Gresham College Lectures

LGBT Rights: Overcoming a Colonial Legacy - Leslie Thomas KC

February 16, 2024 Gresham College
Gresham College Lectures
LGBT Rights: Overcoming a Colonial Legacy - Leslie Thomas KC
Show Notes Transcript

Historically lesbian, gay, bisexual and transgender (LGBT) people have been persecuted under English law.

Homophobic and transphobic laws were exported from England to the Commonwealth Caribbean, and these colonial laws have had a long-term impact on Caribbean societies.

This lecture will make the case for the robust constitutional protection of LGBT rights.


This lecture was recorded by Leslie Thomas KC on 1st February 2024 at Barnard's Inn Hall, London

The transcript and downloadable versions of the lecture are available from the Gresham College website:
https://www.gresham.ac.uk/watch-now/lgbt-law

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Quote, it takes no compromise to give people their rights. It takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression Harvey Milk. Thank you. Thank you for joining me today as we delve into the complex and deeply nuanced landscape of LGBT rights in the Commonwealth Anglo Caribbean. Now <laugh> in 45 minutes to an hour, I don't think I'm going to be able to do proper justice to this topic. I will try my best. The Gresham College lecture that you're listening to right now is giving you knowledge and insight from one of the world's leading academic experts making it takes a lot of time, but because we want to encourage a love of learning, we think it's well worth it. We never make you pay for lectures, although donations are needed, all we ask in return is this. Send a link to this lecture to someone you think would benefit. And if you haven't already, click the follow or subscribe button from wherever you are listening right now. Now let's get back to the lecture. However, I wish to acknowledge that this is a topic that demands a delicate balance between recognizing the historical influences that contributed to the persistence of anti LGBT laws that have and the lived experience of those affected, while also acknowledging the diverse cultural and religious tapestry that shapes this particular region. It's essential to approach this discussion with an understanding that the journey towards acceptance and equality is neither linear nor universal. As we explore the impact of colonial legacies on restrictive sex laws, it's important to be mindful of the live realities of the people we discuss, especially in societies deeply rooted in religious traditions. The discussion surrounding LGBT rights is not a mere clash of liberal ideal from the global North against the values of the global south. Rather, it's a nuanced exploration on how external influences intersect with deeply ingrained cultural norms. So it's a crucial for us, I think, to engage in this dialogue with sensitivity, respecting the autonomy of Caribbean societies to navigate their own paths towards progress and acceptance. But there's no doubt in the atrocities faced by the LGBT community from persecution, homelessness, murder are undeniable and demand our attention. However, the path to change must be paved with empathy, recognizing Regional differences. My goal is not to impose an external view, but to foster dialogue that allows for understanding, empathy and a shared commitment to human rights. So let's embark on this exploration with open minds. Acknowledging that progress re requires a collaborative effort, one that respects unique narratives of each society whilst working towards the future where all individuals, regardless of sexual orientation, can live free and from fear and discrimination. So thank you. Thank you for being part of this important conversation. Let me begin. In the heart of the C Caribbean, where there are Azure waters which meet golden sands, a perpetual sun that dances across the horizon, there exists a silent struggle concealed beneath the facade of paradise. Imagine a childhood where the realization of one's feelings becomes a clandestine burden and awareness that the very essence of who you are is not only deemed and illegal, but cast aside as immoral. It is within this juxta position of idyllic landscapes and archaic prejudices that we navigate. The legacy of British colonial laws a legacy that continues to this day to cast profound shadow over the lives of so many in the L-G-B-T-Q community. Growing up on an island adorned with the moniker Little Britain one inherits more than the remnants of colonial architects And the echoes of British manners. The legacy includes a tapestry woven with archaic laws that criminalize and ostracize those who do not conform to the heteronormative ideals imposed by a bygone empire. It's a legacy that transcends legal structures. It ill infiltrates the very fabric of society, shape and perceptions, norms, and the lived experience of individuals who dare to love outside the boundaries of convention. Picture a childhood where the first inklings of love are met, not with innocence, but with fear. Where discovering one's authentic self becomes an act of rebellion against societal norms. At social gatherings, the air is tainted with derogatory remarks. Creating a landscape where authenticity is not only discouraged but is dangerous. The struggle to reconcile one's identity of with a society deeply rooted in intolerance, leaves an indelible mark on the soul, a mark that's carried into adulthood as a testament to the enduring impact of a colonial legacy. Let me read to you one account from a young man's experience growing up in the Caribbean. I love my country, it's beaches and it's 365 days a year. Sun. I love the food, the humor, the easiness of the island. But there is a dark underbelly of intolerance, of religious zealousness and of rampant hypocrisy, which if you are not strong enough, will slowly kill you from the inside out. I remember that was, I remember everything that was ever said that hurt me, especially the words said by those I love and who loved me. My father once shouting at my mother and saying, it's because of you and your mother, my grandmother, that he's like that. My mother years later telling me she will never accept this. When I officially came out to her and even my wonderful grandmother once saying that she hopes I find more happiness than my uncle, my uncle, her son is also gay. School was even worse. Any slight movement of the head or hand could give you away. So you had to watch and plan everything carefully. A few days ago, I watched the video of Wentworth Miller, the gay actor who said that every day growing up was like being in survival mode. It is as if he lived my life. All of us grown up gay in the Caribbean are in survival mode. We defend ourselves against the religious leaders and followers who praise the law, demonizing that which they don't understand, or as is commonplace in this island of masks that which they, they are but don't want to see. We defend ourselves against the music, the music of Jamaica, which calls for gay people to be murdered and burned alive. Imagine being in a gay closeted teenager and going to your first party and hearing the words shut the body boy blaring from the speakers. What do you do? You bop your head, cock your hand into the sign of a gun and point it at the guy who is even gayer than you. Point it and humiliate the ones who dare to let their masks fall anonymous. End of quote. Yet as we explore the depths of this struggle, it's crucial to acknowledge the love for the Caribbean, A love that exists alongside the pain. The crystal clear waters and the warmth of the sun are juxtaposed with the darker underbelly of intolerance, religious zealousness, and hypocrisy. It is within this dichotomy that individuals from the LG LGBTQ plus community find themselves negotiating the interest intricacies of identity against the backdrop of a society both beautiful and unforgiven. In the following moments, we will traverse the corridors of history, examining how the echoes of the past resonate in the presence, perpetuating a cycle of discrimination and persecution. Our journey's going to delve into a painful narrative of those despite the challenges who have found resilience and strength, it's a testament to the power of the human spirit to endure, to challenge, and ultimately to redefine narrative for future generations. I hope. In the face of adversity, we find hope. Hope in the emergence of advocacy groups demanding a voice for the LGBTQ plus community in the hope of increasing visibility of role models, challenging the norms and hope in the love stories that begin to shatter the silence. Yet we must also confront the harsh reality that for many years this journey towards acceptance often requires leaving the Caribbean a sacrifice that underscores the arduous path to equality within the region. Our exploration is not only an intellectual endeavor, but a compassionate inquiry into the lives of those who've navigated this complex terrain. It's also an acknowledgement of the collective responsibility to unravel the intricacies of inherited biases, to challenge the norms that perpetuate discrimination and to envisage envisage a future where love knows no boundaries. So this lecture is about LGBTQ plus rights in the Caribbean Commonwealth Caribbean. I'm going to explore the anti-gay laws that the Commonwealth Caribbean inherited from the UK Letters embark on our journey in October, 2012. In the grand rooms of the British House of Lords, there was a debate Entitled the treatment of homosexual men and women in the developing World. During that debate, British parliamentarians condemned Britain's responsibility for laws' criminalizing homosexuality in its former colonies. Quote, we must remember where the laws criminalizing homosexuals in many countries came from. They came from Britain, which alone amounted the European empires of the 19th century, possessed a criminal code under which homosexuals face severe penalties just for expressing their love and physical desire for one another. In India in the nine 1820s, Thomas McCauley, later the greatest of all the wig historians devised a legal system which incorporated Britain's then firm and unbending intolerance of homosexuality. The Indian penal code became the model for the legal systems of Britain's colonies in most of Africa and Asia. End quote. I suppose the obvious question is how did this happen and more significantly, what is the state of play today? Some history, I start this story by talking about the history of persecution of LGBT people in England and Wales. That is because the form British colonies of the Caribbean received the the English common law, and most of their statutes have historically been modeled on English statutes or on statutes from other British colonies. Although the history somewhat different in Scotland, and I won't be going into Scot's Law for the purposes of this lecture, because it's generally English, not Scot's law that the UK exported to its colonies abroad. The first English statute criminalized in sexual activity between men was the Buggery Act in 1533. Before that, it had been within the jurisdiction of the ecclesiastical courts as part of Henry VI Eight's policy on reducing the role of the ecclesiastical courts and expanding Royal Authority Parliament passed the 1533 Act, which made buggery a capital offense to be tried in this, in secular courts, originally time limited, the 1533 act was made permanent in 1540, repealed in 1547, repealed with a more limited statute in 1548, then repealed again in 1553 in the reign of Mary, the first with jurisdiction being restored to the ecclesiastical courts. Finally, in 1562 in the reign of Elizabeth, the first parliament revived the 1533 Act and made it permanent there it remained for the next 266 years. Now the 1533 act did not define the term buggery. However, it was generally understood to include anal sex, not just between two men, but also between a man and a woman. Get this, no distinction was made between consensual or non-consensual sex. The crime of buggery also included sex between a person and an animal. The term sodomy was also used. Convictions under the 1533 act were rare at first. According to Jerome Gross Claude quote, by 1641, only three people had been convicted of buggery, Lord wa Walter Hungerford in 1540, Melvin or Mervin Touche, the second Earl of Castle Haven. In 1631 and nine years later, the Church of Island Bishop of Waterford and Lismore John Atherton Gross Claude highlights that these three prosecutions were political used as a means to further discredit men. It was deemed urgent to suppress by any means possible for religious and or political reasons. However, things changed over time. Gross Claude notes that there were increased repression of sodomy from the late 17th century onwards. In part driven by the societies of reformation of manners, religious societies which prosecuted blasphemers, prostitutes, pornographers, and buggers. These societies conducted raids on Molly houses. For context, Mary uh, McKee explains Molly was a slur for use, for being effeminate for homosexual men, and the term Molly house was adopted to describe clubs, taverns, inns, or coffee houses where they met up in secret. She also warns that we must tread lightly when assigned in 21st century terms to the 18th century culture. But notes that the descriptions we do find of the mollies and the activities which transpired at Molly houses does hint at a cross dressing or drag culture with some suggestion of trans identities as to the response of the courts. Gross Claude says, quote, the judicial repression, however, was quite lenient when one bears in mind that sodomy was a capital offense and judges usually sentenced to a four small fine and a few hours in in the pilly for attempted sodomy. Since the actual offense was very difficult to prove, although the pilly was the lightest penalty, a judge could impose such a sentence, could have grave consequences for the defendant. In addition to the public humiliation of being thus exposed. Mobs were not infrequently known to pelt pillared offenders with eggs and even stones In 1781. In Hill's case, the English judges decided by majority that it was necessary to prove the actual mission of seed to establish that car knowledge had taken place. Hill's case involved rape of a woman, but the same principles applied to buggery. This obviously made prosecutions for buggery as opposed to attempted buggery difficult. This was reversed by section 15 of the offenses against a person's Act 1828, which provided that proof of actually mission of seed was not required and that penetration was sufficient. Not all sexual activity between men came within the definition of buggery in crown against Jacobs. In 1817, the crown of courts cases reserved, held that man who had orally raped a 7-year-old boy was not guilty of buggery. This case illustrates powerfully that buggery, the buggery law was not concerned with protecting children or adults from sexual assault. Criminalization turned on the nature of the sex act not on whether it was consensual. Meanwhile, England exported the criminalization of gay intimacy and sex to its colonies abroad. The Indian penal code, which codified the criminal laws of India under the British RA, was drafted by Thomas Bain Bain McCauley. He completed the work in 1837, but it did not come into force until 1860. Instead, using the term buggery, McCauley chose to use a new language. His original draft would've criminalized touch in a person intended to gratify unnatural lust. His original draft also distinguished between consensual and non-Consensual unnatural offenses both were to be criminalized, but the latter were to be punished more severely. However, the final version that came into force in 1860 differed considerably from McCauley's draft section 377 of the final code provided that quote, whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment for life or with imprisonment for a term which may extend to 10 years and shall be liable to a fine As human rights watch highlights. This version went back to the outlines of the old standards of buggery, replacing the reference to touching with the criteria of penetration. There was still plenty of ambiguities, including the question of what had to be penetrated and by what. On the other hand, the attempt to organize the offense around the axis of consent stroke, non-consent was dropped. In principle, stipulating that the act had to be voluntary meant that the victim of forcible car knowledge, knowledge, or intercourse could not be criminalized. But the other actor received the same punishment and was guilty of the same offense. Whether the act was forcible or not, section 377 was exported to many British colonies back in England. The offenses against a person Act 1861 abolished the death penalty for buggery. Instead, a maximum penalty became penal servitude for life. However, major change to England's anti-gay laws came with the criminal amendment Act 1885. This act mainly concerned with protecting young girls by raising the age of consent for heterosexual sex. However, liberal MP Henry Laber tabled an amendment to this act, the Laber amendment, which criminalized gr acts of gross indecency between men. This was a much broader, albeit less serious crime and buggery, any kind of sexual activity between men consensual or not, was now potentially punishable. The most famous person prosecuted under Labu share's amendment was of course Oscar Wilde, who was convicted of this offense in 1895. So by the end of the 19th century, any kind of sex act between men was potentially a criminal offense, regardless of their ages, whether it was committed in public or private, and whether or not it was consensual. The Sexual Offenses Act 1956 reenacted the C criminalization of buggering and gross indecency between men. However, in August, 1954, the department committee on homosexual offenses and prostitution had been appointed, known as the Wolfing Dun committee after its chair. Part of the committee's terms of res reference was to consider the law and practice relating to homosexual offenses and the treatment of persons convicted of such offenses by the court. When the committee reported in September, 1957, it recommended that homosexual acts between consent and adults in private should be decriminalized. It took another decade before the committee's recommendations were implemented. Ultimately, consensual gay sex in private between men over 21 was decriminalized by the sexual offenses Act 1967 by a private member's bill introduced by labor back bencher Leah Abey. So what about sex between women? There was never a specific criminal offense of Le lesbianism as such, but such offense was very nearly introduced. In 1921, the House of Commons passed an amendment to the criminal law bill, which would've criminalized any act of gross indecency between female persons. The clause was removed, moved from the bill by the House of Lords. Why you may wonder, well, the debate illustrates the extraordinarily homophobic attitudes of the British elite at the time. One Earl apologized for raising the discussion upon what must be to all of us, a most disgusting and polluting subject, and argue that the clause would increase the opportunities for blackmail, that it would practically be impossible to obtain evidence, and that the more you advertise vice by prohibiting it, the more you will increase it. The Earl of Disor similarly argued that the results of a prosecution would be appalling in that it would be made public to thousands of people that there was this offense and that there would be such horror. He added, how many people does one suppose are really so vile, so unbalanced, so neurotic, so decant as to do this? You may well say that a number of them, but it would at most be an extremely small minority. Are you going to tell the whole world that there is such an offense to bring it to the notice of women who've never heard of it, never thought of it, never dreamed of it? The Lord Chancellor asserted. I would be bold enough to say that of every thousand women taken as a whole, 19 900, 999 have never even heard a whisper of these practices. Lesbianism was not specifically criminalized seemingly because the establishment feared that criminalizing it would raise awareness of its existence. However, this does not mean that lesbians were free to of, of legal persecution. Radcliffe's Hall, groundbreaking lesbian novel. The well of Loneliness about female ambulance drivers in the First World War resulted in the obscenity trial in November, 1928. The chief magistrate held the book to be so obscene and ordered it be destroyed. It was not published for the next 20 years. I mentioned this because it's important not to assume that lesbians had it easier than gay men. Their experiences were different, but they too were persecuted. Uh, finally, before we come onto the Caribbean, I just want to look at the persecution faced by trans people. It's important to look at the historical treatment of trans people. The historian Zoe. Um, Platon has uncovered the story of, um, Owen Forbes, a trans man born, born to a aristocratic family, Platon whose findings are summarized by, uh, Patrick, um, Strudwick In an article for the eye. Up until the 1960s, trans people who had had gender confirmation surgery were permitted to change their birth certificates. Ewan Forbes was one man to do so. The problem came in 1965 and Forbes's older brother died, and Forbes inherited a hereditary bar, which could only be passed down to the male lying. A cousin challenged this succession based on the facts that Forbes was not male. In 1968 in secret proceedings, Forbes won the case and was declared the rightful holder of the, and could become the barren. But Platon states that this caused a constitutional crisis. ASIC writes quote, the effect on trans people had already been dramatic. In 1970 April, Ashley, who had become the fir first well-known trans woman in Britain after being outed by tabloid was seven years into her marriage to the as Astora or Arthur Cor Corbett, but it was failing. Rather than divorce her and give her money, Corbett dis attempted to have the marriage old as certain that she was male. The judge sided with the aristocrat and swore the lawyers to secrecy about the Forbes trial. During the Ashley Case, the judge created a sex test, which authenticates her, says Platon Ashley was subjected to the most invasive genital examinations imaginable twice be because after the expert clinicians concluded she had a perfectly use usual vagina, the judge demanded, look again, That judgment is Corbett against Corbett 1971. And that stood as the lead in authority on the mean of sex in English law for more than three decades. Despite it, despite its transphobic nature, Mr. Justice Amrod held that la marriage of Corbett and Ashley was void. In Sir Holden, he sought to define person sex in the eyes of law and held that the law should adopt three tests, chromosomal factors, um, al factors and gen, um, genital, uh, uh, factors. Accordingly, a trans person could not change their sex, uh, by taking hormones or have gender reassignment surgery. This effectively didn't denied trans people any legal recognition at all. Three decades later when attitudes had changed somewhat, the matter came before the European Court on human rights. In the case of Godwin against the United Kingdom, the applicant trans woman challenged the failure of the UK law to allow her to change agenda on her birth certificate to be recognized as a woman. This had numerous impacts on her, which were not limited to marriage. She was treated as a man for the purposes of social security, employment and pensions. This meant that her state pension age was 65 rather than 60. That just, that didn't just put her in a less advantageous position financially, but also risked out in her to her employer. She was also sexually harassed at work and not being accorded adequate legal protection. Strasbourg held that the lack of legal recognition of her gender constituted the breach of her rights. Under Article eight of the convention, the Right to Private and Family Life and Article 12, the Right to Marry and Found a Family shortly afterwards in Bellinger against Bellinger, the House of Lords decided that Section 11 of the Match Money Causes Act. 1973, which made a marriage void of parties were not respectively, male and female, was incompatible with articles, uh, eight and 12, the rights of trans people. A declaration of incompatibility was made a declaration under the Human Rights Act, uh, which does not change the law, but instead serves as a signal to parliament that it needs to change the law. To bring it in line with the convention. Parliament did change the law. The Gender Recognition Act in 2004 allowed for trans people to obtain legal recognition of the change of their gender for the first time. However, the two 2004 Act is rightly viewed as unsatisfactory by most trans people. Trans people can't change their legal gender. As of right, it's subject to a gender recognition panel, which decides whether or not to permit the change. And, uh, medical diagnosis of gender dysphoria is required. It's intrusive. The situation is medicalized cumbersome, and it's a bureaucratic process. Let's come on to how these laws have been transferred to the Caribbean. Commonwealth Caribbean inherited the UK's anti-gay laws. The exact wording of statutes varies between jurisdictions. A 2018 report by Human Rights Watch gives a helpful overview of the laws in the Eastern Caribbean at that time in the southern countries. Covered in this report, there is no consistent definition of buggery. All the penalties imposed Antigua and Bar Budda and Dominica define buggery as anal intercourse by male person with a male person or by a male person with a female person. Most countries, including Barbados, St. Lucia, St. Vincent, and the Grenadines leave it undefined, specifying only only the prison term to be imposed. St Kit Nevus criminalizes sodomy and bestiality and defines the term by reference to the, a vulnerable, uh, crime of buggery committed either by with mankind or with any animal. Grenada has the most open-ended provision, criminalizing unnatural connections, which is undefined and has been interpreted in in the past case law to con include consensual anal intercourse between same-sex persons. Barbados has the most severe punishment life imprisonment. Dominica grants the courts of power to order that the convicted person be admitted to a psychiatric hospital for treatment. And St. Kitt Nevis allows the courts to add hard labor to the final judicial decision. As human rights watch rightly highlights. These laws do not distinguish between consensual or non-consensual sex, contrary to what is sometimes asserted by Caribbean politicians. They're not about protecting people from rape. Some people define these laws by saying that consensual gay sex is really prosecuted in the Caribbean, but that is not the point. As human rights watch says of Jamaica's laws against buggery and gross indecency quote, the laws have a real and negative impact. Criminalized in sexual intimacy between gay between men offers legal sanctions to discrimination against sexual and gender minorities. And in a context of widespread homophobia gives social sanctioned prejudice and helps to create a context in which hostility and violence is directed against LGBT people. The laws have been used by the police to exhort extort money from adults engaged in consensual homosexual sex by public television sta stations to justify refusal of, to air public service announcements by making positive statements about LG BT persons and by landlords to justify refusal to rent apartments. Though those arrested are really, if other prosecuted gay men are outed through arrest risk violence and other abuse by community members, nor is it a gay men who are targets human rights. Watch notes again in relation to Jamaica quote, while the law does not directly reference transgender people, trans transgender women and homosexuals are often conflated gender non-conforming Jamaicans, especially transgender women and gender non-conforming gay men who are publicly visible are the most likely to suffer violence and discrimination. Same-sex relationships between women are not criminalized in Jamaica, however, lesbians and bisexual women are stigmatized and subjected to violence, including sexual violence. From a legal perspective, there has been some real progress In the last few years in a number of jurisdictions, the courts have struck down the criminalization of same sex activities as unconstitutional. The Supreme Court ize held that the ize laws against unnatural carnal knowledge was unconstitutional in the case of Caleb or Rose Co. Against the Attorney General, the high court in Trinidad and Tobago struck down laws against buggery and Sir indecency in the case of Jason Jones against the Attorney General, the high court of Barbados followed suit and Rene Hold and McLean Ramirez against the Attorney General. The Eastern Caribbean High Court struck down the criminalization of buggery and attempted buggery in sent kits. In the case of Jamal Jeffers and the criminalization of buggery in serious indecency in anti and barbuda in the or David Case, anti-gay laws in the Commonwealth Caribbean are falling like dominoes. Another judgment on LGBT rights, which I've mentioned in a previous lecture, is McEwen against the Attorney General. That is a decision of the Caribbean Court of Justice in its capacity as the highest court of Guyana. I talked in the previous lecture about how some, but not all Caribbean jurisdictions have replaced the Privy Council with the Caribbean Court of Justice as the highest court. Now, the McEwen case concerns a group of trans people who arrested and prosecuted under an archaic colonial law for wherein female attire in the public place for an improper purpose. Extraordinarily the magistrate who sentenced them told 'em that they should go to church and to give their lives to Jesus Christ. They brought a constitutional challenge, ultimately the Caribbean Court of Justice that held that the statute was unconstitutional. In doing so, the court considered the history of the law against cross-dressing. The prohibition against cross-dressing for an improper person was enacted in Guyana in 1893 to towards the end of the 19th century. The law was a part of a suite of laws enacted against vagrancy. These laws were passed in the post emancipation period, both in the Caribbean and in the United States. To cope with the paradigm shift in the mode of production from slavery to free labor. The laws were designed to regulate and exercise control of the both ex-slave population. And in places like Guyana, the newly imported indented laborers, the object was to curel mobility to keep close to the plantations. Those whose labor was essential for continued exploitation. Legal coercion became indispensable to maintain an already source of cheap labor in the emerging free labor system. The laws which also regulated gender and religion were rigorously enforced by the magistrates and police. You see, this is hugely important. History highlights that the criminalization of LGBT people in Britain's car, uh, Caribbean colonies has its roots in a system of colonial social control designed to serve the interest of our former colonial masters. Many Caribbean politicians today suggest that LGBT rights are contrary to Caribbean values or even a colonial imp, uh, or even a colonial imposition, but actually Homophobic and transphobic laws which are colonial in positions. The court in McEwen went on to hold that the saving clause, and if you dunno what saving clause is, do look back on my lecture on the Privy Council of the Constitutional of Guyana did not save the colonial statute from being unconstitutional. I've already discussed this at length in previous lectures in the context of the death penalty, so I won't repeat that discussion here. But in brief, saving clauses are found in many Commonwealth Caribbean's constitutions. There you vary widely in their scope, but to a greater or lesser extent, they immunize from constitutional challenge laws, which existed before the commencement of the Constitution. And as I explained in the previous lecture, the Caribbean Court of Justice has in recent years adopted a more limited interpretation of saving clauses than the the Privy Council. So we can see the winds of change are blowing in the Caribbean and the laws which criminalize LGBT people are being struck down as unconstitutional. However, we are a long way from achieving equality. Just because LGBT people are no longer criminalized in some jurisdictions does not mean that they're treated equally. Same sex marriage still remains illegal in the Commonwealth Caribbean and legal protections against discrimination in employment and service provision or lacking. Nor has any commonwealth Caribbean country adopted laws allowing trans people to change their legal gender. It's likely that were the matter to come before them, the Commonwealth Caribbean Court, they would still follow the corbit judgment. And while the laws can change, changing culture takes a lot longer. Human rights watch have powerfully written that the about the experience of societal discrimination faced by LGBT people in the Eastern Caribbean. The report states, quote, in St Kits, few LGBT people come out of the closet, fearing the entire island will know gay people feel isolated in some fear, harassment and violence beaten glass bottles thrown at them. Most of the men human rights watch spoke with on St Kits had seriously contemplated suicide. They interviewed Rosa, a lesbian activist in St Kits, and as the report states, people in Rosa's community on St. Kits didn't believe she's really a lesbian. They thought that because she was raped as a teenager, her fear of men made her gay life and sink kits can be awful for gay men. They're frequently harassed, threatened, attacked, tossed out of their homes and abandoned by their family for being gay. One time Rosa walked down the street with a gay man and a group of guys were yelling insults at her friend. Life is not easy for transgender women either. Another friend of Rosa who'd lived openly as a trans woman in the United States, but was deported back to St. Kit's, has had to dial it back. She said, end of quote, the report also interviewed Barry, a closet closeted gay man serving in the Antiguan Police Force. Quote, most day, Barry hears his fellow officers making homophobic slurs. They say that gaze should be locked up, that they are nasty, that they don't know how they could ki how a man could kiss a man. One supervisor called being gay an abomination. He also knows that some officers don't take crimes against LGBT people. Seriously, like the time a transgender friend of Barry was stabbed and badly wounded, the police refused to help her. Instead behind her back, Barry heard her call, call her an anti-man, a derogatory term and disgusting. Another friend, also a trans woman, was beaten so badly by policeman that she practically lost her sight in her right eye. He was aware that if people knew he was gay, he could be attacked. He also feared eviction from his rented home, and he was afraid of what his colleagues would think. Think of what they suspected, even though they show me respect in my presence when my back is turned, they talk. He said, when Caribbean societies have changed and are changing and they remain predominantly Christian, socially conservative, those of us who have platforms of influence need to use what power we have to change the Caribbean culture for the better. For LGBT rights, we need to recognize that homophobia and transphobia Caribbean are hangover from our colonial past. Uh, I want to just touch upon two things as I come close to the end of my time. Despite the UK's government's vaunted c commitment to LGBT rights, same-sex marriages, note this, it's not even legal, it all the UK's overseas territories in Bermuda and Cayman Islands, they have civil partnerships, but not same sex marriage. Anguilla and the British Virgin Islands, monstra Turks and CCOs have no provisions for the recognition of same sex relationships. There have been two unsuccessful constitutional challenges on the issue. Chantelle Day against the government of the Cayman Islands, the Privy Council held that the lack of same sex marriage in the Caymans did not breach the Cayman Islands constitution. The court of Appeal in the same case declared that the absence of civil partnerships for same-sex couples was unconstitutional, which was not appealed. And in response, the claim and parliament passed the civil partnership law, which allowed for civil partnerships. However, the appellants appealed to the Privy Council on the issue of marriage and lost. Similarly in the Attorney General against, uh, of Bermuda against Roderick Ferguson, the Domestic Partnership Act of 2018. And Bermuda, which legalizes domestic partnerships the same sex couples, but denied them, the right to marry was upheld as constitutional. I I can see how that the UK government might understandably be reluctant to override the wishes of the local parliaments for their overseas territories. Doing so might well be regarded as a con colonial imposition, But the UK government has no com compunction to about overriding local legislature when it comes to issues as imp when, when, when they thinks the issue is important. So for instance, in 2022, the UK government vetoed the bill passed by Bermuda that would've legalized recreational cannabis. This shows the priorities of the current government, its willingness to impose its will on overseas territories in its continued failed war on drugs, but not to extend the rights of same sex couples. So let me conclude this lecture. It is evident that a significant transformation is imperative. The Commonwealth, um, Caribbean jurisdictions persisting with arcade laws criminalizing buggery, gross in decency or similar offenses, I think without reservation, should undertake the repeal. Courts in their role as guardians of justice should persist in striking down down these laws as unconstitutional, recognizing their roots and the legacy of social control imposed by our former colonial masters. Crafted not for the benefit of Caribbean people, but to serve imperial interests while advocating for the dismantling of these legal barriers is essential to broaden our vision, uh, for the future of LGBT rights in the Caribbean campaigning for progressive change, including the introduction of same-sex marriages, legal protection against discrimination employment and service provision. The opportunity for trans individuals to change their gender, their legal gender is paramount. These legal amendment meant, I feel, are vital to address systemic inequalities that persist in the shadow of outdated legislation. However, the transformation sort goes beyond the confines of legal frameworks. There's a more arduous journey of cultural change and legislation alone may not be suffice in the eradicating, deeply ingrained prejudices leading to the persecution faced by LGBT individuals today. It requires a collective effort to challenge societal norms, fostering, understanding, empathy, and acceptance. It's a call for action to activists, policy makers, citizens alike, to contribute to that cultural shift where diversity is not only tolerated but celebrated. Changing hearts and minds is going to be an ongoing process and one that necess states open dialogue, education, and commitment to dismantling ingrained biases. Ultimately, our shared aspiration is for LGBT individuals in the Commonwealth Caribbean to genuinely, uh, relish equal rights, rights free from persecution, discrimination, and the shutters of this colonial past. So may this journey towards equality be marked not only with legal reforms, but a profound shift in societal act attitudes. Let me finish with two quotes. Firstly, I want to go back to our anonymous hero at the beginning, the quote that I started with from that, that was from a Guardian article by the way, quote. But today, 25 years later, I'm seeing a change. Social media has helped young gay men and women in the Caribbean to know they are not alone. Amazing advocacy groups are increasingly pop popping up in Barbados, Jamaica Guyana, who are demanding that gay men and women have a voice and a right to be treated equally. There's a pond of role models, is slowly deepening. We see ministers and diplomatic representatives, media spokespeople and doctors, artists and teachers increasingly being less guarded about who they are. We see people finding love. I have seen boys and girls, I've grown up with part of the survival mode, clan, living happily with their partners. I'm getting an increasing number of invitation to weddings. Weddings growing up, we were never even allowed to think of ourselves that such a thing was possible. But two things are consistent. One, to find this love and survival, the vast majority of these brilliant, creative, passionate souls have left the Caribbean. And two, although social media has connected those of us who thought we were unconnected, it is also given the voice to the cowardly and the ignorant read the comment section of this art of any article on the topic of homosexuality in the Caribbean at your own risk. But these people are not on the right side of history. The younger generation is increasingly more accept and able to think for themselves. My hope is that this free thinking will lead them on a path not the to the dreaded tolerance, but to acceptance of equality. For me, I've just celebrated my 12th anniversary of my partner. My parents are my best friends. Having embraced my truth and embraced my partner, I silently work to push for equality at every stage I can. I am no longer in survival mode. Well, not a hundred percent like my home country. I still have a way to go, but I'm on the right route. And finally, love is the only force capable of transform, forming an enemy into a friend in our journey for equality, let love be our guide, breaking down barriers and illuminating the path to acceptance for all. Bayard Rustin. Thank you. Thank you very much, Leslie. Um, I'm able on this machine to gather a variety of questions that have come in from online as well as in the room. And there's some that have very grouped together with a a similar question. So I'll start with one of those, which is that you started with the laws that were imposed from the colonial era, but you haven't actually told us what the attitudes were to LGBT community and people pre the colonial era. Can you expand on that at all? Yeah. In my research on this, it's interesting because, um, there are certain other European colonial countries that had a greater tolerance of, um, gay couples, gay relationships. Um, and indeed some of my research seemed to indicate that prior to, uh, you know, um, the, some of the worst horrors of slavery, certainly certain, um, peoples from Africa had a great deal of tolerance for, um, same sex relationships. And I found that, I found that fascinating, that it very much appeared to be a, um, European, um, imposition on people of color in relation to, you know, the, these, uh, regressive laws. But I didn't research that in a great deal. I concentrated on the laws as, as opposed to, you know, the, the history because this is a meant to be a legal lecture as opposed to a history le lecture. So that, that's as far, uh, as I can take that The, um, rules, the the laws that were imposed by our pre, uh, through the colonial government that we were running at the time. I guess, um, how much of that was mirrored by what churches felt, what religion felt? So we looked out to attitudes in Africa, for example, to LGBT rights, which seemed to be significantly driven by church communities. Yeah. Was there any evidence of that happening at the same time as the colonial imposition from England? Uh, you know, the situation is really nuanced and complicated. I think the question that you have to, so firstly, I I I don't know specifically, but if I was to have an intelligent guess at this, what I would say is there was a, a really strong connection between the church and colonial masters who were landowners because as I touch upon, uh, in, in my talk, a lot of the control was tied to the land. And uh, uh, you know, uh, I suppose it's as far as I can take that. Let's, um, take some questions from the floor. We have one just to your right there. Thank you very much. Hi. Um, it took a very well, um, presented talk and I learned a lot this evening about the legislative background and the historic background in the uk. Um, it took under the sixties for the law to change attitudes. Took many more years to change. A new generation had to grow up and realize, you know, what things were and how things really, you know, how people were in real life rather than pretending to be. What I want to know is the education system took a long time and much a greater period of time to change, to be enlightened, to, to teach, uh, children, to be enlightened about their sexuality. Has that been occurring in the Caribbean or is that, are we still awaiting that change? I would say we are still awaited that change. Um, that there are still, this topic really sparks strong feelings. Not everybody welcomes this discussion. And uh, you know, you just need to look at some, some popular culture, you know, the dance hall music, um, from some of the Caribbean islands where, you know, really homophobic transphobic lyrics which are, um, repeated and tolerated. Um, there there is a strong sense of morality. I question whose morality, but you understand what I mean. And, uh, politicians see this as a popular cause, um, to jump on at, um, you know, when there, when there's an election. So gay rights are very much an unpopular in the minority and the, you know, the, the voices who are calling for these rights are still very much, um, the quieter voices. Does that answer your question? Yes. It's A shame. It is a shame, but things are changing. And what I want to get across is even though there is a degree of populism, um, which is regressive the courts, particularly the, uh, some of the higher courts that there, there have been some great decisions which have been paving the way which, which, which is good, which is really good. So can can I bring you back to another legal point? So you're making a very passionate case for law reform or better interpretation of the laws which exist elsewhere. But are you, how do you shift the dial, presumably if you want to, we still have some control through the Privy Council over some of these setups. So do you push it from here, in which case you are almost recreating a colonial legacy? Or do you have to wait for it to emerge from there with people appealing through what looks like an archaic legal system structure? Well, Well the, the, I do encourage everybody, if you haven't seen my lecture on the Privy Council, I do, I do invite 'cause it, it's on the death penalty, but there is a connection between these rights and, and the death penalty and the sadden clause. The problem with the way that the Privy Council has, has interpreted the, um, the saving clause. This has been re quite restrictive. They, and, and that part partly that has been because, um, many of the Caribbean countries have said, you know, the Privy Council is a, a, a legacy from the former colonial past. And that has led to, this is my interpretation, it's not necessarily right, but it's my opinion that that has led to the Privy Council taken a more stand back position and, and allow and allowing the sa clauses not striking down savings clauses. Whereas the Caribbean Court of Justice, which is, which some of the Caribbean islands have signed up to, so they no longer use the Privy councilors there. Highest appeal court has been much more radical in, in striking down many of these cases and striking down saving clauses. And remember, saving Clause says that if this was the law, if if something was the law before the Constitution, then it's very difficult. Unless the Constitution specifically says it's to be struck down. It's very difficult to say that that law, the pre constitutional law should not be followed. And the, um, Caribbean Court of Appeal has been much more radical in striking down these saving clauses, whereas the Privy Council has been more stand back. We don't want to be looked seen as a colonial court imposing our will, even though, you know, you have the Supreme Court, same judges with different hats on sitting in the Privy Council come to contrary decisions for, you know, um, laws in the U United Kingdom and laws in the, um, Commonwealth. Hello. Thank you very much. That was super interesting. And um, I loved how you eloquently described the impact on the laws of everybody in the Caribbean. I do have a question, but the first thing I'm gonna say is Lexi and I, here we are filmmakers and we are making a feature documentary on this very topic. So we'd love your support and we're also looking for funding. So if you've got really deep pockets, please come and speak to us afterwards, but also just come and chat to us anyway. So my question is what are the ways in which we can all other than we can support the cause globally other than through helping our film? Great, Thank you. Absolutely. Fantastic question. I, I think, um, one of the main things that, um, those who wish to help activists is to join up with local groups. What you, the one thing you don't want to do, one thing that's really difficult, um, and I think is damaging to the cause, and I was trying to touch upon this right at the very beginning of the talk, and that is to come as if we know it all, we are right, we are, we are imposing, we're right, you are wrong. Um, get out of the way we're talking progress. You dunno what you're talking about because that smacks of a new colonialism. Am I making sense? So it is much better. I I in fact, when I was doing the research for this lecture, I came across an article whereby, uh, this very issue was discussed. How can we help? And local activists were saying, you know, we understand the dynamics, we understand our politicians, we understand how our religious leaders think. And we were taken an approach and then, and we were bringing our litigation in a particular way. And outside groups came in as friends of the court, you know, a MICUs took over, didn't listen to our voices and messed it up and put our calls back years because there is a sensitivity there. There really is a sensitivity about the global North knowing everything from the global south being ignorant. And we have to be cognizant of that. And I, and in a way I see that because I practice here and I practice there, uh, and unfortunately because <laugh>, because I was born in this country, I speak like this. So when I'm there, the, as soon as I open my mouth, there's a degree of suspicion. I might look like the people in the Caribbean, but they can tell immediately I'm an outsider. There's a, you know, you've got to prove yourself. I hope that makes sense, what I'm trying to say. Thank you. We have to give you, get you to give this lecture in Patua next time.<laugh>. Um, ladies and gentlemen, please join me in thanking those, Thomas for a wonderful lecture.