Sherry-Ann McGregor, Contributor

Mcgregor

The recent response by Prime Minister Golding to questions asked during a BBC interview about homosexuals has evoked diverse comments. These comments range from outrage at the fact that the prime minister would openly promote discrimination against homosexuals by stating that he will not allow them in his Cabinet; to lauding for a courageous stance which reflects the prevailing view of the majority of Jamaicans.

It is against this background that I have reminded myself about the state of our laws vis-a-vis homosexuality and discrimination to ascertain whether we have 'gay rights' in Jamaica.

Homosexuality

Section 76 of the Offences against the Person Act creates the absolute offence of buggery, which makes its illegal for men to engage in sexual activities with each other. Buggery is proven by evidence that there is penetration of the anus of a man, woman or animal by the male organ. Unlike rape, consent is no defence to the crime of buggery.

Based on this act, it is often said that homosexuality is illegal in Jamaica; and similar laws can be found in many Caribbean countries, including Barbados. Within this context, Jamaica has been described in several arenas as 'the most homophobic place on Earth', and this title finds support in the violent anti-gay lyrics found in many songs and criminal acts perpetrated against openly gay persons.

Discrimination

Prime Minister Golding's statement may be interpreted to mean that there is an official bias against the employment of homosexuals in the Jamaican Cabinet. Gay rights activists have argued that this demonstrates an unfair bias and is openly discriminatory against individuals who may be otherwise suitably qualified to hold such positions.

There are very few laws which are geared towards preventing discrimination and there is no general anti-discrimination legislation. For this reason, there is no direct legal recourse for acts of gender, racial or sexual bias. In short, there is no law which prevents discrimination against an individual on the basis of his sexual preference.

One may recall the proposed amendment to the Constitution to include a Charter of Rights. It has not yet made it to this administration's legislative agenda. However, while the proposed amendment makes provision for the inclusion of a right against discrimination on the basis of one's gender or race, it does not refer to one's sexual preference.

It is true to say that many debates have erupted over proposals to legalise homosexuality in Jamaica. Proponents of the view that the offence of buggery should be excised from our laws often rely on external economic pressure to support the call, while opponents rely on prevailing local religious, moral, social and cultural mores. It is left to be seen which one will succeed.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.