By Inés M. Pousadela
MONTEVIDEO, Uruguay, May 6 2024 – On 22 April, Dominica’s High Court struck down two sections of the country’s Sexual Offences Act that criminalised consensual same-sex relations, finding them unconstitutional. This made Dominica the sixth country in the Commonwealth Caribbean – and the fourth in the Eastern Caribbean – to decriminalise same-sex relations through the courts, and the first in 2024.
Similar decisions were made in Antigua and Barbuda, St Kitts and Nevis and Barbados in 2022 – but progress then threatened to stall. Change in Dominica revives the hopes of LGBTQI+ activists in the five remaining English-speaking Caribbean states – Grenada, Guyana, Jamaica, St Lucia and St Vincent and the Grenadines – that still criminalise same-sex relations. Sooner than later, one of will be next. A small island has made a big difference.
Winds of change
The criminalisation of consensual gay sex in the Anglophone Caribbean dates back to the British colonial era. All former British colonies in the region inherited identical criminal laws against homosexuality targeting either LGBTQI+ people in general or gay men in particular. They typically retained them after independence and through subsequent criminal law reforms.
That’s what happened in Dominica, which became independent in 1978. Its 1998 Sexual Offences Act retained criminal provisions dating back to the 1860s. Section 16 of that law made sex between adult men, described as ‘buggery’, punishable with up to 10 years’ imprisonment and possible compulsory psychiatric confinement.
The offence listed in section 14, ‘gross indecency’, was initially punishable by up to five years in jail if committed by two same-sex adults. A 2016 amendment increased the penalty to 12 years.
As in other Caribbean countries with similar provisions, prosecutions for these crimes have been rare in recent decades, and have never resulted in a conviction. But they’ve been effective in stigmatising LGBTQI+ people, legitimising social prejudice and hate speech, enabling violence, including by police, obstructing access to essential social services, particularly healthcare, and denying people the full protection of the law.
Change has begun only in the past decade, but it’s been rapid. Bans on same-sex relations were overturned by the courts in Belize in 2016 and Trinidad and Tobago in 2018. More soon followed.
The legal case
In July 2019, an unnamed gay man identified as ‘BG’ filed a legal case challenging sections 14 and 16 of the Sexual Offences Act. The defendants named in the complaint were the Attorney General, the Bishop of Dominica’s capital Roseau, the Anglican Church and the Methodist Church. The Dominica Association of Evangelical Churches was also listed as an interested party.
The lawsuit was supported by Minority Rights Dominica (MiRiDom), the country’s main LGBTQI+ advocacy group, and three international allies: the Canadian HIV/AIDS Legal Network, the University of Toronto’s International Human Rights Program and Lawyers Without Borders. The law was challenged as discriminatory and an enabler of violence against LGBTQI+ people.
The High Court heard the case in September 2022, and on 22 April 2024, Justice Kimberly Cenac-Phulgence issued a ruling setting out the reasons why sections 14 and 16 violated the applicant’s constitutional rights to liberty, freedom of expression and privacy, and were therefore null and void.
The backlash
LGBTQI+ advocates around the world welcomed the court ruling, as did UNAIDS – the United Nations agency leading the global effort to end HIV/AIDS. But resistance wasn’t long in coming.
Religious institutions, which hold a lot of influence in Dominica, were quick to decry gains in LGBTQI+ rights as losses in moral values. The day after the ruling was announced, Dominica’s Catholic Church published a statement reaffirming its position that sex should only take place within a heterosexual marriage and, while expressing compassion towards LGBTQI+ people, reiterated its belief in the centrality of traditional marriage and family. The Seventh-day Adventists expressed alarm about the potential of the court ruling to lead to same-sex unions and marriages. Some faith leaders voiced outright bigoty, with one prominent figure calling sexual acts between persons of the same sex an ‘abomination’.
The road ahead
Having decriminalised same-sex relations, Dominica is now ranked 116th out of 198 countries on Equaldex’s Equality Index, which rates countries according to their LGBTQI+ friendliness. There’s clearly much work to be done. Outstanding issues include protection against discrimination in employment and housing, marriage equality and adoption rights. LGBTQI+ activists will also continue to push for the recognition of non-binary genders, the legalisation of gender change and the prohibition of conversion therapy.
The Equality Index makes clear that, as in all the Caribbean countries that have recently decriminalised same-sex relations, changes to laws remain far ahead of social attitudes, with considerable public homophobia. As the instant conservative reactions to the court ruling suggest, changing laws and policies isn’t nearly enough. Shifting social attitudes must now be a top priority.
Dominican LGBTQI+ activists know this, which is why they’ve been working to challenge prejudice and foster understanding since long before launching their legal challenge – and why they see the court victory as not the end of a journey but a stepping stone to further change.
The challenge for Dominica’s LGBTQI+ civil society is to replace the vicious circle of legal prohibition, which has reinforced social stigma, with a virtuous one in which legal progress normalises the presence and social acceptance of LGBTQI+ people, which in turn enables effective access to legally enshrined rights.
But they’ll take heart from being part of a broader regional and global trend. While working to ensure rights are realised domestically, they’ll also offer a powerful example that change can result to the circa 64 countries around the world that still criminalise gay sex, including the five holdouts in the Commonwealth Caribbean. More progress will come.
Inés M. Pousadela CIVICUS Senior Research Specialist, co-director and writer for CIVICUS Lens and co-author of the State of Civil Society Report.
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