Belize’s ruling on gay sex supports access to HIV services — UNAIDS

As we await the written judgement on the concluded case of the buggery law constitutional challenge in Belize here is a position from UNAIDS

Dr Cesar Nuñez

KINGSTON, Jamaica — The United Nations Programme on HIV/AIDS (UNAIDS) today welcomed Belize’s Supreme Court decision to overturn a portion of the small Central American country's criminal code that outlawed gay sex.

This development, UNAIDS said in a release today, reinforces human rights and supports access to HIV services.

Yesterday, Chief Justice of Belize Kenneth Benjamin ruled that Section 53 of the Belize Criminal Code is inconsistent with the Constitution. The law criminalised “carnal intercourse against the order of nature”, including anal sex between consenting adults. 

The chief justice ruled that this provision violated the rights to human dignity, privacy, freedom of expression, non-discrimination and equality before the law

This development, according to UNAIDS, comes at a critical juncture in the HIV response. Through the Sustainable Development Goals the world has committed to end the AIDS epidemic as a public health threat by 2030. In order to do so member states have pledged to ensure that no one is left behind.

For gay, bisexual and other men who have sex with men in most of the English-speaking Caribbean, discriminatory and punitive laws regarding sex between men hamper access to HIV and STI prevention and treatment and other social services by reinforcing discriminatory attitudes, UNAIDS said.

The organisation explained that many people are reluctant to reveal their same sex behaviour due to fear of discrimination, harassment and violence. This ruling removes a key stumbling block to gay, bisexual and other men who have sex with men accessing HIV testing and treatment services.

UNAIDS advocates for the removal of punitive laws which are detrimental to the AIDS response. This must be combined with strategies to increase testing, treatment and treatment retention rates, particularly among young people, sex workers, transgender people, gay, bisexual and other men who have sex with men and other key populations, the release said.

Additionally, UNAIDS said the move is an encouraging step forward for a country that has already demonstrated a relatively high level of positive attitudes regarding homosexuals.

A 2013 poll commissioned by UNAIDS found that two out of every three Belizeans were either accepting or tolerant of homosexuals (68 per cent). In addition, three of four respondents agreed that people should not be treated differently on the basis of their sexual orientation (75 per cent).

“The ruling of the Belize High Court echoes the widespread public opinion in Belize that people should be treated with dignity and equality, regardless of who they love,” said UNAIDS Director of the Latin America and Caribbean Regional Support Team, Dr Cesar Nuñez.

also see from GJW:

Jamaica Council of Churches response to the Belize Supreme Court buggery law decision

Suggestions that court victory in Belize could set precedent for decriminalisation in region

Anti-Sodomy Laws Across The Region Should Now Tumble - UN, Human Rights Groups 

Belize Supreme Court overturns sodomy law for consenting adults

meanwhile:

leading antigay voice Dr Wayne West upon realising now that he and others may not get their way in keeping antiquated laws wants to play on the public's ignorance to go the route of an obvious uninformed referendum of buggery while ignoring the chief way of the interpretation of law.

West says such an important change in societal norm should have the input of Jamaicans.

West says he believes that any change to Jamaica’s law criminalising anal sex should come from a vote by Jamaicans in a referendum and not from a court.

West notes that courts in the US overturned matrimonial laws legalising same sex marriages despite citizens voting in referenda against gay marriage.

He says Jamaica should seek to avoid such a situation, stressing that a national consensus, through a referendum on buggery, is the right way to go.

United Belize Advocacy Movement homosexuality case raps ......... judgement to come

 

After 3 years of anticipation, and 4 long days of legal back and forth, the Caleb Orozco United Belize Advocacy Movement head's challenge to Section 53 of the criminal code in his country has finally been argued to completion, and tonight or until about December, it is in the hands of the Chief Justice to make a decision.

Eamon Courtney, the lead attorney for the Churches, finished his presentation this morning. His argument explained why the Orozco challenge should be struck out of court.

After a 5 hour presentation, Courtenay briefly explained that thrust of his argument: that Orozco could not prove that any of his constitutional rights were violated because he’s never been prosecuted, and will likely never be prosecuted for his sexual preference.

Eamon Courtenay - SC - Attorney for the Churches

 

"Once UNIBAM was struck out as a claimant then it left Mr. Orozco's affidavit with very little evidence about a personal prejudice that he was being affected by and in the absence of that - the cases are very clear that you cannot bring a claim under the constitution. We relied on cases and I heard Mr. Hamel-Smith in reply criticizing me for the submission for making it late but I think he will understand that that is the law. Whether I make it now or yesterday - that is the law. He has no standing in this claim. I don't want the impression to be given as I understand it has been given in some quarters of the media that the church is insensitive or intolerance to the rights of gay people, lesbians or transgender people. I submitted quite carefully and clearly to the court that in face one of the most tolerant entities in our democracy is in fact, the church.

We are understanding of Mr. Orozco's position and in fact - Mr. Orozco should be praised for having raised this issue. The point is that he has raised it in the wrong forum. The court is not an academic institution, it is not a place where you come and ask for advisory opinions for example the International Court of Justice. You have to suffer a right, you have to suffer a prejudice and when that happens to you then you come to court. All the cases that were relied on by my learned friends except the ones that come from Singapore - I distinguish that because they don't have an equivalent to our section 20. They said that in that case the mere existence of the provision on the law is enough - they don't have section 20. Our section 20 says - very carefully that you have to have a right that is being contravene, is likely to be contravene, or has been contravened in relation to you. So it is not an academic question and if Mr. Orozco cannot prove that the police has threatened him, that they have arrested him, that there's a likelihood that he's going to be prosecuted or arrested or somehow prejudiced by this law then he cannot have standing. The proper place for him to seek redress is in the National Assembly - seeking to get the legislators to change the law on the matter. I made the submission to the court this morning that all the evidence from Mr. Orozco, all the evidence - document after document shows representations to the National Assembly asking them and the government to change the law. 

We sited responses from the government saying that they are not prepared to do it and so what I told the court is that the claimants are upset about that and have come to the Chief Justice and asking him to lash and discipline the legislatures because they are not doing what Mr. Orozco wants. That has no place in our democracy - when it comes to law making and when it comes to defining what is a criminal offense in Belize - that is determined by the National Assembly and not by the Supreme Court." But as we showed you, there are members of the church who have the impression that if the 3 words that Orozco says are offensive to his rights are removed, it deflates Section 53 of the criminal code, and makes it ineffective against perpetrators of male on male rape, and child molestation.

Courtney told us that he can understand why that concern has arisen. According to him, it partly because the claimant’s case is unclear; it is not applying the strength it needs to qualify for a proper challenge in court.

Eamon Courtenay
"There case isn't clear. I pointed it out to the Chief Justice, in fact they have presented the court with four options. The one option they have not presented the court is striking down Section 53 completely so once that is off the table, the question is what type of sexual practices are constitutional and what are not? That is why they have to give the court four options to choose from. The point that we're making is once you move away from an absolute challenge to Section 53 and say to the court 'I am giving you a menu' and as an example I gave to the court - 'this is a very nice steak and how do you want it? Rare, medium rare, medium well or you want it well done?' They are giving four options to the chief justice asking him to choose how he likes his 'steak'. The constitution precludes that type of operation by a court. They should take those four options to the government, to the legislature and say 'we advocate for one or two or whichever' and have the legislature choose it."

And in relation to this issue, UNIBAM sent out a release yesterday in which it condemned all of abusive sexual behaviour, including all forms of rape and child molestation.

According to the organization, Section 53 is not the answer to male on male rape, and that there needs to be legislative reform on the rape laws to make them gender-neutral.

In relation to the challenge in court, Chief Justice Benjamin has reserved judgement for a date to be later announced.

Some content from Belize 7 news and videos by Brian Paul Welsh, to see more UNIBAM stories click the tag immediately below.

UNIBAM Gay Rights Case Slated for May 7-10, 2013

also see: United Belize Advocacy Movement, UNIBAM Makes A Comeback from sister blog GLBTQJA (Blogger)

meanwhile  reports

The landmark case of the government of Belize and the churches versus UNIBAM continued this week as the defense and the prosecution made new statements in court.

It is believed by some UNIBAM supporters that Justice Michelle Arana, in addressing the position of UNIBAM’s preliminary filing of the case, struck out its claim for individual rights but did recognise them as an organization that can claim human rights under the law.

UNIBAM representative, Caleb Orozco, stated that he feels positive about the December 5, 2012 court decision, and that Justice Arana’s ruling in pushing the full hearing of the case to May 7-10 of 2013 has given them time to prepare for the next stage, where they will be able to submit extensions by February 18, 2013. He reiterated that UNIBAM is relentless in its struggle for what he called, “fundamental rights and freedom.”

But critics are noting an attempt by UNIBAM to exploit the recent statement made by United States Secretary of State Hillary Clinton that governments like Belize must do everything in their jurisdiction to modify their laws to protect people who are transgender or who are engaged in same-sex relations.

Pastor Scott Stirm, a spokesperson representing the Belizean churches, still felt that the churches have made some inroads on the case and expressed deep support of the church’s position to stand its ground.

“UNIBAM is trying to use the preamble of the constitution to push a lifestyle in Belize that is unacceptable,” he stated, “They are trying to push this issue as a human rights issue. And there is an international/global agenda that is pushing homosexuality and abortion.”

“On a moral basis we disagree with the U.S. government,” said Stirm. “UNIBAM receives support from the U.S. in the name of human rights. But we will not allow them to legalize this lifestyle so that they have free course to go into the schools and teach our kids their lifestyle.”

Amandala has not been able to get any government position on the latest court proceedings on the issue, but learned through sources that Government remains firm on its position.

The Obama administration recently sent a message this year to countries in the Caribbean and Central America stating that there would be economic repercussions for non-compliance with its policies of acceptance of homosexual and transgender lifestyles.

However, most of the targeted governments – almost all of which are developing countries — have challenged the U.S.’s position as an attempt to force them to accept policies that are not supported by their respective populations.

Orozco, for his part, has expressed his group’s intentions to take the issue to the Court of Appeal and even to the Caribbean Court of Justice if the opposition against them from Government and the religious community continues to mount. Orozco says that they will continue to organize and will start a popular education campaign on the rights of transgender and homosexual individuals across Belize.

“There is a layer of comfort from the U.S. Secretary of State Hillary Clinton’s support for our cause here in Belize,” stated Orozco.

According to Pastor Stirm, the Belize Human Rights Commission has shown no backbone in addressing morally degrading issues in Belize. He said that they have exploited the issue for their own interest.

“The Human Rights Commission is pushing the agenda because they are getting big funding for this,” stated Stirm. “Where was the Human Rights Commission when Jasmine Lowe was murdered?” he asked.

ENDS

We of course a keeping a close eye on this case as it could be the game changer for the Caribbean and the struggle for same sex intimacy to be finally become a real private matter and consensual. 

Our courts already have set a precedent over the years in terms of buggery cases that have adults caught in a "compromising position" (even non-penetratively - gross indecency) in a private setting, indeed my own experience having gone through the system as a person (along with others) charged for buggery in 1996, a doctor's report, an evasive examination with fingers inserted in my anus, swabs taken from my urethra and all to supposedly find spermatozoa cells inside my rectum and examination of my sphincter muscle to see if a dick was inserted so as to prove that penetration took place and not rupture caused by hardened stool yet the case was eventually adjourned sine die almost two years after as the arresting officers stop attending the sessions despite subpoenas being issued and there was no concrete evidence to suggest buggery it was all done to embarrass us, that part they succeeded only for a time but we have all moved on.

Most cases that do go to full trial with a conviction tend to be cases of a homo-paedophile nature where there is a younger victim but which also does not necessarily suggest the orientation of the perpetrator as we are told by the experts, 

see: Men Who Rape The Psychology of the Offender

Another valid reason I suppose for the law to be removed but by what means - an external challenge (two already exist), a referendum, a conscience vote (as suggested by PM Simpson Miller) or a proper debate in the houses of parliament with the necessary amendments with the commensurate actions to make such a radical constitutional change, wiping out saving clauses and all?

Peace and tolerance

H

Current Legal Cases Challenging the Criminalisation of Homosexuality Supported by the Human Dignity Trust

Belize: A Constitutional Challenge to the Laws Criminalizing Homosexuality in Belize

The Trust is involved in proceedings brought in Belize by Mr Caleb Orozco. At a regional consultation convened by the Caribbean Vulnerable Communities Coalition (CVC) in Montego Bay, Jamaica 28 August 2011 under the PANCAP Global Fund Project, leaders from more than 20 Caribbean organisations representing the LGBT community and other human rights entities unanimously voted to support their Belizean counterparts in the legal challenge.

The Trust is appearing as an interested party in the proceedings, along with the Commonwealth Lawyers Association (“CLA”) and the International Commission of Jurists (“ICJ”) and is providing submissions focusing on international and comparative law. Each organisation is appearing as an interested party with the consent of Mr Orozco, UNIBAM, and their legal representatives. The Trust, the CLA and the ICJ are represented pro bono by Godfrey Smith, the former Attorney General of Belize, Lord Goldsmith QC, as well as Lord Goldsmith’s firm and one of the Human Dignity Trust’s legal panel members, Debevoise Plimpton LLP, Tim Otty QC (Chairman of the Trust) and Allison Jernow (Senior Legal Advisor at ICJ).

Northern Cyprus: Petition before the European Court of Human Rights (ECtHR)

The Trust has lodged a case before the European Court of Human Rights on behalf of an anonymous applicant supported by the local LGBTI organisation, Queer Cyprus (formerlyHomofobiye Karsi Inisiyatif (Initiative Against Homophobia)). The Trust is working with a Northern Cypriot lawyer, Oncel Polili, and is supported by Taylor Wessing from our Legal Panel. Nigel Pleming QC (39 Essex Street) and Tom Mountford (Blackstone Chambers) are counsel. Jonathan Cooper, the Human Dignity Trust's chief executive, was interviewed about this case on BBC Radio 4's Today Programme on Monday, 6th February. Read press release here

Jamaica: Petition before the Inter-American Commission on Human Rights (IACHR)

The Trust has lodged a petition on behalf of Jamaica Forum for Lesbians, All Sexuals and Gays (J-FLAG) and Mr Gareth Henry (a founder member of J-FLAG) before the IACHR in order to seek (without limitation) a declaration from the Commission to the effect that the maintenance and enforcement of certain laws by Jamaica in relation to private consensual sexual conduct by adult males breach Jamaica’s obligations under international law, and specifically under the American Convention on Human Rights and the American Declaration on the Rights and Duties of Man, and that Jamaica has otherwise failed in its duty to protect the rights and well-being of its homosexual citizens, in violation of those obligations.

The Trust is providing support to the petitioners. Edward Fitzgerald QC and Douglas Mendes SC are counsel. Litigation support is being provided by Freshfields Bruckhaus Deringer LLP, a member of the Trust’s legal panel.

There is also a meeting scheduled in London as per invitation:

Please join the Human Dignity Trust for a drinks reception, kindly hosted by Doughty Street Chambers, which will be an opportunity to meet LBGT rights campaigners from Jamaica.

The Human Dignity Trust, as lawyers for two petitioners (Gareth Henry and human rights group J-FLAG), has brought a case before the IACHR in Washington which argues that the very existence of anti-homosexuality laws in Jamaica leads to persecution based on sexual orientation.

Please come and show your support.

Venue

Doughty Street Chambers, 54 Doughty Street, London WC1N 2LS
www.doughtystreet.co.uk/about_chambers/contact_us/location_map.cfm

Time

6:00pm – 8:00pm, Wednesday, 17th October 2012

Please RSVP to Chris Atkinson  administrator@humandignitytrust.org

THE UNIBAM CASE explained .......................

1. THE UNIBAM CASE

2. What the case is about Whether the criminalisation of consensual same sex sexual conduct is contrary to the Belize Constitution Very important case Opportunity for Belize to lead the way and set the standard for the Caribbean in righting a serious injustice What the case is not about: Not about same-sex marriage Not about adoption Not about any other social/other right It is scaremongering to suggest otherwise. Very important case Opportunity for Belize to lead the way and set the standard for the Caribbean in righting a serious injustice What the case is not about: Not about same-sex marriage Not about adoption Not about any other social/other right It is scaremongering to suggest otherwise.

3. Section 53 of Belize Criminal Code Section 53 states that “every person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years”

4. History of Section 53 Section 53 is a colonial import No pre-existing culture or tradition in Belize that required the punishment of consensual same-sex sexual conduct Was imposed on Belize (as on other colonies) by the British rulers 

5. History of Section 53 cont.’ 1944 consensual same-sex sexual relations categorised as an ‘unnatural crime’ Ordinance 14 of 1944 repealed the requirement that unnatural crime was only committed where the act was accompanied by the use of force or lack of consent The offence has not been amended since Belize’s Independence [PETER: WE DO NOT HAVE THE TEXT OF ORDINANCE 14] Originally, included “use of force” or “lack of consent” – fundamental aspects which are legitimate to criminalise.[PETER: WE DO NOT HAVE THE TEXT OF ORDINANCE 14] Originally, included “use of force” or “lack of consent” – fundamental aspects which are legitimate to criminalise.

6. Parties to this case Claimants – Caleb Orozco and UNIBAM Defendant – Attorney General of Belize Interested Parties Human Dignity Trust Commonwealth Wealth Lawyers Association International Commission of Jurists Roman Catholic Church of Belize Belize Church of England Belize Evangelical Association of Churches

7. Genesis of Case University of the West Indies (UWI) United Belize Advocacy Movement (UNIBAM) Some have alleged that this is a western campaign but contrary to what has been reported, this is a home grown case. 22 July 2011, Amandala reported on a joint statement issues by the Belize Council of Churches that denounced Unibam’s suit as being “heavily influenced by foreign interests who seek to impose a worldwide view that directly contradicts the supremacy of God…” This is a case brought by Belizeans, about the Belizean Criminal Code and the Constitution of Belize No foreign entity driving case – merely supporting. The Commonwealth Lawyers Association, the International Commission of Jurists and the Human Dignity Trust who have joined in support of UNIBAM’s case as Interested Parties are not foreign interests challenging Belize’s national sovereignty and way of life. The criminalization of gay sexual identity is a violation of international human rights law and therefore necessarily attracts the interest and involvement of the international community. These three organizations reflect the concerns of the international legal community. [Belize cannot enjoy the benefits of being a member of the international community when it is convenient to do so, but opt out of international human rights norms when it chooses to.] Some have alleged that this is a western campaign but contrary to what has been reported, this is a home grown case. 22 July 2011, Amandala reported on a joint statement issues by the Belize Council of Churches that denounced Unibam’s suit as being “heavily influenced by foreign interests who seek to impose a worldwide view that directly contradicts the supremacy of God…” This is a case brought by Belizeans, about the Belizean Criminal Code and the Constitution of Belize No foreign entity driving case – merely supporting. The Commonwealth Lawyers Association, the International Commission of Jurists and the Human Dignity Trust who have joined in support of UNIBAM’s case as Interested Parties are not foreign interests challenging Belize’s national sovereignty and way of life. The criminalization of gay sexual identity is a violation of international human rights law and therefore necessarily attracts the interest and involvement of the international community. These three organizations reflect the concerns of the international legal community. [Belize cannot enjoy the benefits of being a member of the international community when it is convenient to do so, but opt out of international human rights norms when it chooses to.]

8. Arguments against criminalization Laws which criminalise consensual same sex conduct relegate people to an inferior status and degrade people’s dignity by declaring their most intimate feelings “unnatural” and illegal breaching one of the most fundamental human rights: the right to dignity

9. Arguments against criminalization cont.’ Section 53 is discriminatory, invades privacy, and creates inequality Legislation under challenge flies in the face of the changing world view and a growing body of international human rights law and precedents demanding that such laws should be struck down

10. The Belize Constitution Recognises “the equal and inalienable rights with which all members of the human family are endowed” Rights and freedom include rights to dignity, equality, privacy and health

11. Right to Dignity By the first Recital of the Constitution, the people of Belize: “affirm that the Nation of Belize shall be founded upon principles which acknowledge the supremacy of God, faith in human rights and fundamental freedoms, the position of the family in a society of free men and free institutions, the dignity of the human person and equal and inalienable rights with which all members of the human family are endowed by their Creator” (emphasis added).

12. Right to Dignity cont. Human dignity is a fundamental and foundational value which underlies and gives meaning to other human rights, including the rights to privacy, equality, and the right to be free from inhuman or degrading treatment At its core, the concept of human dignity reflects the principle: “that every human being is worthy of respect” It is used “to explain why human beings have rights to begin with”. At its core, the concept of human dignity reflects the principle: “that every human being is worthy of respect” It is used “to explain why human beings have rights to begin with”.

13. Right to Privacy In Belize, it is protected in Sections 3(c) and 14 of the Constitution: 3. - …every person in Belize is entitled to the fundamental rights…to (c) protection for his family life, his personal privacy, the privacy of his home and other property and recognition of his human dignity; 14.-(1) A person shall not be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. The private and family life, the home and the personal correspondence of every person shall be respected.

14. Right to Privacy cont. Decisions of the HRC interpreting the ICCPR, the ECtHR interpreting the European Convention, the IACHR interpreting the American Convention on Human Rights, and national courts interpreting their own constitutions all make clear that sexual activity between consenting adults in private is protected by the right to privacy

15. Right to Privacy cont. The right to privacy means a realm of space reserved for individual decision-making and activity The State may not invade such space without good cause Privacy protects personal choice and autonomy

16. Right to Privacy Indeed, in the words of one U.S. court, “it is hard to imagine any activity that adults would consider more fundamental, more private and, thus, more deserving of protection from governmental interference than non-commercial, consensual adult sexual activity.” Gryczan v State, 283 Mont. 433, 451, Supreme Court of Montana (1997)

17. Right to Equality The rights to equality before the law and non-discrimination are guaranteed in every major international and regional human rights instrument The UN treaty bodies, charged with monitoring compliance with the international human rights conventions, the ECtHR and the IACHR, and National courts, interpreting their own constitutions and national laws have all found that differences in treatment based on sexual orientation are arbitrary, in violation of both non-discrimination and equal protection guarantees Universal Declaration of Human Rights Art. 2; ICCPR Arts. 2(1) & 26; ICESCR Art. 2(2); American Convention Arts. 1 & 24; European Convention Art. 14; African Charter on Human and Peoples’ Rights Arts. 2 & 3. Universal Declaration of Human Rights Art. 2; ICCPR Arts. 2(1) & 26; ICESCR Art. 2(2); American Convention Arts. 1 & 24; European Convention Art. 14; African Charter on Human and Peoples’ Rights Arts. 2 & 3.

18. Right to Equality cont. The principle of equality means people who are similarly situated must be treated alike The failure to do so constitutes discrimination unless the difference in treatment is justified, meaning that the criteria for the differentiation are reasonable and objective and the aim is to achieve a legitimate purpose

19. Right to Equality In striking down sodomy laws on equality grounds, courts have concluded that such laws bear no rational relationship to a legitimate State purpose E.g. Lawrence v Texas (US) – moral disapproval not a legitimate governmental interest.E.g. Lawrence v Texas (US) – moral disapproval not a legitimate governmental interest.

20. Role of the Belize Courts Under the Constitution, Courts are given the role as guardians of fundamental rights and freedoms Empowered to secure the enforcement of any provisions of the Constitution and to determine the validity of any law Section 2 of the Constitution imposes a duty on the courts to ensure and protect the supremacy of the Constitution, and strike down legislation that is incompatible with the Constitution

21. Role of the Belize Courts cont.’ Patrick Reyes v The Queen Privy Council Appeal No. 64 of 2001, an appeal from the Court of Appeal in Belize concerning the constitutionality of the mandatory death penalty, “The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society…In carrying out its task of constitutional interpretation the court is not concerned to evaluate and give effect to public opinion….”

22. When will the case be heard? Hearing originally scheduled 18 July 2011 A number of subsequent applications Date to be set by the Court for 2012

23. Global trends In a majority of the world’s countries, same-sex sexual relationships are not criminalised Either because: Never criminalised to begin with, or Legislatures and courts have recognised that the criminalisation of consensual private adult sex violates constitutional and international human rights laws and standards 84 countries criminalise homosexuality (includes 42 Commonwealth countries)84 countries criminalise homosexuality (includes 42 Commonwealth countries)

24. Global trends cont.’ Excepting Zimbabwe and Botswana, every superior, constitutional and supranational court that has considered the issue of the criminalisation of private consensual same-sex sexual relations has held that such laws contravene fundamental rights and freedoms

25. Global trends cont.’ Examples: The United States Supreme Court in Lawrence v Texas struck down the U.S. sodomy laws, explicitly overturning its previous decision in Bowers v Hardwick on the basis that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment

26. Global trends cont.’ The South African Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister of Justice found that the statutory provisions prohibiting sodomy were unconstitutional They violated the right to equality, privacy and dignity They unfairly discriminated against gay men on the basis of sexual orientation

27. Global view outside the judicial arena December 2008, 66 States signed statement presented to the United Nations General Assembly affirming the principle that international human rights law protects against violations based on sexual orientation and gender identity March 2011, 85 States signed a statement presented to the UNHRC that called on States to end criminal sanctions based on sexual orientation

28. Global view Cont. OAS has repeatedly condemned acts of violence and human rights violations committed against persons because of their sexual orientation The UN Secretary General, The High Commissioner for Human Rights and heads of various UN agencies have all spoken-out – calling for the worldwide decriminalisation of homosexuality

29. Global view cont. In January 2011, the UN Secretary General, Ban Ki Moon, categorically declared that “We must reject persecution of people because of their sexual orientation or gender identity who may be arrested, detained or executed for being lesbian, gay, bisexual or transgender. They may not have popular or political support, but they deserve our support in safeguarding their fundamental human rights. I understand that sexual orientation and gender identity raise sensitive cultural issues. But cultural practice can not justify any violation of human rights”

30. Global view cont. December 2009 Holy See stated: “The Holy See continues to oppose all grave violations of human rights against homosexual persons…The Holy See also opposes all forms of violence and unjust discrimination against homosexual persons, including discriminatory penal legislation which undermines the inherent dignity of the human person…”

31. Global view cont. December 2011 – Obama administration vowed to actively combat efforts by other nations that criminalise homosexual conduct October 2011 – David Cameron pledged to withhold UK aid from governments that do not adhere to proper human rights, e.g. Malawi had £19m of budget support suspended following concerns about its attitude to gay rights

32. The 4 wrongs Honourable Justice Michael Kirby: Wrong in legal principle They exceed the proper ambit and function of the criminal law in a modern society Wrong because they oppress a minority in the community and target them for an attribute of their nature that they do not choose and cannot change

33. The 4 wrongs cont.’ Wrong because they fly in the face of modern scientific knowledge about the incidence and variety of human sexuality Wrong because they put a cohort of citizens into a position of stigma and shame that makes it hard to reach them with vital messages about safe sexual conduct, essential in the age of HIV/AIDS

34. Significance of Case Set an important precedent for the rest of the Caribbean Commonwealth and beyond Recognition that sexual orientation is protected under the Constitution and a prohibited ground of discrimination Interestingly, the Political Reform Commission in Belize in 2000 recommended that sexual orientation be explicitly included as a prohibited ground of discrimination.Interestingly, the Political Reform Commission in Belize in 2000 recommended that sexual orientation be explicitly included as a prohibited ground of discrimination.

35. Conclusion There is little doubt that ultimately, the Court of Belize ought to declare section 53 of the Belize Criminal Code to be unconstitutional Questions?

United Belize Advocacy Movement (UNIBAM) discusses sexual orientation; is it a choice?

The President of United Belize Advocacy Movement (UNIBAM), Caleb Orosco, is taking the government to court, challenging Section Fifty-Three of the criminal code on the grounds that it criminalizes homosexuality. This morning the organization held a meeting at the Radisson to dialogue with various human rights agencies. It discussed a myriad of issues including sexual discrimination and ways to increase the understanding of gender based violence, homophobia and LGBT human rights issues. According to Orosco, the LGBT movement is raising consciousness on sexual orientation across demographic lines. Clinical Psychologist, Asa DeMatteo, presented scientific findings on the origins of sexual orientation and Orosco says it is not a choice.


Caleb Orosco, President, UNIBAM

CALEB OROSCO

“I am proud to say that the one thousand or so people that we have in our close group in Belize for the Constitutional Challenge have not only raised awareness, but they have engaged the Christian right and their position. I am most proud of the fact that we’ve taken sexuality out of the closet—and not just LGBT sexuality; I mean sexuality as a whole. Nobody in this country can ever say that they do not or have not had a discussion on sexual orientation. Nobody can ever say that they don’t know what discrimination is like or they cannot say that there isn’t a face to the issue of discrimination. We had invited a clinical psychologist to try to build new research around epigenics and basically it is scientific research that talks about the origins of sexual orientation. 

For us, his presence here has value because he brings not only a professional perspective but a scientific background in explaining what things are. His value is also to break up some of the myths that have been projected out there in the media; that sexual orientation is a choice, that sexual orientation you can pray the gay away. These are fundamental issues which have hardly begun to be address within the media or the education system. So his presence is about increasing the awareness of the other scientific research.”

According to Orosco, no individual should endure abuse because of their sexual orientation. According to Clinical Psychologist, Asa DeMatteo, the court challenge is the beginning of a long process which will inevitably lead to the tolerance of differences on sexual orientations.

ASA DEMATTEO

Asa DeMatteo, Clinical Psychologist

“Gay people say I’m a citizen, I pay my taxes, I live a life in this country or my country and I want to be equal under the law. Belize is like the United States in the 1970s or England in the 1980s; this is moved faster in some places than others. A lot of people, particularly here in Belize talk about it as a gay agenda or as a conspiracy. I don’t know how you call it a conspiracy for someone to say I wanna be equal. I want to be treated equally under the law. The biggest opposition—but not all the opposition—comes from the religious community and that’s just a segment of the religious community. I don’t think they should be asked to accept it. What they have to be asked to do is keep the laws out of discrimination. 

No church has to accept that homosexuality is not a sin; no church has to accept gay marriage or anything like that. Religion like sexuality is a private matter that each person gets to choose. And so what they need to do is tolerate differences. This issue is for me and for gay people; this is our life. This is our everyday twenty-four seven life that we have to cope with; this insult kind of insult to our dignity and our civil rights. For the church it is a side issue. It’s an important to them, but it is not central. Central to their belief is their love of god and their adherence to biblical principles; that is their central focus. And why they are going to accept it is that they are just gonna give up.

That’s what happen all across the world. They’re gonna say all right already we understand the equality and how that happens so far—and I can only look at history to predict how it happens in the future—is that gay people say I’m gay. Caleb Orosco started this thing but that’s not gonna change. What’s gonna change people is when they find out; oh my butcher is gay; oh my nephew is gay; oh my son is gay; my daughter is in love with a woman. When you know that someone is gay, you can’t hate them anymore because they’re your community; they’re your brothers and sisters and friends and neighbors and business men and stuff like that. And that’s how it happens all over the world. And Belize isn’t different from the rest of the world. And it will come. This is the beginning of a long process.”


UNIBAM, as an organization has been struck off from the case by the court, but Caleb Orosco, its president is continuing with the legal challenge.

Churches deliver a holy blow to our neighbours UNIBAM

The United Belize Advocacy Movement (UNIBAM) received a major blow inside the courtroom of Supreme Court Justice Michelle Arana.  UNIBAM is challenging Section Fifty-Three of the criminal code, which bars carnal intercourse against the order of nature. The crime is an indictable matter with the possibility of ten years in prison.  This morning, a ruling was handed down that struck out UNIBAM as an interested party in the case. The attorneys for the Council of Churches submitted that UNIBAM has no locus standing, and therefore asked for their application to be struck out. In January, the Council of Churches’ attorney, Rodwell Williams made the arguments that some expert affidavits were given, contrary to the rules, and without the leave of the court. Outside the Supreme Court another attorney for the Council of Churches, Michel Chebat explained what the ruling means for the interested parties.

Michel Chebat, Attorney for Council of Churches
“The judge handed down her decision today and what she did was she allowed the application by the church interested parties which were twofold. The initial application was to have UNIBAM struck from the case, which was granted and secondly to have the affidavits of the purported experts filed by the claimant for those to be struck out as having not complied with the rules. And so they were both granted. However, the judge has also granted leave for them to re-file in the event they wish to do so.”

Jose Sanchez
“How significant is the fact that the UNIBAM has been struck out? What role does that play in the entire case?”

Michel Chebat
“As I said, I don’t believe it will stop the case from going forward because there is a second claimant. But in terms of—I suspect—in terms of the bigger picture and appearances, I understand UNIBAM is the umbrella organization, so it may or may not be detrimental to them. I am not sure.”

Jose Sanchez
“In terms of your case, where does it go from here? Procedurally, where do you go?”

Michel Chebat
“Our next step is to file our expert witnesses affidavits which will be done within sixty days of today’s date and then we come back to court for a case management at which time the court will set the stage going forward in terms of trial date and so forth.”

Jose Sanchez
“So in essence the victory if there is any is minimal. Would that be correct?”

Michel Chebat
“I would not say minimal. I think the fact that UNIBAM has been removed, may be a significant blow to them and to their financial support because I believe I believe it is through UNIBAM that the financial support is coming for the case. Leave has been granted to all parties to file expert evidence within sixty days.”

Jules Vasquez, 7 News
“Now all your experts except for Mister Henry Lawrence have been accepted. Am I right?”

Michel Chebat
“Yes that is correct; that is correct. All of the affidavits filed on behalf of the Church interested parties have been accepted by the Court except for Mister Lawrence’s.”

In January, attorney for UNIBAM, Lisa Shoman said that it really didn’t matter whether UNIBAM survived as an applicant, because the case would go on. She said, “I rather suspect that at this point, really doesn’t matter how the judge rules and there may very well be an appeal in either case… We’d like to get the matter before the courts; so that we have several options open and we will look at them when that arises.”

Caleb Orozco and UNIBAM issued a press release this evening on the court ruling in Orozco pretrial hearing. In the Caleb Orozco and UNIBAM versus The Attorney General of Belize litigation, the second claimant, UNIBAM was removed. Caleb Orozco, the first claimant, maintains standing under the Constitution of Belize and according to the release “will continue to pursue the case.”  The release went on to say that, “It also provided for reports to be filed by various expert witnesses on behalf of Orozco and various interested parties. It is expected that the matter will proceed to be determined on the merits once those expert reports are filed.” It went on to say that “Section 53 criminalizes consensual sexual activities between adults that amount to ‘carnal intercourse against the order of nature’, including between men and women. This case is focused on consensual sexual activities between adults. It does not seek to ‘decriminalize’ coerced sexual activities or pedophilia.” Orozco and UNIBAM are represented by a team of regional and local lawyers, including lead counsel Christopher Hamel-Smith, Lisa Shoman and Simeon Samson. The regional team comprises of the Faculty of Law UWI Rights Advocacy Project (URAP).