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Grounds for discrimination

Submitted by unaidsadmin on Fri, 2012-02-03 14:11 - 0 Comments

Young lawyers target T&T’s Equal Opportunity Act

It’s been eleven years. They’ve moved his desk to a lonely corner of the office. Co-workers wipe the phone after he’s been on and lob slurs in his direction. Has he told his supervisors about the situation? He doesn’t have to. They take part.  

It isn’t far-fetched that a Trinidadian would be discriminated against on the basis of (real or perceived) sexual orientation. In a 2009 norms and values study commissioned by the Ministry of Social Development 69 percent of respondents indicated that they did not support equal rights for gays and lesbians. Colin Robinson of the Coalition for the Inclusion of Sexual Orientation (CAISO) says that while discrimination and impunity are commonplace, seeking legal recourse is not.

“Gay and trans people don’t report our discrimination and human rights violations to the authorities, even the worst cases. Because what happens when we do?” he questions. “I’ve heard accounts from men and women ridiculed in courts and police stations when they pressed charges. I’ve interviewed guys who were gang-raped and limped around refusing free medical care. A young person we helped had to be taken to hospital by police after his family beat him savagely; the officers merely warned the relatives and never filed charges.  People are not just afraid of the gossip and the impact on job, family and reputation. We forget that gay people are still criminals in the eyes of the law here. So it’s no surprise we aren’t turning to the law for protection.”

An international mandate to press countries into action on these issues has intensified lately.  In October Commonwealth Secretary General Kamalesh Sharma at the Commonwealth Heads of Government Meeting that “discrimination and criminalisation on grounds of sexual orientation [are] at odds with our values”. Shortly thereafter UK Prime Minister David Cameron threatened to withhold aid from governments that do not reform legislation banning homosexuality. And last week the United States declared that it will use foreign aid and diplomacy to encourage country-level reforms.

“It should never be a crime to be gay,” said Secretary of State, Hilary Clinton.

In Trinidad and Tobago two young attorneys are taking a decidedly different tack. They call it “positive protection”. While many in our region have their eyes trained on our nineteenth century “buggery” laws, “Tell Your Story, TNT” focuses on a relatively recent innovation—our Equal Opportunities Act. That law provides remedies for victims of discrimination, all sorts. Yet it explicitly excludes “sexual preference and orientation” as grounds for protection. The goal is to document enough concrete complaints to make a case—first to the Equal Opportunity Commission (EOC) and then to Parliament—that something needs to be done. Specifically they are looking for instances of discrimination based on sexual orientation or gender expression in the areas of employment, education or public goods and services such as health care or law enforcement. 

“I think when you speak to people one-on-one they can be very open minded,” says Jacqueline Bevilaqua. “We haven’t gotten any negative feedback to the work we’re doing. You might have a personal position but very few people would say that gay, lesbian, bisexual and transgender (GLBT) persons should be denied opportunities or services. That doesn’t make economic sense and sexuality has no bearing on who’s going to be a good employee.”

Tamara Sylvester is optimistic that a legal success could have social change spin-offs.

“If the law explicitly prohibits discrimination in the workplace and schools, people will be forced to get with the program and become sensitised to the issues. We all have our moral beliefs and they vary from one person to the next but our beliefs do not give us a basis to violate other people. It is not about you changing your values,” she submits. “It’s about tolerance.”

From the Caribbean HIV & AIDS Alliance office in Woodbrook the pair has been collecting stories and filling EOC complaint forms. It’s a simple process: contact them and tell your story. Confidentiality is fiercely protected but there have been respondents who want to put everything on public record including their names. The pair says that there is power in sharing human stories. In this instance these stories will crystallise into a case for change.

The project’s approach is new but its core idea isn’t. In 2001 late environmentalist, Professor Julian Kenny, spoke out in Senate about the exclusion of sexual orientation from the Act.   And in a 2006 judgment (Suratt v. AG) Ivor Archie challenged the constitutionality of the EOA and its deliberate attempt to exclude sexual orientation from the protections it offers against discrimination.

“It is a denial of the protection of the law and of equality of treatment under the law,” Archie wrote. “The fundamental rights are aptly so called because they arise from our inherent dignity and value as human beings.”

But is an elected member of parliament going to move on an issue for which he or she does not perceive majority support?

“Should the majority get to determine whether the minority have rights?” Bevilaqua counters. “How is the minority to assert its rights in the scenario? I don’t think it’s necessarily political suicide to include sexual orientation and gender expression as a protected status. A lot of people who might not support what they think of as “gay rights” might support treating all people equally.”

Sylvester studied psychology and mathematics before pursuing law.

“I took up this profession because I want to help people. I have a fundamental interest in anything that uplifts humanity. I’ve spent a lot of time abroad and my experience there with LGBT people as opposed to people here is that they are more open, less closeted. They’re freer to be themselves. When you basically have the government saying it’s okay to discriminate against people on the basis of sexual orientation it’s no wonder people feel the need to suppress who they are and live in the closet. The psychological effects of having to hide your identity are significant. We need to ensure that people feel okay to be themselves,” she said.

Bevilaqua earned the James E Tolan Human Rights Fellowship from the Global Initiative for Sexuality and Human Rights of Heartland Alliance.

“Coming from New York City I feel really grateful to people who came before me… people who worked for racial justice and gender equality. We still have a lot of work to be done in a lot of different spheres but by and large as long as you are not hurting anyone you can be who you want to be. I felt grateful for what so many people have done for me to make the world a better place so I’m paying it forward,” she says.  “I’ve come here to help to spread tolerance rather than hate.”

To contact Tell Your Story, TnT please call +868 797-5787 or +868 623 9714 or email them at tellyourstorytnt@gmail.com

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The UNAIDS team offers the Caribbean the broad expertise of cosponsors and other UN organisations in areas such as program development and management, women and child health, education, legal networking, community care initiatives and resource mobilisation. The goal is an expanded response to HIV in the region with the world’s second highest HIV prevalence.