1 min

Why LGBT Bajans can’t sue the government to end anti-gay laws

This one clause makes it nearly impossible to challenge Barbados’ buggery laws

Freundel Stuart, pictured here in Washington in April 2012, told Xtra in September 2016 that his country's buggery laws were the same-sex equivalent of rape laws. Credit: OEA - OAS/Flickr Creative Commons

Barbados, like many other English-speaking Caribbean countries, continues to criminalize homosexuality through buggery and sodomy laws. These laws, which were instituted by colonial British governments, continue to be challenged throughout the region.

The Bahamas decriminalized gay sex in private in 1991 through legislation. Last year, Belize’s top court struck down the country’s sodomy law for violating the right to privacy, equality and freedom of expression. Similar legal challenges have been launched in Jamaica and in Trinidad and Tobago.

But the Barbadian constitution makes it essentially impossible for citizens to challenge the buggery law through the courts.

When Barbados became independent in 1966, a “savings” clause was included in the new constitution that saved any pre-independence laws from judicial review. In other words, if a law was in place before 1966, citizens can’t challenge it in the courts.

“The whole purpose of the savings law was they thought there was going to be this rush of people litigating everything before the court that was unconstitutional,” says Stefan Newton, a director of Equals Barbados, an LGBT advocacy organization.

But unlike other countries with similar clauses, Barbados never removed it.

“Therefore the law is just there, we can’t fight it,” Newton says. “It’s an unbreakable barrier.”

Barbados is one of a handful of countries that recognizes the jurisdiction of the Inter-American Court of Human Rights. In 2007, the court found that the death penalty, which was similarly saved from constitutional challenge, violated the right to life.

The Barbadian government pledged to comply with the ruling and scrap the mandatory death penalty as well as remove the savings clause from the constitution. While they did the former, the latter never happened.

“There seems to be no political will on the part of this current administration to uphold their international obligations or to affect rights in the constitution by removing the savings law clause,” Newton says.

So now, LGBT Bajans are stuck. A challenge could be made to the Inter-American Court, but there’s no guarantee that Barbados would comply.

“There is the complicating factor of finding a complainant in a small society like Barbados,” says Maurice Tomlinson, a Jamaican-Canadian attorney who is challenging Jamaica’s anti-gay laws in court. 

“If you are a claimant in such a challenge, you will be exposed to backlash, your family would victimized. So people are not likely to come forward to challenge it.”