There has been a lot of debate about the exclusion of discrimination on the basis of sexual orientation from the government’s new Equal Opportunities Bill. Today, I wish to quote what the Court of Appeal said via the judgment of Justice of Appeal Archie (with whom the CJ Sat Sharma and Mendonce JA agreed), in the constitutional motion that discussed the constitutionality of the old law that was declared unconstitutional.
In Civil Appeal No 64 of 2004, the court said:
41. This (homosexuality) may not be a fact that is palatable to most persons in Trinidad and Tobago where homosexual acts are generally disapproval and are still subject to criminal sanction, but orientation or preference is not the same as behaviour. I say this with the greatest of deference to the learned trial judge who undertook a very detailed and sensitive analysis of this point. It is not a crime to have a homosexual or lesbian orientation. In fact there is no evidence, at least in this case, that one can choose an orientation although there are those who argue that the sex towards which one’s romantic or sexual desires are focused is more a matter of ‘choice’ or ‘preference’.
42. It is not for this court to resolve that debate, but it is axiomatic that all legislation has to be construed and applied so as to remain in conformity with the Constitution and in particular the guaranteed rights to equality of treatment and equality before the law under section 4 of the Constitution. To the extent that the EOA is inconsistent with the Constitution it is void. In respect of the exercise of statutory powers, the authorities are clear that, in the absence of some compelling justification, it is unreasonable for a decision-maker to reach a decision that contravenes or might contravene fundamental rights. Similarly, any law that is on its face discriminatory has to be justified on the basis of some reasonable distinction between those who are differently treated, otherwise it offends against section 5 of the Constitution. Sexual ‘preference’ or ‘orientation’ cannot, by itself, afford such a distinction. In any event, how does one determine such a thing unless it is self-confessed? It is a subjective distinction based on prejudice and stereotyping with no countervailing factors to justify it.
43. The effect of specifically excluding a particular category of persons, on the ground of sexual orientation, from the protection afforded by the EOA to others, is to deny them a fundamental right on a basis analogous to one of the grounds enumerated under section 4 of the Constitution (i.e. ‘sex’). It is a denial of the protection of the law and of equality of treatment under the law. The flaw in the appellant’s argument lies in the conflation of orientation with actions. It is revealed in the reasons of the trial judge in the following passage.
“Legislative intent and policy in Trinidad and Tobago, unlike in Canada and in the U.K., is to continue to treat homosexuality as a very serious criminal offence and it would be contrary to public policy to vest rights in individuals which stem from their condonation and practice of what the legislature has deemed to be serious criminal offences…”
It is a fallacy to assert that any real or claimed rights may stem from one’s sexual orientation. No one can seek special protection on the basis of his orientation. The fundamental rights are aptly so called because they arise from our inherent dignity and value as human beings.
44. In treating with the arguments in this way, it should not be assumed that I am accepting without question the proposition that it is justifiable for anyone, and more particularly for the State, to discriminate against anyone in relation ton employment, education or the provision of goods and services purely on the basis that they have committed a criminal act, to wit, a homosexual act! It would be double punishment to deny a person access to the things enjoyed by other members if the community in addition to the severe criminal sanctions that his behaviour would attract. The EOA is invidious because in respect of criminal behaviour, it is generally accepted that once one pays one’s debt to society, it is over.
45. While it is understandable that a conviction or even an orientation may be a relevant consideration for certain types of employment, the general nature of the discrimination that the EOA permits is unjustified and unconstitutional.”
Why is the present administration repeating the mistake of the UNC administration? The Act was supposed to be ‘born again’.