Saturday, January 20, 2018

Let reason guide Gender Policy debate

Trinidad and Tobago is an emotion-driven society. We need look no further than the national reaction to Dr Wayne Kulbalsingh's recent hunger strike. There is even empirical evidence of this premise in the form of a recent Gallop poll demonstrating that the Americas is an "emotional" region. This feature of our national existence is a double-edged sword.

On the one hand, we are generally warm and friendly. On the other hand, our national policies are rarely the product of critical analysis.

The recent announcement that the National Gender Policy will focus on the elimination of discrimination against homosexuals, lesbians and bisexuals will no doubt produce massive public debate. The issue itself is a highly emotive one. Most of the responses will be couched in the form of emotional reasoning. Before the inevitable avalanche of public opinion, it would be wise to pause and take a moment for sober reflection.

The most crucial observation is that the National Gender Policy does not have the force of law. It will create no substantive legal rights for homosexuals, lesbians and bisexuals.

Minister Ramdial is quoted as saying that "the gender policy has been drafted from a human-rights perspective." However one of the criticisms of human rights law is its non-coercive nature. Widespread legislative action will be needed to ensure that the principles of non-discrimination contained in the policy are translated into the substantive law, analogous to the process of incorporation whereby international treaties are given legal force.

Amendments will need to be tabled to the Constitution and the Equal Opportunity Act, neither of which protect against discrimination on the basis of sexual orientation. Key provisions in the Sexual Offences Act which criminalise sodomy and the Immigration Act, pursuant to which persons can be denied entry into Trinidad and Tobago based on their sexual persuasion, will have to be abolished.

Even if these amendments come to fruition, significant problems abound. The Domestic Violence Act does not expressly protect persons who are not in heterosexual relationships. The Cohabitational Relationships Act similarly applies solely to same-sex couples. Our succession laws do not provide a vehicle for a partner of the same-sex to inherit on intestacy.

In light of the foregoing, legitimate questions ought to be raised about the current approach to the issue of homosexuality and equality. Crucial issues have not been analysed. Should we adopt a gradualist approach or holistic systemic reform? Gradualism would help avoid massive resistance, akin to the public backlash experienced in the United States in the wake of the de-segregation of public schools in Brown v Board of Education.

A holistic approach would ensure that we create a legal structure that provides adequate protection across a broad spectrum for all persons regardless of sexual orientation.

What theory of equality should our laws reflect? Formal equality dictates that all persons should be treated equally, whereas substantive equality posits that persons who have been subjected to historic discrimination should be given a preferred position in the hierarchical structure of rights and freedoms.

Given the widespread cultural similarities in the Caribbean to the issue of homosexuality, is there a role for Caricom to play in this process? What is our position on the intersection of law and morality? Policy decisions on gay rights ought not to be made on the basis of insufficient information or myopic outlooks. The task falls to our notable academics and leaders across all spheres of society to take up the gauntlet. Only then will we break the mould whereby critical decisions are made in a vacuum, devoid of reasoned, intelligent analysis.

Ria Mohammed Davidson

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