A landmark legal challenge underway in Jamaica could set a precedent for discrimination law in the Caribbean island nation, bypassing politicians who have proven reluctant to take up the cause of LGBT rights in what has been dubbed by some as “the most homophobic nation on earth.”
Jamaican gay activist and lawyer Maurice Tomlinson, who lives with his husband in Toronto, is leading the challenge — one of several cases he is pursuing to enhance LGBT rights throughout the region — which has pitted him against two private broadcasters that refused to air an ad promoting LGBT tolerance.
Tomlinson charges that the refusal is at odds with his right — enshrined in Jamaica’s 2011 constitution — to access the media to promote a political message. The broadcasters allege that airing a message they disagree with would impair their own freedom of speech.
In Jamaica, private citizens can challenge other private citizens for breaches of Charter rights, which leaves the court to rule in cases where individuals’ rights come into conflict.
“You look at the degree of impairment,” Tomlinson says. “The TV stations would lose a bit of their editorial discretion, but at the end of the day they could maintain their editorial autonomy by carrying a disclaimer. My impairment would be absolute because there would be no way to get my message out to the Jamaican people except by using this medium.”
In the tolerance ad, which was produced by the non-profit AIDS-Free World, Tomlinson is shown speaking with his aunt about the difficulty of having his human rights respected in Jamaica. She responds that she doesn’t understand why he’s gay, “but as a Jamaican, I respect you and I love you.”
Tomlinson and AIDS-Free World originally filed the claim against Television Jamaica and CVM Television in 2013, but the trial court denied the claim. In an appeal that started on Feb 1, 2016, and will continue through Feb 4, Tomlinson is arguing that the Court failed to sufficiently consider the role of TV stations in a healthy democracy.
“There’s no other way that you can shift public opinion except by public debate, and in Jamaica the most effective way to provoke debate is through the broadcast medium,” Tomlinson says. “All the television stations need to do is run a disclaimer, just like they would do with a political ad. That would be minimal impairment and they would get their money.”
A final decision is not expected for several months after the case is heard, due to the complexity of the issues being weighed.
Tomlinson also has a constitutional challenge before the court in Jamaica challenging the nation’s buggery law, which criminalizes gay sex. That case is scheduled to be heard Feb 23, just two days before national elections will be held. Tomlinson says that politicians are already using “dog-whistle politics” to gain support from homophobes in the run-up to the vote.
“The minister of finance made this statement that the anti-buggery law will not be reviewed because they’re not going to be bowed to international pressure. That has put it off to the indefinite future,” Tomlinson says. “I fully expect more of this to occur as the election campaign heats up. That is always one way to rally the crowd in Jamaica.”
In another case, Tomlinson is appealing to the Caribbean Court of Justice to end travel bans against LGBT people entering Belize and Trinidad and Tobago.