Taiwan High Court rules Gay Marriage Ban Unconstitutional

veteran gay rights advocate Chi Chia-wei (祁家威) in 2015 after his registration of marriage with his male partner was rejected by the household registration office in Wanhua District in Taipei in 2013 and subsequent court appeals failed.

As more good news continue to come in the gay marriage front many world wide are celebrating for our Asian friends in Taiwan. It was only a short time ago Bermudan LGBT persons won the right too same sex marriage after their constitutional challenge. Please see my previous post: VICTORY - SAME SEX MARRIAGE is now legal in Bermuda.

According to the CNN in part 

The panel of judges has given the island's parliament, known as the Legislative Yuan, two years to amend or enact new laws, which could potentially make Taiwan the first place in Asia to allow same-sex marriage.

The island has a large gay community and its annual gay pride parade is the biggest in Asia but the issue of marriage equality has divided Taiwanese society, with thousands turning out in recent months to protest for and against marriage equality.

"This explanation is a step forward in the history of Taiwan's same-sex marriage," said Yu Mei-nu, a Taiwanese legislator.

Yu said the court's explanation means that even if lawmakers do not pass legislation allowing same-sex marriage in the next two years, gay couples will still be able to marry by this time in 2019.

"I hope that the legislators will have the moral courage to pass same-sex marriage into law, however it is hard to predict how long it will take, at this moment," she said. "The opposition toward gay marriage in Taiwan won't just gladly accept it and give up the debate, so the debate will continue."

Draft legislation is already making its way through Taiwan's Parliament but it has stalled.

"We feel that this is a huge success for the LGBT and marriage equality movement in Taiwan," said Wayne Lin, an activist who runs an LGBT hotline on the island.

"We want to amend the Civil Code so same-sex couples can get married... our target is to complete this whole process within this year."

Tsai Ing-wen, Taiwan's first female president, expressed support for gay marriage before her election in 2016.

"In the face of love, everyone is equal," she said in a Facebook video during 2015's gay pride parade.

"I support marriage equality. Every person should be able to look for love freely, and freely seek their own happiness."

The case

The decision came in response to two requests for a Constitutional Court ruling on article 972 of Taiwan's civil code, which states that marriage is between a man and a woman.

One of the requests was filed in 2015 by Chi Chia-wei, a veteran gay rights activist who has spent more than half his life fighting for marriage equality in Taiwan, according to the island's official Central News Agency (CNA).

The other request was filed by the Taipei city government the same year after three same-sex couples lodged an administrative lawsuit against the government when their marriage registrations were rejected, CNA reported.

Elsewhere in Asia, the LGBT community has been facing increased persecution. South Korea has been cracking down on gay armed service members, while in Indonesia gay men have been facing more restrictions, with a recent raid on a gay sauna party and two men being caned for having homosexual sex in the conservative province of Aceh.
Japan does not recognize same-sex marriage, although a handful of cities and wards have legalized same-sex partnerships. However, LGBT people are not protected from discrimination under Japanese law.

Homosexuality is not illegal in China and the Communist government removed it from the official list of mental disorders 16 years ago, but activists and experts say that prejudice and discrimination persist.

Last year, a court in central China ruled against a gay couple in the country's first same-sex marriage lawsuit, dealing a blow to a nascent but increasingly visible campaign for LGBT equality.

No Asian nations are on the 23-strong list of countries that have legalized same-sex marriage, according to Pew Research, although it was permitted in New Zealand in 2013.

Meanwhile antigay activists are up in arms, they cry foul cry foul over Constitutional Court ruling, Pastor Deborah Hsing said the Taipei City government had crossed the line on family values when it filed a request for a constitutional interpretation on the issue without holding any public hearings beforehand.

In similar vein, Andrew Chang (張守一), secretary-general of the Family Guardian Coalition of Taiwan Religions, said Wednesday's ruling was nothing but a farce and a blot on Taiwan's judicial history.

Chang said his group will not rule out the possibility of seeking another constitutional interpretation on same-sex marriage.

Shih Chun-yu (施俊宇), a Fu Jen Catholic University student and head of the Protection of Family Value Students Organization, said the justices had abused their rights by tampering with the definition of marriage.

The ruling is a huge setback for democracy, Shih said, likening it to the 911 terrorist attack on the World Trade Center in New York in 2001. 

Blah Blah Blah, get over it the court has spoken and CONGRATULATIONS to our friends in Taiwan

Peace & tolerance

H

Buggery accused pastor relieved of pastoral duties

A 27 year old pastor of the New Testament Church of God in Bonkers Hill Trelawny has been relieved of duties after he was charged with sexual assault & buggery of a minor being a fifteen year old boy. Percy Smith has been slapped with buggery, gross indecency and grievous bodily harm, the acts allegedly occurred between 2016 to earlier this year. In a press release yesterday the Administrative Bishop of the church Reverend Wellesley Blair confirmed that Smith was removed from conducting anymore pastoral duties, he said the church disassociates itself from immoral, unlawful or reprehensible acts unbecoming of a pastor; he said the church is willing to cooperate with the investigators in whatever appropriate or is necessary and that the church is also expressing sympathy to the family affected, the accused pastor is to face the court sometime this week.

I hope that the youngster is being properly counselled and engaged towards some recovery, also I hope the court systems are taking into account the sensitivities involved and that the matter is tried ‘in camera’ (the accused and the victim) so as to avoid any unneeded exposure. The repeated mention dates and or preliminary hearings can be daunting for the victims in particular, to be asked to go to court to face the evil one or made to relive the matter. I can only imagine the state of affairs in that household and by extension the rest of the church community and the condemnation on their part of the accused pastor seeing it is same gender sex matter, I raise that because of the justification of an ongoing matter of the Moravian pastor who was accused of assault of a fifteen year old girl. Many commentated openly that nothing was wrong with ‘a little sex’ and after all she is a girl and the accused pastor in that matter should be forgiven; the efforts by some who ought to know better to seemingly protect that pastor only threw salt in the wound and has left me wondering what other dark secrets ad out there that church boards are aware of but cover them up so as not to ruffle feathers. Apparently hetero-paedophile appearing abuse cases can or should be allowed some leeway because it the accepted straight sex but mention a male and all hell break loose. Comments made by overly fanatically sympathetic congregants and others that the Moravian pastor blasting those who accused them shows up the kinds of control some have over those who are easily led.

Something seems off when it comes to the Moravian church in recent times as such clerical abuse is mostly linked to the Catholic Church but in this year alone we have seen Pentecostals, now this New Testament Church and even non traditional denominations. Priests continue to clothe themselves in piety but use their power and privilege over the weak. Simply put abuse is abuse no matter the gender of the victim or the perpetrator and a pastor is the last person one would expect to hear being accused of such issues, are pastors joining or hiding in the church just to gain access to the weak, the very weak Christ’s teachings encouraged that should be reached?

This is not the best time for awful news such as this given it is child’s month and the disturbing set of inappropriateness of pastors or persons purporting to be men of the cloth who abuse the weak psychologically and otherwise. On one hand it is good that such hidden actions are being exposed but on the other it sends a wrong message to persons in terms of the trust of the church and has indirect implications towards the national discourse or shouting match on the buggery law amendment or repeal depending on which side one is on. Some members of the public have been up in arms since the story broke suggesting that no change whatsoever must come to the law; it is cases like this one that makes it all the more relevant to amend the law as in the amendment it should take into account (non) consent for adults while also making it very clear the protection of children under the age of consent which is 16 years old. One also hopes that if and when there is some amendment that there is no hetero or homosexual buggery demarcation as was done in the UK before the ages of consent were equalized in the 1980s.

There is another ongoing matter for some years now in the St Andrew parish court involving a female victim who was also buggered by a pastor, sadly the creaking court systems and yet to be properly updated ways of doing business still escapes our justice systems overall. That case is being tracked but in the twenty first century why are some judges still taking notes by hand despite smartphones with voice recording capabilities, laptops with powerful microphone ranges and the promised video cameras in court to track hearings so judges can go back and review the materials. Only a few courthouses have been updated to meet the relevant changes and make them fully operational. Another challenge I have is the business of follow-up of older cases and their outcomes in terms of the victims, the system is so overwhelmed that it is next to impossible to keep up.

The sexual offences bill review is on and many like me are not so optimistic on any positive movements similar to reviews passed but hope remains while company is true.

Peace & tolerance

H

VICTORY - SAME SEX MARRIAGE is now legal in Bermuda.

Yes indeed, our friends in Bermuda have done it. Lord knows this is go news given the closing walls via Trump et al elsewhere a nice victory in law, fair square. 

A gay couple have won their legal challenge against the Registrar-General’s decision to reject their application to marry in Bermuda.

the loving couple

Winston Godwin and his Canadian fiancé, Greg DeRoche, took their case to the Supreme Court, arguing that the Human Rights Act took primacy in Bermuda and protected their right to marry.  The Royal Gazette also featured the development.

This morning, Puisne Judge Charles Etta-Simmons delivered her ruling that stated: “On the facts, the applicants were discriminated against on the basis of their sexual orientation when the Registrar refused to process their notice of intended marriage.”

The judgment continues: “The applicants are entitled to an Order of Mandamus compelling the Registrar to act in accordance with the requirements of the Marriage Act and a declaration that same-sex couples are entitled to be married under the Marriage Act.”

Mr Godwin and Mr DeRoche, represented by lawyer Mark Pettingill, sought an order from the Supreme Court to compel the Registrar to post their marriage banns, in accordance with the Marriage Act. They also want a declaration that same-sex couples are entitled to be married under that law.

When the civil case was heard over three days in January and February, Mr Pettingill urged the court to write the final chapter in the protection of gay rights in Bermuda.

He said the couple’s case encapsulates “the right to happiness, the right of all people to seek love and happiness”. Mr Pettingill added: “The applicants say that religious arguments bear no relevance on civil contractual marriage. This is a matter of statutory interpretation.

“It is time for the courts fully armed with the legal protection of the Human Rights Act to write the final chapter in the protection of the rights of gay people of secular orientation and all the rights that everyone enjoys to be the same.”

But the Government’s lawyer, Deputy Solicitor-General Shakira Dill-Francois, told the court that the Registrar-General could not post marriage banns for gay couples because such unions are null and void under Bermuda’s existing laws

She said that under section 33 of the Marriage Act 1944, it was an offence for the Registrar to authorise a marriage, knowing it was void.

She added the Matrimonial Causes Act 1974, in section 15, clearly set out the grounds on which a marriage was void, including if “the parties are not respectively male and female”.

Adding that the two pieces of legislation had to be read and understood together, Ms Dill-Francois asked: “Why would the Registrar proceed to register a marriage that is, in fact, void?”

Preserve Marriage, which has campaigned to maintain marriage as between a man and a woman, and the Human Rights Commission were allowed to join the proceedings as “interveners”.

Preserve Marriage was represented by lawyer Delroy Duncan, who argued that changing the law on same-sex marriage could open the door for “multiple-partner marriages” on the island.

“We have to ask ourselves whether this legislation is permissive of such marriages or whether or not what you are being asked to do could open the door to multiple-partner marriages,” he said.

Mr Duncan maintained that Parliament must decide on the issue of same-sex marriage “through the ballot box”.

Reacting this morning, Mr Godwin told The Royal Gazette: “I feel a huge sense of relief. It’s been a long road to get to this stage for me and Greg, and for Mark and also for Bermuda.

“It has been a long time coming. This ruling, although it was in our favour ... there is still so much more to do in Bermuda.

“This is a big step in the right direction. I cannot thank my legal team and my supporters enough.”

Lawyer Rod Attride-Stirling, who acted for the Human Rights Commission during the case, said in a prepared statement: “It is a matter of great shame that the legislature did not act in this matter to put the issue beyond doubt.

“It is also a matter of great shame that the Attorney-General fought the case in the manner in which it was fought, ignoring the Bermudian cases on the proper interpretation of the human rights act. This should not have been so.

“I am glad to see that the Bermuda court has followed the courts, first of South Africa, which decided this issue in 2005, and then the United States which followed suit in 2015.

“The message of hate and exclusion has been rejected. Human rights means human rights for all humans. Equally. No one is excluded.

“Gays who want to marry can now do so.

“Bermuda owes a huge debt of gratitude to the two brave young men who brought this action, Winston Godwin and Greg DeRoche. They will always be remembered as heroes of the human rights movement.”

meanwhile more from .....

The Rainbow Alliance has declared today’s landmark gay marriage ruling a victory for all same-gender loving people in Bermuda.

Saluting Winston Godwin and Greg DeRoche for their courage in taking on the Bermuda Government at the risk of being ostracised by the community, the Alliance issued a statement saying “love always wins”.

The organisation also released a comment from Mr Godwin, a Bermudian, and his Canadian fiancé Mr DeRoche, saying they hope the result gives more people courage to speak up or come out.

Earlier today, Puisne Judge Charles Etta-Simmons had delivered a ruling in favour of the couple, who had challenged the Registrar-General’s decision to reject their application to marry in Bermuda.

The Alliance said it was “overwhelmed with joy at the conclusion of today’s historic ruling”.

It continued: “We applaud the landmark decision by Justice Charles Etta-Simmons. Today, history has been made and love has won.

“This ruling is not only a victory for a brave young couple willing to fight for their love, Winston Godwin and his fiance Greg DeRoche, this ruling is a victory for all same-gender loving people in Bermuda.

“In this decision, the courts have affirmed that the love between two consenting adults is worth protecting with law, regardless of gender.

“This outcome ensures that same-gender couples can enjoy the same legal protections as heterosexual spouses do. This outcome preserves the notion that love is the greatest force of all.”

It quoted Mr Godwin and Mr DeRoche as saying: “We appreciate all the positive affirmations and support. This has been a long process, but well worth the fight.

“Hopefully this brings forward hope and courage for those who were/are afraid to speak up or come out. This is a moment we are proud of and will never forget.”

The Alliance release continued: “This outcome could not be possible if it were not for the courageous decision of Winston to take on the government of his home and risk being ostracised by his community for the sake of love.

“We applaud Winston and Greg, the legal team that supported this challenge, and the many campaigners that have over the years fought for increased human rights, dignity, and respect of LGBTQ people.

“There is so much more work to be done, but today, we celebrate that love always wins.”

Jamaica's buggery law not among the most severe in the Caribbean region .............

A letter appeared in the Gleaner earlier today on a study conducted by JFLAG on the Buggery Law in the Caribbean making comparisons to other states as to severity. Here is the letter firstly, meanwhile the antigay spin doctors try to twist the narrative that of Jamaica being mislabeled as the most homophobic place on earth. 

The letter:

THE EDITOR, Sir:

Research around the application of Jamaica's buggery law reveals it is not among the most severe in the Caribbean region. The findings, which are contained in a study conducted by J-FLAG titled 'Criminalizing Private Consensual Intimacy II', help to challenge the decades-old belief that Jamaica is the most homophobic place on earth.

The study found that when compared to similar laws in other Commonwealth Caribbean countries, Jamaica is neither the best nor the worst as it relates to the criminalisation of private, consensual same-sex conduct. Six Caribbean countries criminalise both male-to-male and female-to-female consensual sexual activity. They are Antigua & Barbuda, Barbados, Dominica, St Lucia, St Vincent and the Grenadines, and Trinidad & Tobago. In Jamaica, only male-to-male consensual sexual activity is criminalised, in addition to the criminalisation of anal sex regardless of gender.

J-FLAG undertook the study to review statistics on the use of the buggery law in the justice system, explore the treatment of similar laws internationally, and compare the severity of the local buggery law to others in the Commonwealth Caribbean.

Sentences vary across the Caribbean. In Barbados, for example, the offence of buggery can attract a maximum sentence of life in prison, while in Trinidad and Tobago, a maximum sentence of 25 years. This is significantly more severe than the maximum 10 years in Jamaica.

NOT AS HARSH

The fact that Jamaica's punishment for buggery is not as harsh as some Caribbean neighbours does not mean the law must not be amended.

This is by no means an indication that the law does not affect LGBT people across the country. The buggery law continues to be a locally and internationally recognised symbol of state-sanctioned discrimination against LGBT Jamaicans. Reform of this unjust law remains urgent, since the provisions do not align with the fundamental rights to privacy and equality before the law as secured in the Charter of Fundamental Rights and Freedoms.

This is particularly true of Section 80 of the Offences Against the Person Act, which legalises wanton arrests of gay men and trans women. Fixing this and other laws, and creating a welcoming legal and policy environment for LGBT Jamaicans, are steps in the right direction.

DANE LEWIS

GLENROY MURRAY

J-FLAG

ENDS

 the article that got most persons in a bind

How the article was misrepresented is part and parcel of how the already existing homonegative feelings led to the deceptive narrative by ignorant religious fanatics (that make honest church fol look stupid) is why there is hardly any serious movement in changing hearts and minds. The social media firestorm is now sending a narrative that JFLAG et al were lying on Jamaica all along and further justification for no change to the buggery law, repeal or amendment.

JFLAG tried to clarify its agenda though somewhat late as the public and homophobic groups kept using the full repeal arguments instead of the change in position, the J took too long to adjust themselves in my view.

Also see: Is ‘The Most Homophobic Place on Earth’ Turning Around? (2015), Buggery law referendum baiting by JLP in #Javote2016 campaign and J-FLAG now advocating for decriminalisation of same-sex acts

The Star News still couldn't help themselves despite some slight forward thinking in recent years, they headlined the story, when it is the law that is being discussed and not the inherent multi-generational homophobia:

Jamaica not the most homophobic country

In the face of calls for Jamaica’s buggery laws to be repealed, one of the main organisations that supports homosexuality has discovered that Jamaica is not the most homophobic place on Earth.

Having conducted a study, titled, Criminalising Private Consensual Intimacy, J-FLAG found that in Barbados, the offence of buggery can attract a maximum sentence of life in prison. In Trinidad and Tobago, the maximum sentence for buggery is 25 years in prison, while in Jamaica the maximum penalty is 10 years imprisonment.

“This is by no means an indication that the law does not affect LGBT people across the country,” Dane Lewis, J-FLAG’s executive director said.

“The buggery law continues to be a locally and internationally recognised symbol of state-sanctioned discrimination against LGBT Jamaicans. Reform of this unjust law remains urgent since the provisions do not align with the fundamental rights to privacy and equality before the law as secured in the Charter of Fundamental Rights and Freedoms,” he said.

ENDS

Good to see the attempt by the goodly JFLAG to provide some figures and a more balanced comparison but the public's response despite way heightened visibility shows me we have a long road ahead.

Peace & tolerance

H 

Bermuda Supreme Court expected to rule on SAME SEX MARRIAGE in April ............

The latest update has come via the petition site supporting this thrust. We understand that Supreme Court Justice Charles Etta-Simmons will rule on the recent court case where a Bermudian male is seeking to marry a Canadian male in Bermuda. The decision is scheduled on or before April 14th we understand.

We are hopeful for a positive outcome and that equality will be the winner.

You may recall in previous posts how the case came to be in 2016. 

The challenge read in part:

Same-sex couples want to marry for all the same reasons as their opposite-sex counterparts.

These reasons include: for legal security, to publicly celebrate their commitment, to provide greater legal protection for their children, or simply because they are in love.

FIRST, we will look at the benefits that flow to same-sex couples who marry. This is followed by the wider social benefits that come from removing discrimination from the Marriage Act and ensuring equality for same-sex couples.

******************************************************************************************

SECOND, married partners have immediate access to all relationship entitlements, protections and responsibilities.

This contrasts to de facto couples who must live together for a certain period before they are deemed to have legal rights.

A marriage certificate also allows married partners to easily prove their legal rights if challenged, for example in emergency situations. The capacity to quickly and easily prove one’s relationship status is particularly important for same-sex partners because prejudice against same-sex relationships can mean legal rights are denied.

******************************************************************************************

THIRD, allowing same-sex couples to be included in such a universal and valued institution as marriage will provide them and their families with real social and cultural benefits.

Landmark research led by Lee Badgett, Professor of Economics at the University of Massachusetts, describes and quantifies some of these benefits in two different places that have allowed same-sex marriages for several years, the Netherlands and Massachusetts.

[ii] Badgett found that same-sex partners overwhelmingly,

• felt marriage had increased their commitment and their sense of responsibility, and had generally strengthened their relationships

• believed their children were better off after their marriage, chiefly through legal protection for those children and enhanced feelings of security, stability and acceptance in the children, and

• felt participation and acceptance in their extended families and communities had increased because of their marriage

Her conclusion was that,

“Overall, the experiences of same-sex couples in two countries, the United States and the Netherlands, suggests that same-sex couples and their families are strengthened by a policy of marriage equality for same-sex couples.”

There is also a growing body of research showing that married partners, including same-sex married partners, are, on average, healthier, happier and longer lived, than their cohabiting peers, or singles. According to the US Centre for Disease Control, even rates of heart disease, drug use and stress are lower among married partners.

References:

[ii] Badgett, M.V., N. Goldberg and C. Ramos, The Effects of Marriage Equality in Massachusetts: A survey of the experiences and impact of marriage on same-sex couples. UCLA School of Law, 2009. Also, When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage. New York University Press, 2009.

*******************************************************************************************

FOUR, Bermuda's ban on same-sex marriage doesn’t only disadvantage those same-sex partners who seek to marry.

It disadvantages all same-sex attracted Bermudians, including those who are not in a relationship, or who would not marry, even if they could.

It does this by treating them as legally unequal to their heterosexual counterparts, and by not allowing them the same life choices.

Governments restrictions on who gay and lesbian Bermudians can marry violates their fundamental human rights in the same way the rights of Aboriginal Australians of African Americans were once violated by laws which prevented from marrying who they wished.

The association between the equality in marriage and freedom from second-class status is well understood in the context of the struggle for the civil rights of people of color.

In 1958, in the midst of the struggle for black civil rights in America, Martin Luther King Jr declared,

“When any society says that I cannot marry a certain person, that society has cut off a segment of my freedom.” 

[iii] Consider all the other groups in society, along with people of color and same-sex attracted people, who at one time or another have been denied the right to marry the partner of their choice: women, people from differing faiths, people with disabilities.

What they all have in common is that they have been regarded as too immature or irresponsible to make what is arguably the most important decision any individual can ever make, the choice of a life-long partner.

In the same vein, the gradual acceptance that members of these groups are fully adult, fully citizens and fully human, has been accompanied by an acceptance of their right to marry whomever they wished.

References:

[iii] King (Jr), M. L., Carson, C., Luker, R., and Russell, P. A., (2000) The Papers of Martin Luther King, Jr: Symbol of the movement, January 1957, University of California Press, Berkeley. Page 436.

Keeping our fingers crossed

Peace & tolerance

H

Buggery Referendum Still On The Cards says Holness ......

So here we are again this old familiar place with the political football of buggery referendum. The Gleaner in part carried the captioned statement and Prime Minister Holness in a prior interview with Nationwide's Cliff Hughes also hinted the same sentiments.

Prime Minister Andrew Holness has vowed that the major legislative changes he proposed during the lead-up to the 2016 general election will be implemented, but he is just not prepared to give a commitment as to when.

Going in to the February 25, 2016, general election, Holness promised that within the first 100 days of a Jamaica Labour Party (JLP) government, he would start the legislative, process to set a fixed date for general elections in Jamaica.

The then opposition leader further promised that within the first 100 days, his Government would start the legislative process to institute impeachment proceedings in Parliament and the process to institute term limits on the Office of Prime Minister.

In addition, Holness told Jamaicans that at a convenient time, there would be a referendum on the Caribbean Court of Justice as the country's final appellate court and the removal of the buggery law, while the full legalisation of ganja could also be considered as questions for Jamaicans as part of a grand referendum.

"All of those legislative things are still on the agenda," Holness told The Gleaner during a recent interview to mark his government's first year in office.

"Governments have to take the right time to do things. Trying to address issues that you put through a referendum, that doesn't happen overnight, and if it is not properly planned, if the populace is not properly educated, and if the political climate is not right, then the outcome that you would want might not be the outcome that you would get," added Holness as he pointed to the vote to leave the European Union in Britain (Brexit), which was against the wishes of the British Government.

"Yes, we should move ahead with the referendum. It is very important, especially as it has to deal with what I call the architecture of the society. But you have to deal with an extended period of public education, and you really have to ensure that the stakeholders are properly informed and that there is a system where the question that is going to be put is properly worked out," said Holness.

"That is not something that you could do within a year," added Holness.

I am not surprised as while the referendum business is a ace boon coon playing in the back pocket of Holness to whip up support, the pending constitutional challenge and the Belizean judgement have in a way thrown a wrench in the mix of using that card. Holness is well aware of the antigay fanatical penny section who can easily whip up support in a heartbeat, case in point the Half Way Tree rallies which are well supported, groups such as JCHS have essentially threatened the government and with a slim one seat majority things have to be played rather carefully.

remember this one?:

We just have to wait and see I guess.

More anon

Peace & tolerance

H 

here are some previous entries on sister blog Gay Jamaica Watch on this matter:

On referenda, politicians, integrity & buggery 

Suggestions that court victory in Belize could set precedent for decriminalisation  

Justice Minister says Belizean buggery law ruling a possible game changer 

Gay rights through referendum ........... 2005

also see:

New opposition spokesman on Justice says referendum not needed to amend Buggery Law

Buggery law referendum baiting by JLP in #Javote2016 campaign

Minister Golding trying to manipulate anti-gay sentiments (Jamaica Observer Editorial) .....

Justice Minister (Golding) exploits homophobia to gain CCJ support

The line in the sand for the PNP part 10 : Buggery referendum & more CCJ

No Buggery Law Removal says Justice Minister, Gay Marriage parachuted in yet again

Justice Minister reiterates his personal position on the Buggery Law, Anal Intercourse and Opposition Leader sides with antigay groups on Referendum on The Buggery Law 2014

Defintition of sex business back on the agenda again

So here we are again this old familiar place when will it just end already? it is indeed sad the backwardness on many fronts coupled with fearmongering, intellectual dishonesty and playing on the ignorance factor and moral correctness as it were still persists from the very first parliamentary submission on this in 1998 onwards see the 2014 version HERE. Talk about rubbish about gay marriage sneak in attempts as was hinted to a radio show this morning as well by church folk, oh boi!

The old debate about anal sex has been resurrected with a United Nations (UN) recommendation that Jamaica's Parliament approve a redefinition of sexual intercourse to add penetration of the mouth or anus in order to fairly protect men and women against sexual violence.

However, the local church lobby, through the Jamaica Coalition for a Healthy Society (JCHS) and the Associated Gospel Assembles (AGA), has been quick to advise lawmakers to reject the proposal. The fanatics are at it again even in the midst of accused shoddy pastors being named as suspects in inappropriate sexual assault of children of all things yet very little stridency in that department, homosexuality or related matters gets full attention non the less. Also see: Clerical abuse ugliness revealed as antigay religious voices barely respond

Radio talk show host made a startling revelation on his show that in trying to get clergymen to discuss the child sex abuse issue for his show all contacted where either travelling or not able to commit to an interview. 

The science of it all cannot be discounted but as per usual that is left out even with  Wayne West talking about biology and such, anyone remembers this case?: Labourer suffer near two years in prison on false accusation of buggery and other cases where it is suspect as to the efficacy of doctors' reports that are submitted into evidence when no physical examination was conducted on the accused in the first place and one's doom can be so easily sealed over a couple glasses of Wray & Nephew on the rocks.

meanwhile The Gleaner carried:

Mark Connolly, from the UN Country Team, on Wednesday, read out the recommendation to a parliamentary committee that has resumed its review of Jamaica's sex laws.

Sexual intercourse under the Sexual Offences Act is "penetration of the vagina of one person by the penis of another person".

But Connolly said that if the definition is "too narrow, the legal recognition of sexual violence against men and boys would not fall under it in an equally protective way as against women and girls.

"If sexual intercourse does not consider the possibility of other penetrative practices that may be used for inflicting grave sexual violence to any person, it does not recognise the same nature of any sexual penetration and diminishes particular humiliating or painful traumatic experiences that victims may go through."

Wayne West, head of the JCHS, said that the proposal disregards the 'biology of sex' and promotes the 'gay agenda'. "The UN is working an ideological framework that is seeking to remove consideration of the reality of biology in order to advance its political agenda. You don't have to redefine sex from its biological moorings in order to punish people who offend other individuals."

Like West, the AGA's first vice-president, the Reverend Peter Garth, insists that the redefinition to include anal sex is a route to legalise same-sex marriage in Jamaica. He said that an "honest" medical doctor would admit that that form of penetration is unhealthy.

"I believe anal penetration is wrong in 2017 and anal penetration will still be wrong in the year 3000," he said.

Rape Is Rape!

For Public Defender Arlene Harrison Henry, however, the United Nations' proposal is important especially because it also recommends a redefinition of rape as an act committed "against any person".

Under Jamaican law, only a woman can be raped - an offence that carries a penalty of up to life imprisonment, unlike buggery, which carries up to seven years' imprisonment.

"There is need for this broader protection of rights of men and women and it ought to be gender neutral. Rape is rape. Right now, a male child who is buggered, no one under our law committed the act of rape against him," argued Harrison Henry.

Janet Farr, president of the Nurses' Association of Jamaica, said that redefining sex is accepting the reality. "The definition that we had before was rather archaic. The definition might be speaking to a certain ideology, but this is what the reality is."

SHOULDN'T BE A CONTROVERSIAL ISSUE

Noting the importance of equality before the law, rights group Jamaicans for Justice (JFJ) and the gay lobby JFLAG have dismissed critics of the proposal.

"Protecting men and women from rape should not be controversial. The same groups opposing this common-sense reform are also arguing to maintain archaic marital rape exceptions that allow married men to rape their wives," said Rodje Malcolm, JFJ's advocacy manager

According to JFLAG's Glenroy Murray, it is "unfortunate" that Christian critics are taking a position that gives greater significance to some sexual violence over others.

Delroy Chuck, justice minister and committee chairman, has said that the review will run for up to six months, after which a report on the recommendations will be done.

ENDS

This business of rape where man as victims was raised for example in 2012 APPROXIMATELY three years after Jamaican policymakers ended a lengthy debate over changing the definition of rape, the United States last Friday upgraded their 80-year definition of the gruesome act to make it more gender-neutral, after much pressure from gender advocates.

also see: PNP Opposition unimpressed with 'painful and troubled' passage of Sexual Offences Bill 2009

Rape in the US was originally defined as "carnal knowledge of a female forcibly and against her will". However, the Justice Department upgraded the definition to mean the "penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim".

The new definition now makes it possible for men and women to be the victims as well as the perpetrators of rape, and is expected to solve inconsistencies in data regarding the number of rape victims in that country.

But while the move is being lauded in that jurisdiction by law enforcement and government officials, some believe that a changing of the definition for rape is not necessary in Jamaica at this time. This is especially so given the fact that persons, whether males or females, can now be charged for the carnal knowledge of another without their consent under the Sexual Offences Act of 2009.

The Act was a spin-off to the Incest Punishment Act and the Offences Against the Person Act, which addressed sex crimes; however, the current Act still recognises rape as a crime that can only be committed by a man against a woman. A man commits this offence when he has sexual intercourse with a woman without her consent, or recklessly not caring whether or not she consents. All other sexual acts carried out against an individual without their consent is considered a grievous sexual assault; therefore an individual, whether male or female, commits this offence when they penetrate the vagina or the anus of a victim with a body part other than the penis or with an object manipulated by the offender.

Head of the Centre for the Investigation of Sexual Offences and Child Abuse (CISOCA) superintendent Gladys Brown at the time, believes the Sexual Offences Act is very clear-cut and provides grounds on which a woman can also be charged for sexually assaulting a man without his consent, thereby eliminating concerns that the law is gender-biased. As such, she does not believe Jamaica should be concerned about changing the definition of rape as it now stands.

"If you are a woman and you go home tonight and you and your girlfriend tie up a man and you get a bottle and you insert it into his anus, you are going to go to prison for a good while because you are going to be charged for grievous sexual assault," she said.

"What the law tries to do, is not to minimise or maximise the offence but to separate them and where you could draw the line and make your judgement is when you look at the penalty, because there must be a separation in terms of the degree of the offence," she said.

While not discounting the trauma experienced by a woman who is sexually molested, she pointed out that a woman who has been raped usually has to consider other repercussions such as getting pregnant or contracting a sexually transmitted disease such as HIV/AIDS.

"When a man insert his penis inside of you, a whole range of things can happen to you to include you going crazy, going mad and feeling traumatised for the rest of your life," she said.

Under the Sexual Offences Act of 2009, a person who commits the act of rape is liable on conviction in a Circuit Court to imprisonment for life, or a time determined by the court not being less than 15 years. However, a person who commits the offence of grievous sexual assault is liable upon conviction in a Resident's Magistrates Court to imprisonment for a term not exceeding three years or upon conviction in a Circuit Court to imprisonment for life, or such other term as the court considers appropriate not being less than 15 years.

Executive Director for the Bureau of Women's Affairs, Faith Webster, believes that while the change in the definition of rape might be necessary for the US at this time, this is not necessarily the case for Jamaica.

"I suppose they are moving to the current situation, after seeing what exists on the ground; and you have to always continuously review and revise your laws in keeping with the current and contemporary situation," she said.

She believes the Sexually Offences Act of 2009, as it now stands, adequately deals with every aspect of the sexual assault of another without their consent.

In 2006, then Minister of Justice and Attorney General Senator AJ Nicholson had put forward a number of amendments to the Offences Against the Person Act, emphasising that there was an urgent need to reform the legislation. Provisions were also being made at the time to change the definition of rape so that women could be charged for committing the offence.

Nicholson argued that the gender-neutral concept of the Bill had been revised on the basis that men and young boys were also exposed to sexual violation and given this reality, they too should be afforded protection from sexual offences.

"I recall that there was a very lengthy discussion at the Joint-Select Committee at Parliament by various stakeholders throughout the island on the issue and the consensus was that they also wanted to keep the traditional definition; that is the penetration of the vagina with the penis," said Webster.

But Webster believes that even though men can get justice for being sexually attacked by a woman under the Sexual Offences Act, males still shy away from reporting cases where they have suffered grievous sexual assault because they have been raised to be macho. The act of a woman forcing a man to have sex in some sections of the society is seen as a good thing rather than something to complain about.

"In our cultural situation and the way we have been socialised in our country, that is always a factor and that could be one of the reasons too why rape of boys and men could be even higher than we really see, because persons are just not going to want to report that kind of an issue. It is even difficult for women to come forward and report a rape, moreover when you look at the situation with men, " she said.

Let's see what obtains in the next six months eh.

Peace & tolerance

H

some related matters:
Member of Parliament Lloyd B Smith on Of Buggery & Rationality 2014 

Parliamentary Committee struggles to define sexual intercourse 2009


JFLAG Tries to Clarify its Agenda 2014

Oh to change hearts and minds

J-FLAG now advocating for decriminalisation of same-sex acts (the change came to late for me) 

Opposition leader (JLP) reiterates his call for a referendum on Buggery .............

Commitment Ceremonies despite no legal marriage rights yet .......

In previous years I looked at commitment ceremonies in as parts of previous posts which followed up on some analysis across Jamaica for LGBT persons, other similar posts appear on Gay Jamaica Watch, Jamaican LGBT people have been making use of the avenues available to them to publicly as possible celebrate their love lives with friends and supportive family members and at that year in June often seen as the month of weddings there was no exception although the activities seem a little low keyed as years gone by as requests from the two or three Reverends who offer such duties to carry out the services fell. I would normally get calls to act as a witness in them, provide disc jock services for the reception or provide some sort of music on a storage form such as CDs or so.

This time around however as the Christmas holidays approach there has been a pleasant spike in terms of requests and questions/queries from persons in Jamaica seeking a space to have their ceremonies or renewal of ‘vows’ for older couples and as always since I have seen it lesbians tend to be the ones who go into long term unions than gay men but the latter have been taking the plunge as well. Like in part one of this entry the north American and indeed worldwide influences where ‘gay marriage’ is being made or has become legal persons are aspiring for same even if it is not legal yet here but in minds they want to show their love and explore the ceremonial components of a stable union. Foreigners from the United States mostly and as far as France in one case have also made queries via email and at first when I saw it I thought it was a joke or spam only to realise when I answered it was a serious inquiry.

With the advent of business avenues such as Airbnb as well and social media the requests are facilitated way easier than in times past, pink dollar markets are now open to virtually all. Non Jamaican and locals living overseas queries especially from those persons who are restricted by limited budgets or won’t or cannot afford a five star hotel after travelling want a more smaller intimate setting for their commitment ceremony nuptials. Lovely small and relatively reasonable priced spots in Portland, St Thomas and even Kingston outside of the traditional north coast flats are now easier to access directly or through blogs and NGOs. The price point is the key as prospective guests and couples avoid the middle man travel advisors or booking agents and make use of the advantages. Many of these properties under AirBnB and other independent guest house owners are seeing the opportunities as well and who attempt to roll out the red carpet albeit these are owned by heterosexuals. A married couple in Portland who came in contact with me via my blogs some years ago have been keeping in touch with me for some time now and have hosted two of the two ceremonies this year to much success ad satisfaction of the customers.

Same marriage or trans-persons marriages are not legal in Jamaica and may not be so for some time as the main hurdles of law reform on buggery and deep homo-negative and phobia driven stigma are on in earnest. Therefore the resistance to gay marriage is well embedded in all that nonsense and is still seen in this modern age as a method to ‘destroy the family’ when the family as we know and entrenched in the Jamaican constitution as between a man and a woman is already destroyed at best or is in serious trouble by those who already have the rights and privilege. If any damage is being done legal straight married couples (some Christians) are already doing a fine job not to mention those in the church and pulpits struggling with their own sexuality and hiding. At least with same sex marriage it provides some stability and maybe some same sexed married couples when the time comes can adopt children. On average for the past ten years end lots of young marriages end in divorce yet fanatical so called Christians who smear the rest of the church miss that fact that is so obvious. Just take a look at the official figures from the Statistical Institute of Jamaica, STATIN:

or

To unhinge the deeply entrenched definition of marriage in Jamaica as between a man and a woman will take lots of time and political will but the LGBT population though flirted with by politicians in recent years does not command the voting block in sufficient numbers or power from a local standpoint to force legislators to make the change; aforementioned fanatics and anti gay voices also still have large sway over a sometimes obsequious following who can be whipped into a frenzy with just one sentence opposing homosexuality as it were.

The spin offs are also clear in my mind, dress makers, small interior decorators, transportation folks and cake makers/decorators all benefit from the business, one cake maker/decorator a staunch Pentecostal was quite OK after she got involved in providing services for one ceremony, she reportedly jokingly remarked send the business come let the people live their lives.

It would be good if and when persons can get married and enjoy the full state recognition and benefits that flow such as legal coverage, housing and health benefits and the settlement of divorces through the courts to share the material assets and so on. Demanding marriage equality is not a zapper to those who already are allowed to marry and as is deceptively brought through in the subtext of anti gay advocacy. The word “equality” is often overlooked by those who oppose the push for same; and the fearmongering that Jamaica will be punished for same or that such goals are too lofty and imposed by foreigners.

Fortunately I am booked for a few ceremonies this year as opposed to the traditional month of June but the problem (if I can call it so) is the priests and pastors normally used are also busy with their own seasonal duties at their home churches; maybe a friendly Justice of the Peace (JP) may have to be identified.

Hope that the nuptials will have a good life after making their vows and live their dreams.

More anon

Peace & tolerance

H

also see older entries:
Buy no rings, you won’t wed; religious fear-mongering on gay marriage & the buggery law continues 

Lawyers’ Christian Fellowship’s continued fear mongering on Christian persecution post buggery law amendment & re-socialization 

When did anyone ask for gay marriage rights in Jamaica when we can't get basic tolerance ......... more smokescreen to deny recognition

There goes gay marriage paranoia again 

More gay marriage paranoia & hijacking of the homosexual debate by fanatics

Lesbian couple celebrate their marriage locally .........

3 gay couples to wed in Negril - Activist says move is an act of defiance

Cross-Dressing Appeal Case for Judgment in 2017

The case McEwan, Clarke, Fraser, Persaud and SASOD versus Attorney General of Guyana was heard on Friday, November 18, 2016 before Guyana’s Court of Appeal. The hearing was presided over by Chancellor of the Judiciary Carl Singh, Chief Justice Yonette Cummings-Edwards and Justice Brassington Reynolds. 

Gulliver McEwan, the first-named appellant, other representatives of the Guyana Trans United (GTU) and the Society Against Sexual Orientation Discrimination (SASOD) were also present at the hearing.

The Chancellor noted that the Court had received extensive submissions from both the appellants and the state, which did not require rehashing orally. However, Dr Bulkan, counsel for the appellants, noted that there were two issues in the state’s submissions that were raised for the first time and to which he would like to respond. He was permitted to address these issues, but after doing so the Court indicated that these new submissions should be recorded in writing, and both parties were given four weeks to present their further written submissions to the court.

The Court questioned counsel for the appellants on their contention that the law was uncertain, asking whether it was not possible for a Magistrate to define the term ‘improper purposes’ on a case by case basis by reference to its dictionary meaning. Dr Bulkan responded that permitting this would offend the requirement of the rule of law, since penal statutes had to be defined with sufficient clarity to give citizens prospective notice of how to conduct themselves. 

He pointed out that even if a person was eventually acquitted by a Magistrate, the fact of being charged and subjected to the state’s coercive powers would have already resulted in violations of their fundamental rights. He added that the term ‘improper purpose’ had no boundaries whatever, and thus gave police unfettered discretion in enforcing the law.

University of the West Indies' Faculties of Laws Rights Advocacy Project (U-RAP) co-coordinator, Dr. Arif Bulkan, and Litigation Specialist, Westmin James, in discussion after the Court of Appeal hearing with Managing Director, Joel Simpson, and Advocacy and Communications Officer, Schemel Patrick.

In his response, Counsel for the state, Kamal Ramkarran, insisted that since the appellants had pleaded guilty before the Magistrate, they were barred from bringing this constitutional action. He added that the case was hypothetical and academic and should be thrown out. Mr Ramkarran further stated that in order to bring a constitutional claim a person had to allege a past, present or future breach of their rights, whereas the appellants provided no evidence that they were likely to be charged in the future. Ramkarran stated that there are far more serious crimes deserving of a constitutional challenge, “like the buggery law”. 

He pointed out that a conviction for cross-dressing is punishable by only $15,000, whereas a conviction for buggery carries life imprisonment. He concluded by saying that to charge the police would have to peep in someone's room to see them committing the act, at which point the court indicated that it was obliged to consider the case before it

This case was initially filed in February 2010, following the widely reported arrests and convictions of seven trans persons for the 1893 summary offence of ‘being a man’ and wearing ‘female’ attire in a public way or public place, for an improper purpose.’ Four of the convicted persons filed this action, along with SASOD, after approaching the Faculty of Law UWI Rights Advocacy Project (U-RAP) for legal advice. Thereafter, with the assistance of U-RAP and local counsel, a constitutional challenge to the cross-dressing law was filed.

Even since the case was filed in February 2010, transgender persons are overpoliced, underprotected and have suffered physically and mentally because of the vagueness of the cross-dressing law in Guyana. The McEwan case argues that the archaic cross-dressing law, found in section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act 1893, is inconsistent with the Constitution of Guyana. It also argues that the conduct of the Chief Magistrate, who told the individual appellants that they were confused about their sexuality and should follow the teachings of Jesus Christ, was also not consistent with the Guyana Constitution.

The legal team for the appellants included Mr. Nigel Hughes, Dr. Arif Bulkan, and Mr. Gino Persaud.

The Court of Appeal is expected to set a date for judgement in early 2017 after both sides have presented their further written submissions.