they still remain on the books, the State by its retention of these laws, has seemingly accepted the “foreign” as its own.

These laws continue to exist in SVG because of state-sanctioned homophobia. No society that was shaped in slavery and discrimination should ever seek to unjustifiably uphold or promulgate the legal oppression and social discrimination of others.

Moreover, it is recognised that apart from just colonial laws, other factors have contributed to the homophobia existing amongst some persons in Vincentian society. Another factor is the influence of religion. Religious beliefs are often used to justify homophobia, and even the continued retention of the Buggery laws.

This was put on full display in the cases challenging the Buggery laws in SVG, in which churches were allowed to join as interested parties and supported the retention of the Buggery laws.

Ironically, many of these same religious beliefs also did not originate from SVG. For example, the religion of Christianity was brought by many British or European settlers to SVG. At the time of European colonisation, it was not originally the religion of the indigenous people (many of whom were persecuted and murdered), living on SVG’s islands and/or cays.

However, you know what isn’t foreign? Gay, lesbian, bisexual, transgender, and other groups of people of different sexual orientations, gender identities, gender expressions, and/or sex characteristics that were born and/or grew up right here in SVG.

Yes, though some may try to pretend otherwise, they exist, and currently they exist under the shadow of discriminatory Buggery laws. Buggery Laws with up to 10 years imprisonment now confirmed to be valid by the High Court.

According to the Inter-American Commission on Human Rights in its 2015 “Violence Against LGBTI Persons in the Americas” report, buggery laws “provide a social sanction for abuse, breed intolerance, and have been used to justify arbitrary detention, police abuse, and extortion and torture”.

Human Rights Watch in its ground-breaking 2023 report “They Can Harass Us Because of the Laws” Violence and Discrimination against LGBT People in St. Vincent and the Grenadines”, elaborated that under the shadow of discriminatory laws, sexual and gender minorities in SVG face physical and verbal assaults, family violence, homelessness, workplace harassment, bullying, and sexual violence.

This report also revealed that those responsible for this mistreatment include people close to LGBT people — family members, neighbours, co-workers, classmates, and teachers — as well as strangers and disappointingly, even police officers.

Amongst other things, Human Rights Watch recommended that the legislature repeal the country’s colonial-era laws that criminalise consensual same-sex conduct and pass comprehensive civil legislation prohibiting discrimination based on sexual orientation and gender identity.

The legislature is yet to do any of the aforementioned and the High Court’s shocking decision breaks recent trends in the region and the eastern Caribbean.

No person’s culture, tradition, religion, or values should ever be used to justify the criminalisation and oppression of lesbians, gays, bisexuals, transgender persons, and other groups of people whose sexual orientations, gender identities, gender expressions, and/or sex characteristics defy social norms.

According to the Inter-American Commission on Human Right’s 2015 “Violence Against LGBTI Persons in the Americas” report, “the Inter-American Court on Human Rights has indicated that while it is true that certain societies might be intolerant with respect to a person’s sexual orientation (or, for that matter, a person’s race or nationality), States cannot use this as justification to perpetuate discriminatory treatments.

On the contrary, States must confront intolerant and discriminatory expressions in order to prevent exclusion”.

Today, I encourage the state, the government, and the people of SVG to take a stand against buggery laws and positive action to respect and protect the human rights of gay, lesbian, bisexual, transgender, and other groups of people belonging to different gender and sexual minorities, who are not foreign but were born and/or grew up right here in SVG.

And even if they may leave for some time, they are still Vincentians, who can at any time return to SVG. Yes, they exist and deserve protection from people who wish to exclude, harm, and/or abuse them in SVG.

Jeshua Bardoo is a St. Vincent and the Grenadines attorney with an LLM in international human rights law. He is also the founder and president of Equal Rights, Access and Opportunities SVG Inc.