Tolerance Ad case the Final Day – Tomlinson v TVJ, CVM and PBCJ

On the final day of the historic trial otherwise known as the tolerance ad trial a packed courtroom in downtown Kingston at the Justice Square grounds of the Supreme Court saw arguments from the lawyers representing CVM TV finalizing their submissions, the court indicated that a ruling will not be handed down before the end of this term by the end of July.

All parties accept that the claimant Maurice Tomlinson has a constitutional right to freedom of expression freedom to disseminate information that’s what the charter of rights provides where they differ is on whether that right prevails in this case Mr Tomlinson’s lawyer Lord Anthony Gifford has been arguing that his client should prevail given the power and reach of the free to air television station making them the only viable channel to reach a large chunk of the television audience but the media houses have been maintaining that Mr Tomlinson’s rights cannot trump their rights to control the materials they broadcast.

Solicitor General Nicole Foster Pusey (linked allegedly to the anti gay group Lawyers' Christian Fellowship, LCF) while acknowledging that there are competing rights on both sides said the court would have to carry out a balancing exercise in deciding whose right should prevail this is because the case against TVJ, Television Jamaica and CVM TV involves Mr Tomlinson a private individual suing two private entities that is the so called horizontal application of the charter of rights which the Solicitor General said the charter clearly allows.

PBCJ – Public Broadcasting Corporation of Jamaica is a government entity however its restriction of Mr Tomlninson’s rights by not carrying the ad has to meet the constitutional test of what is “demonstrably justifiable in a free and democratic society” it is clear the Solicitor General believes that the PBCJ has met that test since by law the station cannot carry paid ads such as that that has been offered by Mr Tomlinson, Mrs Foster Pusey said in light of this it is hard to see how the station could be said to have breached Mr Tomlinson’s rights.

Earlier today Javed Jaghai Education Officer of JFLAG spoke to platforms and constitutional challenges for minority groups on Nationwide radio's George Davis Live:

the ad in question

We wait as the learned judges Leighton Pusey, Brian Sykes go into deliberations to arrive at a decision.

Mr Tomlinson however being able to speak since the case has ended as comments are not allowed during a trial said "I can't say that I am hundred percent confident that the court will rule in my favour because they're such novel rights being contested and deliberated upon, I also think that the presentations were of such high quality on all sides that it would be impossible to say that one side will prevail based on what was presented and how the judges responded was such a well argued case.

Lawyers had argued that the station should not carry the ad as it may be against their editorial policy he responded:

"They have to get a special license that gives you a particular level of control over access to media it isn't granted to everybody those who have it have a particular level of power and as Justice Pusey commented with great power comes great responsibility." 

"They certainly have a right not to have that done to them" in response to anti gay voices opposing the airing of the ad "what is being portrayed if they were to actually see the ad has nothing of that calibre, it's an ad promoting respect and love for a particular Jamaican who just happens to be gay." 

Meanwhile reparative therapy advocate Reverend Al Miller (the driver in the cartoon above) who despite his own court battle of assisting a known criminal that being now imprisoned Christopher "Dudus" Coke and harbouring a fugitive who was found cross dressed in the Reverend's company to evade local authorities to a foreign state that being the US embassy and his dubious missing gun case the appeal of which he lost in February of this year  has jumped on the bashing bandwaggon claiming if the ad was aired then he and other pastors would strongly object. 

Strange that since the awful murders of four children in less than forty eight hours not a sound of remorse has come from these anti gay and homophobic voices but they are loud when it comes to rights and recognition towards same gender loving people. What moral authority does he have?

previous sentiments some months ago:

Rev Al Miller says gay lobby is using the guise of tolerance to get the nation to accept the “gay lifestyle”

Gleaner link: Reverend Al Miller has been found guilty of negligence resulting in the loss or theft of his licensed firearm.

Peace and tolerance

UPDATE JUNE 3, 2013 the lawyer is contemplating taking the another matter originating in Trinidad and their refusal to allow him entry recently to the Caribbean Court of Justice the CCJ:

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BONUS: discussion on whether Jamaican media is homophobic

UPDATE June 5, 2013
Gleaner EDITORIAL - PBCJ In The Debate For Tolerance

and

Church Stands Resolute Against Buggery Backers says Al Miller ………… Love March Movement Lacks Moral Compass says LGBT voice 

UPDATE June: Another case to watch for June 25, 2013

See more click here

Tolerance Ad case Day 3 – Tomlinson v TVJ, CVM and PBCJ

In day three of the tolerance ad trial in the Supreme Court lawyers representing CVM TV said they have no obligation or duty to air an ad promoting tolerance towards homosexuals they also maintain that their refusal to air an ad did not breach the constitutional rights of gay rights advocate and lawyer Maurice Tomlinson the claimant in this matter. He is suing Television Jamaica, TVJ, CVM TV and PBCJ Public Broadcasting Commission of Jamaica. 

Hugh Small Queen's Council continued his point on the balancing exercise that of the rights of Mr Tomlinson versus those of his client CVM TV to which CMV has a right to freedom of expression, to editorial control to decide what it does and does not air and in what forms. He also referred to the report from the Joint Select Committee on the constitutional reform process that led to the enactment of the Charter of Rights. He noted that in several cases the Committee had used very clear language in indicating the changes that should be made to the constitution, and said this clear language was not used in the legislation. If so, he said, the arguments now being made (over issues like whether the Charter has horizontal application – that is, can be used by one private citizen to sue another for a breach of constitutional rights) would not be necessary.

He referred to a section of the report in which the South African constitution was discussed, as that constitution specifically provides for the role of the courts in developing the common law (law laid down in cases decided by the courts) and noted that the Joint Select Committee expressed the view that it is the prerogative of the legislature to develop the law. This attitude he linked with the outrage from regional governments over the Privy Council’s Pratt and Morgan decision, which held that after five years on death row, death sentences should be commuted to life in prison.

“So in effect we have two constitutional rights brought into competition under the same section of the Charter …if there are competing rights, can this Court make an order that explicitly (abrogates) CVM’s rights?” he asked adding that he could find no precedent for a Court making an order that would infringe the rights of one party.

Mr. Small also submitted that the use of the word “media” in the provision regarding the “right to seek, receive distribute, or disseminate information, opinions or ideas through any media” is not a reference to mass media. The word, he said, is being used as the plural of the word medium meaning any channel which an individual chooses to use, such as the internet.

He continued that the orders Mr Tomlinson is seeking by way of this trial cannot be granted if said orders may infringe on the rights of CVM TV, some concerns pinged to his posture were:

1) The ad could not have been aired as a public service announcement as it did not fit that criteria

2) Concerns about how the public might react based on what the station has since in terms of negative reactions to previously aired materials involving homosexual themes

3) It cannot be said that CVM TV is adverse to or a pre-existing prejudice in airing programs with homosexual themes or discussing similar issues when Mr Tomlinson himself has appeared in some of those programs

4) Ensuring that loss of revenue does not occur due to any backlash from airing materials that may be considered offensive by the public and or airing of content that might impact on said revenue

5) The station satisfies itself that the content to be aired is in keeping with values it holds

6) CVM TV has experiences adverse reactions to previous content aired that had homosexual themes

7) The video could be considered a covert attempt to promote homosexuality and related illegal acts namely buggery

8) The board had a concern that CVM TV maybe viewed as supporting or promoting certain illegal activities which was taken into account in making the decision not to air the video footage

One theme of the day’s proceedings was attorney’s explaining why their respective media houses refuse to carry the controversial ad, Queen Council, QC Donald Smith representing PBCJ said the PBCJ act did not create a right of freedom of expression his junior counsel Daverna Chambers submitted that PBCJ has a duty to disseminate not just ideas and information but ideas and information on matters of general public interest she said the video submitted by Mr Tomlinson is not one of general public interest then she went on to say that a matter of public interest would be a matter in which the public is interested such as the budget debate laughter broke out in the court room.

Justice Pusey suggest she stick with his previous example of boys and girls champs instead, Miss Chambers also pointed out the Public Broadcasting Commission of Jamaica, PBCJ does not have a commercial license, does not take paid advertising and will have no place for a thirty second video earlier CVM TV’s lead counsel Hugh Small had told the court the station was concerned about negative public reaction and also the video could be seen as promoting homosexual practices some of which are illegal in Jamaica. He also noted that CVM TV’s license requires them to operate in the state’s interest and this video could have disturbed the public his junior Jerome Spencer differed from Television Jamaica’s lawyers that the charter of rights does allow private individuals to sue private entities.

“I don’t know how the case for the Claimant proceeds after that, since it is an acknowledgement that PBCJ does not air paid advertisements,” he noted.

His submission was that the PBCJ Act which created the entity did not create any freedom of expression rights.

She referred to the functions of the PBCJ as mandated in the Act, namely that:

4 (2) Without prejudice to the generality of subsection (I), the Corporation shall provide public broadcasting services designed to promote

(a) the encouragement and propagation of positive values and attitudes within the society;

(b) the development of education and training;

(c) the dissemination of news, information and ideas on matters of general public interest;

(d) the vitality of democratic institutions;

(e) the protection of the environment;

V) the development of literary and artistic expression;

(g) the development of culture, human resources and sports;

(h) respect for fundamental rights and freedoms and the responsibilities of the individual to society;

She said that section 4 (2) (c ) has to be read in its entirety, emphasising the requirement that the material must be of general public interest.

She argued that the video did not fall into this category, which she said should be interpreted to mean matters that would interest the public “such as the budget debate.” Laughter broke out in the courtroom, which intensified when Justice Pusey suggested that she stick with his previous example of Champs as a matter in which the public is interested.

Justice Pusey also suggested to Miss Chambers that she re-phrase her submission, although he was actually suggesting a different position from that which she had taken.

“A better formulation of that might be to say that PBCJ has determined that its role is to deal with non-controversial issues” and that the station was “not the place for advocacy,” he said.

Miss Chambers said the video does not fall within the category of a Public Service Announcement, that it does not fall within any of the types of programmes that PBCJ is mandated to air.

“The Claimant concedes that this is not an ad, but it is 30 seconds (long). We don’t do fillers at PBCJ, so where would it fall?” she asked.

Solicitor General Nicole Foster Pusey started her submission and will continue tomorrow her presence is to assist the court via any research information and the legal positions on various issues, she plays no role in siding with any of the parties involved in the trial.

here is the video:

parts taken from Dionne Jackson Miller's blog report (who is employed to the RJR group, owners of TVJ a party in the suit)

more in a discussion on Nationwide radio on private citizens, platforms and constitutional challenges with Education Officer for JFLAG:

Tolerance Ad case - Day 2 - Maurice Tomlinson v TVJ, CVM and PBCJ

also see more details on GLBTQJA as well

Day two in the Supreme Court saw the lawyers representing the stations sought to dismiss the merits of the arguments by the claimant Mr Maurice Tomlinson, the stations have been accused of breaching the constitutional rights of the activist attorney over the refusal to air a commercial promoting tolerance for homosexuals. (see ad below) 

What is being sought:
1) A declaration that in refusing to air the ad the stations had breached Mr Tomlinson's constitutional rights to freedom of speech as well as freedom to disseminate information, opinions or ideas through any media.

2) An order for Television Jamaica TVJ, PBCJ and CVM TV to air the ad in exchange for the standard fee and also damages.

Lord Anthony Gifford wrapped up his submissions that he started yesterday which included precedence set elsewhere in similar cases, he also asked the court to recognise that private media houses do not have total editorial freedom, he said the US supreme court made that clear in their context and he is asking the court to make such a finding on behalf of his claimant in this context, that broadcasters have to operate in the public interest and entities do not have absolute rights. Justice Leighton Pusey asked if that application of that principle in the US is coloured by their doctrine whereby they have had freedom of the press as a specific constitutional right and that the broadcasting industry was developed after that, in our context it is not so. Lord Gifford responded that freedom of expression had always been protected. Broadcasting houses are mandated via their licenses to operate in the public interest as they do so in a particular space i. e. the airwaves. It would be useful therefore for the court to issue guidance as to what principles TV stations should use in deciding to air materials submitted to it.

Are stations obliged to give reasons and so on are to be considered? Justice Pusey had a difficulty with PBCJ component in particular as it is a public entity and how someone is able to get a video aired there. He asked if this ad is allowed to be aired will others also be allowed and the screening processes for same, Lord Gifford suggested that one should look at the terms of reference. 

Television Jamaica's, TVJ attorney Georgia Gibson Henlin addressed the court where she spent more time on two main arguments one of which was that the claimant Maurice Tomlinson has no standing in the matter that is he is not entitled to bring this case before the court she also argued that in any event the Charter of Rights does not allow Mr Tomlinson to sue TVJ a private entity the issue of whether or not a law suit can be brought under the charter of rights without any government involvement is one of the important issues in this case. The vertical application of a challenge was mentioned as usual reason for a constitutional challenge such as this however this action by Tomlinson et al is considered a horizontal application (excluding government) suing another private entity. 

She also claimed that previous tolerance typed programs resulted in acts of violence to persons involved so that form of expression would not be justified. She continued that Mr Tomlinson does not have the right to use TVJ's property to carry his message as the charter does not give him the right to say he can use their facilities, she used a freedom of expression example that persons have a right to freedom of speech but that the individual does not have a right to make a speech in someone's front yard. 

Mrs Gibson Henlin says that case law from other countries with similar constitutions support her contention that the charter of rights does not permit a private citizen to sue another private entity as is being done in this case.

She faced intense questions on this issue from Justice Brian Sykes stating that the charter does not compel the conclusion that some kind of government action is needed before one private citizen can sue another. 

On the issue of Mr Tomlinson's standing Mrs Henlin told the court that Mr Tomlinson is known as a "poser" or "tool" as he does not live here and is being used as a tool by his employer the international organization called AIDSFREEWORLD, she says the ad in question was part of the campaign to target homophobic laws since he himself has suffered no harm because of the ad not being played and because AIDSFREEWORLD is not based in Jamaica the case should not go forward. Mrs Gibson Henlin concluded her submission subsequently that in the case of the right to freedom of expression in particular that of a private citizen cannot sue another private entity, there is no general right of one private person to sue another and must seen on a case by case basis and in this particular case involving freedom of expression there is no such right as under the charter.

They day concluded with lead counsel for CVM TV Mr Hugh Small commencing his arguments. His short introduction dealt with Mr Tomlinson's rights but that the court cannot offer Mr Tomlinson relief as if in doing so not also breach CVM TV's rights as well. Mr Tomlinson therefore cannot assert his rights to the extent that it infringes on his client CVM.

there was a small outdoor stand by the Emancipation Park statue yesterday and TVJ carried the story

below is the original video that was aired for a time and discontinued by the agencies who sponsored it:

here is Mr Tomlinson's ad specific to this case:

Tolerance Ad case - Day 1 - Maurice Tomlinson v TVJ, CVM and PBCJ

The case started in Jamaica’s constitutional court yesterday. Mr. Tomlinson is seeking a declaration that refusing to air an ad promoting tolerance for homosexuals breached his constitution rights to freedom of expression and freedom to distribute or disseminate information, opinions, or ideas through any media; order for TVJ and CVM to air the ad in exchange for the standard fees;
damages.

Here’s a summary of the major issues and proceedings from the first day courtesy of RJR's Dionne JAckson Miller to whom I am grateful:

The 30-second spot, dubbed the “Love and Respect video” by the claimant, and which can be seen here, was shown to the court at the start of the proceedings.

Lord Anthony Gifford, lead counsel for Mr. Tomlinson, instructed by Anika Gray, submitted that the video was dignified and restrained. He said that only a very intolerant person would take exception to it.

He said the language of the new Charter of Rights and Fundamental Freedoms, which only came into effect in 2011, indicated that parliament intended for the rights outlined therein to prevail unless there were limits that could be demonstrably justified in a free and democratic society. NB That issue of what can be "demonstrably justified” is a key element of the Claimant’s arguments, the argument being that the refusal to play the ad was not be demonstrably justified.

Not only were Mr. Tomlinson’s rights limited by the TV stations, Lord Gifford argued, but the limits imposed did not meet the test of that which could be demonstrably justified in a democratic society.

Another important issue is whether the television stations TVJ and CVM, as private entities, are bound by the Charter in this situation. That argument of course does not arise with PBCJ, which is a government entity. This relates to the argument that charter extends horizontally (citizen to citizen) to bind private citizens as well as vertically (government to citizen), that is, binding government.In relation to PBCJ, the claimant is arguing that as a public authority, PBCJ had a duty to uphold the constitution, and that furthermore, the PCJJ Act mandates the agency to broadcast information on matters of general public interest, and to promote respect for human rights.

But it was the status of TVJ and CVM as private entities that attracted a lot of attention from the judges. Here’s a sampling of their questions on the issue.

Justice Sykes: It makes no difference if it is a religious or non-religious broadcaster? Such a broadcaster would be bound to broadcast a message contrary to his principles, that broadcaster can’t object?

Lord Gifford: (He can object) only with good and sufficient reason. The balancing exercise involves balancing of rights, both sides have rights.

Justice Sykes: Are you saying that they (the TV stations) have to contract (with people who want to place ads)?

Lord Gifford: I am saying they may have to contract.

Justice Sykes: Are you saying that private broadcasters have to provide reasons (for their decision not to enter into a contract with someone to place an ad)?

Lord Gifford: This is a constitutional right. If you are going to cut it off, you have to explain why.

Justice Pusey: Then, the right to free speech means that another person doesn't have the right not to speak?

Lord Gifford: Yes, they do.

Justice Pusey: You are using the right as a sword, so an individual becomes an advocate for whatever someone else wants to say.

Lord Gifford: This is a paid advertisement. You are not adopting what they want to say.

Justice Pusey: If I have a radio station to play reggae music, and you have an ad contrary to that, I don’t have the right to say I don’t want your country and western ad?

Gifford: You might have the right to refuse, the balancing exercise might come out differently.

Justice Williams: So freedom to disseminate is also freedom to disseminate it to as many people as possible, for example in prime time (television)?

Lord Gifford: Yes, television is a powerful medium, dissemination in the constitution has a meaning, it turns what might have been a passive right into a positive right.

Lord Gifford argues that CVM and TVJ do have a duty under the Charter of Rights to air the ad. He maintains that in this case the position of TVJ and CVM is virtually indistinguishable from that of state entities, as they command the majority of the free-to-air TV audience, they are operating under a government licenses, and they have been given control over what is a public resource, that is the airwaves.

He argues that in the case of mainstream media, they wield significant power, and raised concerns about them excluding certain areas of public debate.

Justice Pusey: In an open market, the market will punish them.

Lord Gifford.: Not necessarily. Minority views, unpopular views also have to be heard.

Justice Sykes: You are proposing that every refusal (to air an ad) is a restriction (on constitutional rights) and then you have to go through the steps to see if the restriction is permissible?

Lord Gifford: That’s what the constitution says.

There was also quite a bit of discussion about whether the size of the media houses involved mattered or whether the principle as elucidated by Lord Gifford would bind all media houses. He began by arguing that size was important but later conceded that it was not.

One other area of Lord Gifford’s submissions was directed at countering the reasons given by the stations for not airing the ad. (NB - reasons were given at a later date, after discussions with the stations about airing the ad had ceased. The reasons were given in affidavit evidence to the court).

For example, in relation to CVM’s position that the station was concerned that airing the ad would be viewed as an attempt to promote homosexuality, he stated that the ad did not promote homosexuality.

In response to the concern that the ad could be seen as promoting a criminal act (buggery), Lord Gifford submitted that it is not illegal to be a homosexual and also stated that the ad showed an auntie showing love for her nephew, and could not be seen as promoting a criminal act.

He also said that it was “hard to swallow” the argument that the video would cause so much offence that advertising revenue would be affected, especially since the station had aired other programmes about homosexuals.

Today: Lord Gifford will have another half an hour to wrap up his submissions and then the defendants will begin to make their submissions.

Dominican govt says no to changes to buggery laws .......... local homophobes reject "Homophobia"

The Dominica government says it has no intention of changing the present buggery laws even as the advocacy group, Minority Rights Dominica (MiriDom) said it was seeking talks with the authorities on the matter of equal rights.

Prime Minister Roosevelt Skerrit, speaking on the state-owned DBS radio Monday, said his administration’s position on the matter is stated in law “and this matter is still on our books and will remain there for the foreseeable future.”

He added: “I respect the views of this new group. I understand from persons they intend to write to the government. We welcome their writing to government. We welcome meeting them as as a matter of fact. They are citizens of this country and they would like to express their views.

“But one has to look at the broader context of this request and it will be dangerous for the country to move in the direction of repealing laws against buggery,” Skerrit said.

He said that “as it is now anybody who wants to engage in whatever activities can do so in the privacy of his home. But one should not believe that the government is prepared or thinking of wanting to make this a public affair.”

Skerrit said he has not heard “any compelling arguments for it to be repealed and I don’t think any compelling arguments can be made for it to be repealed.”

Spokesman for the group, Daryl Phillip told radio listeners that Dominica’s laws making homosexual acts a criminal offence have fuelled negative perceptions about people engaged in the practice.

“Over the last 20 years, there began to be .... a developing hatred and some physical abuses targeted towards those people and that’s our concern,” Phillip said.

“It is targeting homosexuals,” he said. “It is not about telling people it is okay to go in public and make out. All we want is for that law to be removed and then we can go on an educational drive.”

Earlier this month the group, in a statement, said it was also calling on the Roman Catholic Church to make its position clear on the issue, saying that the buggery laws fuel homophobia in countries where they are still on the law books.

“MiriDom believes that homophobia in Dominica and the rest of the Anglophone Caribbean is fuelled by the existence of laws that make gay sex between consenting adults a criminal act,” it said. It noted that in 2008, the Holy See urged a repeal of anti-buggery laws throughout the world and the position has been ignored by the church in Dominica.

ENDS

Meanwhile in Jamaica the anti gay HOMOPHOBIC group the Jamaica Coalition for a Healthy Society continues to use the trope of the word "Homophobia" in describing their rhetoric as meaning mentally ill when we know the word has long left its clinical origin to come to mean an irrational fear or loathing of homosexual(ity)s, yet if we are to follow the JCHS head Dr Wayne with his intellectual dishonesties with support from soiciologist crack pot Peter Espeut the word originally meant a fear of sameness as they use the etymological ambit to justify their fear and hence hardened positions on homosexuality.

The word has since come to mean the following:

WIKIPEDIA: Homophobia encompasses a range of negative attitudes and feelings toward homosexuality or people who are identified or perceived as being lesbian, gay, bisexual or transgender (LGBT). It can be expressed as antipathy, contempt, prejudice, aversion, or hatred, and may be based on irrational fear.

Although sexual attitudes tracing back to Ancient Greece (8th to 6th centuries BC to the end of antiquity (ca. 600 AD)) have been termed homophobia by scholars, the term itself is relatively new.Coined by George Weinberg, a psychologist, in the 1960s, the term homophobia is a blend of (1) the word homosexual, itself a mix of neo-classical morphemes, and (2) phobia from the Greek φόβος, Phóbos, meaning "fear" or "morbid fear". Weinberg is credited as the first person to have used the term in speech.The word homophobia first appeared in print in an article written for the May 23, 1969, edition of the American tabloid Screw, in which the word was used to refer to heterosexual men's fear that others might think they are gay.

Conceptualizing anti-LGBT prejudice as a social problem worthy of scholarly attention was not new. In 1971, Kenneth Smith was the first person to use homophobia as a personality profile to describe the psychological aversion to homosexuality.Weinberg also used it this way in his 1972 book Society and the Healthy Homosexual, published one year before the American Psychiatric Association voted to remove homosexuality from its list of mental disorders.Weinberg's term became an important tool for gay and lesbian activists, advocates, and their allies. He describes the concept as a medical phobia:
[A] phobia about homosexuals.... It was a fear of homosexuals which seemed to be associated with a fear of contagion, a fear of reducing the things one fought for — home and family. It was a religious fear and it had led to great brutality as fear always does.

In 1982, homophobia was used for the first time in The New York Times to report that the General Synod of the Church of England voted to refuse to condemn homosexuality.

the latest JCHS campaign where the HIV is a gay disease ploy is used to justify their HOMOPHOBIA with foreign studies usually with oversease evangelical support.

Homophobia manifests in different forms, and a number of different types have been postulated, among which are internalized homophobia, social homophobia, emotional homophobia, rationalized homophobia, and others. There were also ideas to classify homophobia, racism, and sexism as an intolerant personality disorder.

Homophobia has never been listed as part of a clinical taxonomy of phobias, neither in Diagnostic and Statistical Manual of Mental Disorders (DSM) or International Statistical Classification of Diseases and Related Health Problems (ICD); homophobia is usually used in a non-clinical sense.

In 1992, the American Psychiatric Association, recognizing the power of the stigma against homosexuality, issued the following statement, reaffirmed by the Board of Trustees, July 2011: "Whereas homosexuality per se implies no impairment in judgement  stability, reliability, or general social or vocational capabilities, the American Psychiatric Association (APA) calls on all international health organizations, psychiatric organizations, and individual psychiatrists in other countries to urge the repeal in their own countries of legislation that penalizes homosexual acts by consenting adults in private. Further, APA calls on these organizations and individuals to do all that is possible to decrease the stigma related to homosexuality wherever and whenever it may occur."

Others in criticizing the etymological issue surrounding the word suggest homosexophobia but it is clear the that modern Pharisees and Sadducees are at work and are getting large financial support from somewhere yet children are hungry, missing and in lock ups with adults and these same voices are silent in that department. Who were Jesus' opponents I ask?

More HERE from Gay Jamaica Watch

Here is a discussion (edited) with Dr Wayne West and Carol Narcisse (public commentator) on the issue

Also see: Jamaica Coalition for a Healthy Society, JCHS continued confusion of paedophilia & consenting homosexuality.

Peace and tolerance

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Kenyan Lawsuit Filed Over Intersex Legal Recognition and Protection from Cosmetic "Treatment"

Kenya's second-ever lawsuit concerning intersex issues has been filed. An intersex individual referred to as Baby A is suing Kenyan authorities for 

1) legal recognition of intersex individuals, and 

2) the right of intersex children to not have cosmetic, "corrective" surgery unless it is court-ordered.

Because Baby A is intersex, this individual doesn't have one of the most basic forms of legal recognition: a birth certificate. At the Kenya National Hospital where Baby A was born, records denote the child's sex with a question mark, instead of an M or an F. As a result of authorities not recording M or F, a birth certificate was never created for Baby A.

Baby A's lawyer, John Chigli notes the damage of never being issued a birth certificate: “The birth certificate is of great legal importance to the life and development of a child given that it is ticket to school admission, issuance of passport, national identity card and employment."

Baby A will be legally denied these opportunities until KNH hospital administrators issue A a birth certificate.

The lawsuit is also seeking to prevent "corrective" surgeries on intersex children unless it is court-ordered. The wording of this portion of the lawsuit is worrisome, in that not all non-consensual "treatments" for intersex children are surgical. Some procedures, like vaginal dilation, are not surgical, but are still cosmetic in nature, and can serve to physically and psychoemotionally harm children that undergo them. I also hope that the lawsuit denotes that corrective surgeries do not just include altering the external genitals, but also the removal of internal sex organs. I think that intersex surgery is still largely equated with external genitals only in popular understanding, but protections against removal of internal sex organs should not be done without the intersex persons's consent, either.

Finally, I am wondering about the phrase "unless it is court-ordered." It seems like this could be a convenient legal loophole, where it could become common practice to just court-order surgery/"treatment" for every intersex person born in Kenya, or actually create new legislation making it legal to perform these treatments, and side-stepping the need to court-order treatment for each individual case. By what standards would one determine whether surgery/"treatment" should be court-ordered? What cases should be court-ordered, and which shouldn't?

I think that more legislation fighting for intersex rights and protection is necessary. I would encourage those filing this lawsuit, however, to consider whether allowing for the possibility of governing bodies to court-order intersex surgery will really be solving the problem, or simply creating more legislation and legal ways to actively change the bodies of intersex individuals without our consent.

I don't want a court system to have any say in what is done to my body. I applaud Baby A's efforts in filing a lawsuit, but hope that in court, what is fought for is intersex individuals' right alone in deciding which of our own body parts we are allowed to keep, and not other authorities who can legally court-order our body parts away without our consent.

We deserve better than that.

Thanks to Full Frontal Activism and Georgiann Davis for alerting me to this case!

The baby was born at KNH on May 3, 2009 with both male and female genitalia.

The hospital officials could not record the sex of the child in question as female or male and ended up putting a question mark as Baby A’s sex.

This entry on the child’s medical record offends the right to legal recognition and erodes dignity and the child’s rights, the court was told.

Baby A has never been issued with a birth certificate, a document that gives legal recognition to an individual.

“The birth certificate is of great legal importance to the life and development of a child given that it is ticket to school admission, issuance of passport, national identity card and employment,” the suit papers filed through lawyer John Chigiti read in part.

And as a result of lack of legal recognition intersexual children live in fear of assault, abuse, inequality, exclusion and without dignity in a legal regime that has nothing for them making it impossible to collate data around them.

Baby A also says intersex children are unable to enjoy all the rights accruing to them as citizens.

Baby A says for intersex children to enjoy rights guaranteed under the constitution to all Kenyans there is need to come up with code or regulations that directly or indirectly govern corrective surgery for intersex children.

The court was told that corrective surgery is intrusive in nature and hence the need for the child’s meaningful participation in decision on what sex should be assigned.

“This calls for child’s meaningful participation in the decision making process and the child’s consent whenever the surgery is not informed by a medical emergency.”

The baby wants the court to allow use of pseudo name in the case and hear it in camera.

Baby A’s case is the second to be filed in the country seeking legal recognition for intersex. The first one was filed by Richard Muasya, whose case was dismissed by a constitutional court.