Visibility is liberty

In accordance with the rules of the CCJ, Tomlinson wrote to the Jamaican Government, asking that it insist that the Governments of Belize and TT remove this unreasonable travel restriction, on the basis that it violates the provisions for free movement of persons in CARICOM, but the Jamaican Government declined to take the cases. Tomlinson in early 2012 had told the Toronto Sun that “in Jamaica, I have a good friend,” a reference to Jamaican Prime Minister Portia Simpson-Miller who in 2011 during the general election campaign said she would consider appointing anyone she felt was most qualified for her Cabinet regardless of sexual orientation and added that she wanted to see conscience votes allowed by the major parties on gay rights issues in Parliament. But in the end, she “totally caved to the church,” says Tomlinson.

I spoke to Tomlinson via Facebook earlier this week.

“The Jamaica PM has been a disappointment,” he admitted. “The reality is that Jamaican LGBT will have to use the courts to gain our liberation as our Parliamentarians clearly lack the intestinal fortitude to show leadership on this issue.”

Jamaica is one of the most homophobic societies in the Caribbean. Wikipedia says that Amnesty International has “received many reports of vigilante action against gay people by members of the community, and of ill-treatment or torture by the police. Gay men and lesbian women have been beaten, cut, burned, raped and shot on account of their sexuality.” In June 2004, founding member and the public face of the Jamaican Forum for Lesbians, All-Sexuals and Gays (J-FLAG) and Jamaica’s leading gay-rights activist, Brian Williamson was stabbed to death in his home. Police ruled that the murder was the result of a robbery, but J-FLAG believes his murder was a hate crime. Human Rights Watch (HRW) researcher Rebecca Schleifer had a meeting with Williamson that day, and arrived at his home not long after his body had been discovered. She found a small crowd singing and dancing. One man called out, “Battyman he get killed.” Others were celebrating, laughing and shouting “Let’s get them one at a time”, “That’s what you get for sin”. Others sang “Boom bye bye”, a line from a well-known dancehall song by Jamaican star Buju Banton about shooting and burning gay men. “It was like a parade,” says Schleifer. “They were basically partying.”

Dancehall culture perpetuates homophobic attitudes. “Shot battybwoy, my big gun boom,” sings Sizzla. “Jamaican reggae singer, Queen Ifrica,” Tomlinson posted, “could not resist the urge to spew homophobic vitriol at an event meant to celebrate Jamaica’s independence. This took place in the presence of many impressionable children, several dignitaries as well as the country’s Prime Minister, the Most Honourable Portia Simpson-Miller.”

Tomlinson, 43, was forced to flee Jamaica in 2012 after his marriage in August 2011 in Toronto Canada to a pastor had been posted online by the Jamaica Observer. Within a few hours, the Observer article had attracted more than 20 online death threats. He now lives between Canada where he teaches law at the University of Ontario, Institute of Technology; Rochester New York where his husband Tom Decker is pastor of Open Arms Metropolitan Community Church; and Jamaica where he has a law practice and is involved in cases challenging the anti-gay laws across the Caribbean. However, when in Jamaica, he has to take precautions.

“I have a security protocol that I use when I return to Jamaica.”

And so he must. Only recently, a 17-year-old cross-dresser was chopped and stabbed to death at a River party in Irwin, St James. The teen was dancing with a man when a woman at the party recognised him and told that he was not a female, Irie FM News reported. One of the men at the party accosted the teen and conducted a search where he discovered that the teen was not a female. A mob then descended on the teen and chopped and stabbed him to death, before dumping his body in bushes.

The cases against TT and Belize by Tomlinson, also a lawyer with AIDS-Free World, which is supporting his CCJ challenge, stem from his refusal to lie about his sexuality, after he had declined invitations to conduct training and sensitization sessions regarding the rights of individuals infected and affected by HIV and AIDS in Belize in January 2013 and invitations in December 2012 by the United Nations Population Fund to participate in a HIV workshop, and a CARICOM conference on human rights.

Tomlinson told Gay Star News: “The true depths of the Immigration Act run even deeper than the ban on homosexuals. The ugly heart of the statute is displayed in the atrocious language used to describe other prohibited groups.”

There is reportedly a “waiver” for homosexuals that the TT Government can issue. In 2007, then Trinidad and Tobago Chief Immigration Officer Herman Browne issued a special permit to openly gay Sir Elton John, to ensure he had no problems when visiting Tobago for the Plymouth Jazz Festival 2007.

Back then Philip Isaac, Archdeacon of Trinidad and Tobago, warned that the star’s scheduled appearance at an upcoming jazz festival could turn some locals gay. But Tomlinson says that he would not petition the TT Government for a “waiver” because he argues that it is wrong morally as it leads to favouritism as well as it contradicts the CARICOM and UN agreements.

However, in a December 2012 e-mail sent in reply to questions the TT Guardian posed to the National Security Ministry and the Immigration Department after Tomlinson announced he would begin proceedings to challenge the law, Keith Sampson, acting chief immigration officer, said despite Tomlinson’s statements to the media, there was no evidence Tomlinson’s entry into TT would be in breach of Section 8 of the Immigration Act. “Immigration officers do not question prospective entrants as to their sexual orientation,” he said.

Sampson added that an individual’s sexual orientation was not a determining factor in admissibility into a country under the Caricom Single Market and Economy (CSME). He said that immigration policy was under review and recommendations would be made with respect to outdated legislation. Tomlinson nevertheless is insistent. TT’s Immigration Act́s section 8 (1) entitled Prohibited Classes, bans entry to homosexuals.

In that same month, Prime Minister Kamla Persad-Bissessar, according to the TT Guardian reportedly wrote a letter to gay rights campaigner Lance Price, which stated:

“With respect to the concerns raised in your letter regarding aspects of TT’s Sexual Offences Act and the Immigration Act which may target persons who identify as lesbian, gay, bisexual or transgender (LGBT), I wish to assure you that due consideration is being given to these issues by my Government. I do not support discrimination in any form against any individual, regardless of their gender identity or sexual orientation. I share your view that the stigmatisation of homosexuality in TT is a matter which must be addressed on the grounds of human rights and dignity to which every individual is entitled under international law. As such I am pleased to inform you that I have mandated my Minister of Gender, Youth and Child Development, Senator the Honourable Marlene Coudray to prepare and present a national gender policy to Cabinet over the coming months. It is expected that once adopted, this policy will forge the way forward for TT as my Government seeks to put an end to all discrimination based on gender or sexual orientation.” To date the actual terms of the gender policy are yet to be disclosed by the ministry.

Tomlinson has also begun the first challenge to Jamaicás anti-sodomy law which dates back to 1864 and which includes a sentence of 10 years in prison with hard labour. On August 16, 2011 the complaint was filed with the Jamaica Supreme Court on behalf of Dartmouth College graduate Javed Jaghai, who said his landlord kicked him out of his home because of his sexual orientation. Tomlinson has told the Washington Blade—an American gay news source— that the eventual outcome of Jaghai’s case could reverberate throughout the region. Tomlinson said Jaghai’s case could potentially have an impact on relationship recognition of same-sex couples in the Caribbean.

“That would be a long-term effect we expect,” he said. “Right now it’s to get the courts to acknowledge that at least in private same-gender loving individuals have the rights of everyone else.”

Trinidad and Tobago, Barbados and St. Kitts and Nevis are among the 11 English-speaking Caribbean countries that continue to criminalize homosexual acts.

In late June this year the matter had its initial mention in the chambers of Jamaica’s Supreme Court. Justice Carol Edwards gave the attorney general, who is named as the defendant, until mid-September to file a response and the next hearing is scheduled for early October. Jaghai is seeking authorization to take his case to the Constitutional Court.

Tomlinson is also suing three Jamaican television stations for deciding not to air his paid advertisements promoting tolerance for homosexuals in Jamaica.

Tomlinson has asserted that Television Jamaica (TVJ), CVM TV and the government-owned Public Broadcasting Corporation of Jamaica (PBCJ) breached his right to freedom of expression under the Charter of Rights, by not broadcasting his advertisement. The case began at the end of May. According to the Gleaner, Lord Gifford argued that Tomlinson’s right to freedom of speech was breached when the advertisements were not aired. He said Tomlinson was seeking a declaration that the defendants’ refusal to air a paid advertisement promoting tolerance for homosexuals in Jamaica and which was not in violation of any of Jamaica’s broadcasting acts and regulations amounted to a breach of his constitutional right to freedom of speech as guaranteed by Section 13 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendments) Act 2011.

Tomlinson is asking the court to rule that the charter guarantees him freedom of speech and also protects a more specific right to free speech in the media by giving him the right to distribute or disseminate information, opinions and ideas through any media, including television. He expects the Constitutional Court to deliver its decision next month.

He says he can’t say what the outcome might be.

“It was very close. The questions the three judges asked were very conservative. So, I suspect they will deliver a very conservative judgment.”

Tomlinson recently posted this commentary on his Facebook page: “The Jamaican fundamentalist religious group, Love March Movement (LMM), which last year held an anti-gay march through the streets of the capital, Kingston is planning to stage an even bigger event this year on September 14, 2013. This follows island-wide anti-gay mass protests organized by the island’s churches, which were led by the Open Bible Standard Churches headquartered in Des Moines, Iowa.

This latest march will take place just two months after the barbaric mob killing in Montego Bay of 17 year-old cross-dresser, Dwayne Jones; the mobbing of a suspected gay police officer in Kingston and a near fatal mob home invasion of two suspected homosexuals in St. Catherine. Despite the fact that Jamaica’s Minister of Justice, many of the island’s religious leaders and civil-society groups all condemned these latest attacks on gay Jamaicans, LMM, and its sister organization, the Lawyers Christian Fellowship, have remained silent.”

“During a similar anti-gay march in Haiti which took place last month two homosexual men were viciously assaulted. Subsequently 47 LGBT individuals in the country were attacked. Belize also witnessed an anti-gay march earlier this year during which the LGBT organization, UNIBAM was hung in effigy. A Belizean government minister condemned this action and the religious organizer of the march subsequently apologized while lamely claiming that the parade was too large for him to notice the prominent homophobic effigy. Ironically, the LMM has applied to be joined as an interested party in the domestic challenge to Jamaica’s anti-sodomy law on the ground that the law’s repeal would strip them of the right to freely condemn homosexuality.”

American fundamentalist churches are reported to be leading the anti-gay movement in the Caribbean. The Guyana Times on July 29, 2013 reported that Red Thread, Help and Shelter, Artistes In Direct Support and the Society Against Sexual Orientation Discrimination had joined the Caribbean Vulnerable Communities Coalition (CVC) and other civil society groups in the region in condemning increasing homophobic and transphobic violence in the Caribbean.

In a joint release, the groups said CVC and its partners are deeply concerned by a stream of reports coming from Caribbean civil society organisations about incidents of violence towards lesbian, gay, bisexual and transgender (LGBT) people, the article stated. According to the groups, “these tragic events are not isolated acts, but instead a reflection of systematic discrimination and violence experienced by Caribbean LGBT people, particularly the most visible and vulnerable. Organisations such as United and Strong in St Lucia, United Belize Advocacy Movement in Belize, and Jamaica Forum for Lesbians All-Sexuals and Gays (J-FLAG) in Jamaica, Trans Always Friends (TRANSSA) and the Community of Trans-Transvestite Dominican Sex Workers (CONTRAVETD) in The Dominican Republic often have to deal with similar horrific threats, harassment and violence towards their communities because of their sexual orientation, gender identity and expression. This violence is a consequence of fundamentalist and hateful discourses towards LGBT communities and is likely to be replicated if urgent action is not taken.”

Ironically, Tomlinson says he “grew up in a fundamentalist church.” He came out of the closet and went back in a few times before finally deciding “to live authentically as a gay man” when he was in his mid-thirties.

“I only accepted my orientation after I left the church. It was both a relief and a challenge as I lost some good friends, including many persons,” he says. “My mom was very supportive, even though she doesn’t understand my orientation. She is reading a lot about SOGI (Sexual Orientation and Gender Identity) issues in order to discuss the issue intelligently. My father and brothers still struggle.”

The fearless Tomlinson who last year received the inaugural David Kato Vision and Voice Award, inspired by the life of Ugandan gay rights activist, David Kato, who was murdered for his sexuality, now awaits the CCJ́s decision on whether he can sue TT and Belize for their immigration ban on homosexuals. If the CCJ grants him leave, it will be an unprecedented case for the Caribbean.