Discrimination Endures: How the Caribbean Court of Justice Let Homophobic Laws Stand
June 17, 2016
By Seth Earn, Legal Advisor, Global Advocacy
The June 10th ruling by the Caribbean Court of Justice (the “CCJ” or, the “Court”) on the question of whether the Immigration Acts of Belize and the Republic of Trinidad and Tobago discriminate against homosexuals and violate international law obligations, managed to please and dismay activists (see AIDS-Free World’s Press Statement). Using startling leaps in logic, the five-judge bench endeavored to have it both ways: affirm the rights of homosexuals but allow homophobic laws to stand. It was a ruthlessly practical decision, and one that ignored the devastating impact of discriminatory laws, whether or not they are enforced.
The judgment came after nearly three years of work by AIDS-Free World and the claimant, Maurice Tomlinson, who was AIDS-Free World’s Legal Advisor for Marginalized Populations when he opened the claim. In his application, Mr. Tomlinson contended that the Immigration Acts of Trinidad and Tobago and Belize, which contain language prohibiting entry of non-national homosexuals, constituted violations of the Revised Treaty of Chaguaramas (the “Treaty”), which provides for the free movement of nationals within the Caribbean community (known as CARICOM, or the “Community”). A factor in Mr. Tomlinson’s claim, also a key part of the Court’s analysis, was that he had never actually been barred from either country. When he had travelled to both, he had not been asked for, nor did he provide, any information about his sexual orientation; neither had he experienced any problems at the ports of entry. But after learning about the relevant provisions of the countries’ respective Immigration Acts, Mr. Tomlinson submitted to the Court that maintaining an express prohibition on entry of homosexuals in their Immigration Acts constituted a violation of both governments’ Treaty obligations, and prejudiced the enjoyment of Mr. Tomlinson’s Community rights by restraining him from visiting either country without breaking the law.
As an overall statement of the rights of LGBT, this case does represent some progress. Both States agreed, on the record, that Mr. Tomlinson, and indeed all LGBT persons, have the right to enter their territories. Neither State argued that homosexuality constitutes a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” (Para. 14), which would have allowed an exception to their Treaty obligations. And the CCJ affirmed that all CARICOM nationals have the right of free entry into CARICOM countries, upholding a 2013 ruling known as the “Myrie” decision. The Court stated, “In essence, therefore, homosexual CARICOM nationals have a right to freedom of movement on the same terms as any other CARICOM national and both Belize and Trinidad and Tobago agree that this is so.” (Para. 21). Given this unanimous acceptance of the rights of homosexuals to travel freely between CARICOM countries, the failure to strike down the offending laws, and reject Mr. Tomlinson’s claim, was especially surprising.
The Court’s judgment largely aligned with each State’s defense: Each claimed that these laws were not being enforced, and Belize additionally argued that the law in question did not apply to Mr. Tomlinson. Both therefore argued that Mr. Tomlinson’s rights were not being infringed upon. Ultimately the Court agreed, but its analysis left plenty of room for confusion. It is worth taking each country’s main arguments in turn.
Section 5 of the Immigration Act of Belize states:
(1) Subject to section 2(3), the following persons are prohibited immigrants –
(e) any prostitute or homosexual or any person who may be living on or receiving or may have been living on or receiving the proceeds of prostitution or homosexual behaviour;
Belize submitted that the phrase “living on or receiving the proceeds of prostitution or homosexual behaviour” qualifies the meaning of “prostitutes” and “homosexuals”. In other words, they argued that only homosexuals profiting from prostitution or homosexual behaviour would be barred entry. Mr. Tomlinson’s team argued that this analysis defies the plain reading of the law, which clearly creates three categories: prostitutes; homosexuals; and those profiting from proceeds of prostitution or homosexual behaviour.
Mr. Tomlinson’s argument certainly seems more likely. After all, if Section 5(1)(e) was truly meant to apply only to “any person” profiting from prostitution or homosexual behaviour, why list prostitutes and homosexuals at all? They would clearly be covered by the catch-all of “any person”, making the first two categories redundant. The Court appeared ready to disagree with Belize, writing “While it is true that a literal construction of Section 5(1)(e) […] seems to favour the interpretation contended by Tomlinson…”, but the Court went on, inexplicably, to state “…the Court has no hesitation in stating that the interpretation suggested by Belize is the more plausible one.” (Para. 33)
More plausible? The Court made this determination without any apparent effort to examine legislative history, nor to question what was meant by “profiting from homosexual behavior.” Instead, the Court looked to the Constitution of Belize, which guarantees every person in Belize the right to recognition of his or her human dignity, in order to make the determination that the law in question must be interpreted to conform with this recognition of human rights. The Court also relied on Belize’s Interpretation Act, which states that when interpreting any national law, regard must be given to the Treaty and any other Community instrument issued under the Treaty.
It is important to reiterate the confounding logic used by the Court: While a literal construction of Section 5(1)(e) would specifically include homosexuals as persons barred from entry, the Court determined that Belize’s interpretation is more plausible, since it conforms to Belize’s obligations under the Treaty. Explained another way: the law does not violate the treaty because we should interpret it so as not to violate the treaty. An alternative, and arguably more plausible conclusion—that Belize must adhere to its Treaty obligations, and therefore the law should be struck down—appears not to have been considered. If it wasn’t previously clear, it is now: the CCJ answers to CARICOM governments, not the other way around.
Turning now to Trinidad and Tobago, its Immigration Act reads:
Section 8 of the Immigration Act of Trinidad and Tobago:
(1) Except as provided in subsection (2) entry into Trinidad and Tobago of the persons described in this subsection, other than citizens and, subject to section 7(2), residents, is prohibited, namely –
(e) prostitutes, homosexuals or persons living on the earnings of prostitutes or homosexuals, or persons reasonably suspected as coming to Trinidad and Tobago for these or any other immoral purposes.
Since the Trinidad and Tobago law inarguably applies to Mr. Tomlinson, the Court was forced to address the issue of the law’s enforcement. The government contended that since it was not enforcing the law, and Mr. Tomlinson had never been denied entry, he could not have suffered prejudice.
Unfortunately, the Court failed to address the fundamental question of whether unenforced laws could cause injury. There is literature that answers this question affirmatively. For instance, anti-sodomy laws in the United States were often unenforced, but these nominally unenforced laws still created a criminal class, and stigmatized LGBT. Allowing discriminatory laws to stand has a pernicious impact both on the psyche of those covered by the law, and on the culture’s attitudes towards them. The immigration acts of both Belize and Trinidad and Tobago also ban persons with disabilities from entry, using particularly odious and offensive phrasing: “any idiot or any person who is insane or mentally deficient or any person who is deaf and dumb or deaf and blind, or dumb and blind” or “persons who are dumb, blind or otherwise physically defective, or physically handicapped, which might endanger their ability to earn a livelihood, or render them likely to becomes charges on public funds.” Whether or not such laws are enforced, it is evident that simply allowing them to stand as part of a national law has a negative impact on homosexuals and persons with disabilities.
Belize and Trinidad and Tobago ignored this potential impact, claiming that there can be no prejudice suffered because no homosexuals are barred from entry. They could not, however, point to official rules or written administrative guidance provided to their immigration officers that demonstrated their governments’ commitments to not enforcing these laws. Instead, Trinidad and Tobago relied on the testimony of its Acting Chief Immigration Officer, who stated that, “Nowhere during the training period or at any time is an Immigration Officer trained to identify homosexuals[.]”(Para 50). He further stated, “There are inherent practical challenges in making a determination of the sexual orientation of a person entering the country and for this reason there is not now any standard operating procedures or policies geared towards identifying someone who is homosexual and attempting to enter our borders”. He did admit, however, that if an individual “shows proof that he is a homosexual” then the issue moves up the chain of command. But note what he did not say: He did not say what actually happens when the issue moves up the chain of command. He did not say that an individual who self-identifies as homosexual would be admitted entry. He did not say that he had received orders to ignore the ban on homosexuals. And he did not say that immigration officers were obliged to follow the Treaty and freely admit all CARICOM nationals.
The Court did recognize the ad hoc nature of the polices, noting that “there was no written policy on how to deal with homosexual immigrants” (Para. 52). And without these written policies, Mr. Tomlinson contended, there is a genuine legal uncertainty about what would happen if he, a well-known homosexual, presents at immigration in Trinidad and Tobago, since that immigration officer would be under a duty to apply the law and bar him from entry.
The Court’s response? In light of Trinidad and Tobago’s Treaty obligations, it would be “fanciful to expect national courts would hold immigration officers who admit known homosexuals […] in breach of duty” (Para. 54). In addition, since Trinidad and Tobago have enacted other legislation prohibiting the extradition of persons who might be discriminated against on the basis of gender and sexual orientation, the Court views this as evidence of a lack of a homophobic approach to foreigners by the State (Paras. 45 and 54), notwithstanding the absence of any written policies confirming this position.
And with that, the Court concluded that Mr. Tomlinson failed to show that he has “been prejudiced in respect of the enjoyment of [his] right”. Then, in what feels like an effort to regain its credibility, the Court writes that “it is not to be taken as condoning the indefinite retention on the statute book of a national law which in appearance seems to conflict with obligations under Community law.” (Para 56). Stated another way: The Court recognizes that the immigration acts conflict with the Treaty, but they don’t view this as infringing on Mr. Tomlinson’s rights. Instead, since both States have other laws that aren’t discriminatory, he should trust that they will ignore the laws on their books and admit him. All homosexuals, and one assumes all persons with disabilities as well, should therefore be unconcerned if spiteful, discriminatory laws remain that specifically target them, because the government has stated (but not officially) that they won’t bother to enforce them. It seems like very cold comfort.
Where does this decision leave us? The CCJ allowed the laws to stand, apparently because they chose to interpret national laws as conforming with Treaty obligations, rather than risk the wrath of States by requiring that the offending laws be struck down. What would otherwise be self-evident violations of the Treaty, are instead deemed to be unenforced, inapplicable, or both, so that Belize and Trinidad and Tobago can leave them on the books in perpetuity. Homosexuals are simply left to hope that these laws won’t be enforced at the whim of a new government, or perhaps by a homophobic immigration officer.
As stated at the outset, it is a positive sign that the CCJ, as well as Belize and Trinidad and Tobago, acknowledged the equal rights of homosexuals to freely move within the CARICOM region. But their failure to see that discriminatory laws, whether enforced or not, can have profoundly negative effects on those targeted by the laws is severely disappointing.
Only by amending these laws can each country truly demonstrate its commitment to human rights. The CCJ missed its opportunity, but that doesn’t mean that the governments of Trinidad and Tobago and of Belize can’t rise to the occasion.
 See e.g. Leslie, Christopher R., Creating Criminals: The Injuries Inflicted by ‘Unenforced’ Sodomy Laws, 35 Harvard Civil Rights-Civil Liberties Law Review 103 (2000). [Link]
 Immigration Act of Belize, Section 5(1)(b)
 Immigration Act of Trinidad and Tobago, Section 8(1)(c).