Landmark decision on Jamaican anti-LGBTQ+ laws
A top human rights commission in the Americas has found the Jamaican government responsible for violating multiple rights of LGBTQ+ people in Jamaica, and recommends significant reform in a landmark human rights case in the region.
Freshfields has been working on the matter for its client, the Human Dignity Trust (HDT), for nearly 10 years. HDT initiated the legal challenge in support of Gareth Henry and Simone Edwards, both of whom were forced to flee Jamaica after experiencing severe violence and discrimination as a result of their sexual orientation. Their petition was filed with the Inter-American Commission on Human Rights (IACHR) in 2011. Since then, over 60 Freshfields lawyers and trainees have worked pro bono on the case.
The IACHR report, which was made public on 17 February 2021, recommended that Jamaica repeal its homophobic laws on the basis that they are a violation of international law – including several provisions of the American Convention on Human Rights 1969 (of which Jamaica is signatory).
Significantly, it is the first time the Commission has found that a state is in violation of its international human rights obligations by maintenance of laws that criminalise the LGBTQ+ community and the associated failure to protect its LGBTQ+ citizens from discrimination on the basis of their sexual orientation.
The victory will have wider implications in the Americas, including the 24 other countries in the region that have ratified the Convention, some of which also continue to criminalise consensual same-sex intimacy. Téa Braun (Director of HDT) said of the report: 'It is a highly significant step forward that must now accelerate the repeal of these stigmatising and discriminatory laws.'
Violating rights, legitimising violence
Throughout the case, Mr Henry, a gay man now living as a refugee in Canada, and Ms Edwards, a lesbian who was also forced to flee the country, argued that sections of these British colonial-era laws violate their rights and legitimise violence towards the wider LGBTQ+ community. In particular, the antiquated, colonial-era Offences Against the Person Act 1864 outlaws acts of ‘gross indecency’ and sets out punishments of up to 10 years imprisonment with hard labour.
The IACHR found that the law violated a number of Mr Henry’s and Ms Edwards’ rights, including the principle of non-discrimination and the rights to private life, humane treatment, freedom of movement and judicial protection. In its report, the IACHR stated that the laws had a disproportionate impact on the LGBTQ+ community and perpetuated human rights abuses and violence against them. The IACHR has recommended Jamaica repeal the offending provisions in the 1864 Act and take steps to stop discrimination and violence against the LGBTQ+ community.
Ms Edwards was shot multiple times outside her home in 2008 by two men belonging to a homophobic gang, who tried to kill her and her two brothers, one of whom is also gay. Following a series of police refusals to protect her and her family, she was granted asylum in Europe. She said: 'It’s a real boost to see that the Commission is taking our complaint seriously. It gives me hope that one day these outdated laws will be done away with, and I’ll be able to return to my homeland without fear of attack.'
Mr Henry, who sought asylum in Canada in 2008 after enduring homophobic police brutality and repeated attacks by homophobic mobs and gangs, added: 'I take heart from the Commission’s bold and principled decision, and sincerely hope that it signals the beginning of meaningful change for our country.'
A catalyst for change
Téa Braun said of Freshfields, 'The unwavering support and commitment of Freshfields to this case over almost a decade has helped to secure a ground-breaking decision that vindicates the rights and lived experiences of Mr Henry, Ms Edwards and all LGBTQ+ Jamaicans. We are incredibly grateful to the many outstanding lawyers who have worked with us to achieve this landmark victory.'
Freshfields’ partner with conduct of the case, Andrew Austin, lauded the landmark findings: 'This is an important decision, which I hope will drive further change in the region.'
Freshfields’ pro bono work is focused on promoting access to justice for marginalised individuals, for whom the firm aims to have the greatest possible impact through important work like this.