Feature story

Justice is never given, it is won: How Eastern Caribbean activists developed the successful strategy to defeat the laws which criminalised LGBT people.

31 August 2022

For almost 150 years, to be gay in St. Kitts and Nevis was to be criminalised.  What the colonial authorities inhumanely labelled “the abominable crime of buggery” has been part of law, with the effect of punishing, stigmatising, discriminating against and excluding LGBT people for who they are. 

This week the Caribbean nation’s High Court ruled that provisions which criminalize private sexual acts between same-sex partners were unconstitutional; that criminalisation became, immediately, null and void. 

Attorney Nadia Chiesa noted that the St. Kitts and Nevis case set out several constitutional rights contravened by the criminal provisions: the rights to privacy, personal liberty, freedom from discrimination and freedom of expression.  

“The evidence dealt not just with the legal arguments, but the myriad of ways in which the continued existence of these laws affects persons in the community in all of aspects of their lives,” Ms. Chiesa explained.  

The claimants’ evidence spoke to issues commonly affecting members of the LGBT community in St.  Kitts and Nevis.  At the top of the list was “a tendency to avoid sexual health services, including being tested for HIV, for fear of being stigmatized by the health care providers or wider society”.  

“We have had a situation where although HIV programs ought to be focused on key populations including men who have sex with men, there has been either a policy by certain governments not to pursue those approaches, or de facto non action on the part of state authorities responsible for providing services to these communities. That bit of evidence was very important in the case to buttress the legal arguments around discrimination,” explained Veronica Cenac, a St. Lucian attorney and one of the initiative’s leading strategists.   

Now, with the law changed, comes the opportunity to improve a whole range of services. The legal change will save and change lives.  

As activists celebrate, they are also highlighting the importance of reflecting and learning on how success was won, to help inform the efforts of others and to provide insights on the next steps needed in the journey to end stigma and discrimination.  

The strategy that would finally topple the 19th century law was birthed seven years ago. Through this initiative, there was also a successful challenge of the “buggery” law in Antigua and Barbuda last month. Similar cases have been launched in Barbados, Grenada and St. Lucia.  

The approach was inspired by recent Caribbean examples of using judicial review to overturn laws which criminalized lesbian, gay, bisexual and transgender (LGBT) people in Belize, Guyana and Trinidad and Tobago. But, led by the Eastern Caribbean Alliance for Diversity and Equality (ECADE), a consortium of attorneys, civil society groups and human rights trusts refined a distinct plan for taking aim at discriminatory laws in the Eastern Caribbean. 

The ECADE process had three key features.  

First, rather than focus on creating a high profile for the cases in the news, communication efforts were focused on raising awareness and harnessing the wisdom within communities. The team worked to identify strengths and allies, while planning to address potential pitfalls. 

Secondly, the strategy was fundamentally based on institutional strengthening. 

“It was not just about launching cases,” said ECADE Executive Director, Kenita Placide. “It was about building community.”  

One of the claimants in the case was the non-governmental organization St. Kitts and Nevis Alliance for Equality (SKNAFE). SKNAFE Chair, Tynetta McKoy, revealed that the organization is poised to support the next stage of the work: increased public engagement.  

“The majority of community members… know this is a first step and there is a lot of work still to be done around education and public awareness. Coming from the community level, this is a steppingstone. We are ready to keep on going,” she said. 

The third prong of the strategy was the security of litigants and the wider community. ECADE noted the importance of thinking about claimants beyond the case and ensuring they could navigate their regular lives safely, particularly when their names and faces were circulating in the media.  

ECADE highlighted their appreciation for inputs from the Human Dignity Trust, Kaleidoscope Trust, Canadian HIV/AIDS Legal Network, University of the West Indies Rights Advocacy Project (URAP) and Caribbean Vulnerable Communities (CVC) Coalition, amongst others, for contributing in various ways. These included supporting foundational research and offering strategic guidance. 

Ms. Cenac noted that a subsequent phase of the strategy would be focused on encouraging governments to enact protective legislation. This would ensure that the LGBT community and other vulnerable groups are covered by the legal safeguards put in place for other citizens.     

Lead attorney, E. Anthony Ross Q.C., called for Caribbean governments to act proactively to ensure their laws uphold citizens’ constitutionally guaranteed rights. 

Nothing new was created here [in this legal judgement ]. The constitution specifically gives those rights. Attorneys-General should take note. It’s time to look over all laws and bring these discriminatory laws in line.” 

HIV and gay men and who have sex with other men