LEGAL INFORMATION
National law
The Constitution of Barbados guarantees fundamental individual rights and protects against discrimination on the grounds of race, place of origin, political opinions, colour, creed or sex (Sections 11 and 23). It does not specifically provide protection from discrimination on the grounds of sexual orientation, gender identity or HIV status.
The criminalisation of same-sex sexual activity was originally imposed on Barbados during the colonial period by the 1861 Offences to the Person Act and the 1885 Criminal Law Amendment Act. The text of these laws survives virtually unchanged in the Sexual Offences Act 1992 which is currently in force. According to the Act, ‘buggery’ is an offence that carries a maximum sentence of life imprisonment (Section 9), and ‘gross indecency’ practised between two consenting adults is punishable by a prison sentence of up to 10 years (Section 12). Gross indecency is defined as ‘an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire’. While the definition of ‘gross indecency’ in Section 12 of the Sexual Offence Act does not specifically refer to same-sex activity, its vagueness and its reference to ‘unnatural’ acts allow it to be used to criminalise LGBTI people.
Barbadian law does not prohibit discrimination against a person based on real or perceived sexual orientation, gender identity or HIV status in employment, housing, education, or health care.
International law
Barbados has signed and ratified the International Covenant on Civil and Political Rights. Article 17 of the ICCPR protects individual privacy, including private consensual sexual activity between adults, and protects individuals from discrimination based on fundamental characteristics. The list of relevant characteristics is non-exhaustive and includes ‘other status’, which has been clarified to include sexual orientation by subsequent UN actions and pronouncements.
Following the 2013 Universal Periodic Review of Barbados, the United Nations High Commissioner for Human Rights noted that domestic legislation does not conform to the norms of international human rights law. The government was recommended to strengthen measures to eliminate any discriminatory treatment based on sexual orientation; repeal laws that criminalize consensual same-sex adult sexual relations; and establish policies to combat discrimination, prejudice and violence based on sexual orientation or gender identity. The government rejected these recommendations on the basis that it had ‘no political mandate to do so and in fact, significant sections of the community are opposed to such decriminalization’. Furthermore, the government claimed that since persons who engage in same-sex sexual activity are unlikely to report their sexual partners to the police, there is no likelihood of prosecutions under the law and therefore no need for reform (see ILGA Report 2016). The government did, however, accept the recommendation to implement measures to protect the LGBT population from harassment, discrimination and violence.
CASE LAW
Watson v. The U.S.A., Department of Homeland Security, (2015)
A transgender Barbadian woman was granted ‘deferral of removal’ protection, a status that allows undocumented migrants to remain and work in the USA. The Department of Homeland Security accepted that she would have been likely to face torture or inhumane treatment because of her gender identity if she was deported to Barbados. Further information here.
Hunte v. The Queen, Supreme Court of Judicature, Barbados (2002)
The supreme court overruled the conviction of a man who was prosecuted under the ‘buggery’ law. While the outcome was favourable, the initial prosecution shows that the law continues to carry the potential for criminalizing homosexuality in Barbados.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
The impact of domestic legislation
Creation of a hostile environment for LGBTI persons
There were no reported cases of either the ‘buggery’ law or the ‘gross indecency’ law being enforced in 2015 (see the US Department of State Country Report on Human Rights Practices in Barbados). A 2010 report authored by a range of Caribbean LGBTI organisations, states that same-sex activity between consenting adults has not been prosecuted in the region ‘in recent time’, but these laws create an environment in which human rights violations against LGBTI communities occur.
According to two reports by the Inter-American Commission for Human Rights (of 2014 and 2013), the criminalisation of same-sex activity in 11 American countries, including Barbados, impacts the defence of individual’s human rights, legitimizing social prejudice, discrimination and violence, and restricting access to justice. LGBTI advocates in the Caribbean are reportedly viewed as ‘self-avowed criminals.’
Underreporting
Many victims will not report crimes out of the fear that they themselves will be prosecuted under existing laws, or that they will not receive police protection from reprisals. Underreporting of crimes against LGBTI persons contributes to a lack of evidence concerning the scale of human rights abuses and the perception that there are few such incidents.
A 2010 report compiled by a number of LGBTI advocacy groups in the CARICOM, identified a reluctance to report human rights abuses. Several Barbadian witnesses withdrew their testimonies from the report even though their identities were to be concealed, reflecting fears of reprisals and the difficulty of achieving anonymity in small Caribbean island societies. In June 2014 Donnya Piggott, Director of Barbados Gays, Lesbians and All-Sexuals against Discrimination (B-GLAD), stated that a recent study on discrimination against LGBTI people in Barbados found more than 60 unreported instances of discrimination based on sexual orientation in the preceding five years. (See 2015 Human Dignity Trust Barbados Country Report)
Reluctance to access health services
UNAIDS reports that Caribbean laws criminalising homosexuality inhibit efforts to control the spread of HIV, by discouraging men from accessing HIV treatment, counselling or education services. ‘In most of the countries in the Caribbean that don’t have repressive laws, HIV prevalence is between 1% and 8% among men who have sex with men,’ said UNAIDS Executive Director Michel Sidibé. ‘This contrasts sharply with a range of between 20% and 32% in countries which outlaw sex between men.’
Public attitudes to LGBTI groups
Discrimination against lesbian, gay, bisexual, transgender and intersex individuals is identified as one of the most serious human rights issues facing Barbados by the US Department of State’s 2015 Country Report.
The State Of LGBT Barbados: A Brief Overview is a report by B-GLAD that is described in detail in a 2014 article in Barbados Today. The report concerns the ‘deep-rooted oppression’ faced by LGBTI persons in Barbados and documents incidents going back to 2002 including arson, rape, homelessness, physical and verbal abuse, depression and attempted suicide. The report explains that discrimination and stigma often take the forms of property damage, ostracism and verbal abuse, unjustified denial of employment or housing, or rejection and abandonment by family, friends and wider society. The article quotes Donya Piggot, who identifies those who do not conform to the ‘gender norm’, including ‘very effeminate men, transgender women and butch lesbians’ as ‘tremendously at risk’. Furthermore, young people and those from lower socio-economic backgrounds are particularly vulnerable to homophobia and transphobia, and many assaults occur in domestic settings. According to the study, most members of the LGBT community do not report matters to the police out of fear of ‘negative repercussions or facing ridicule’.
In May 2016, a Barbadian newspaper was condemned after publishing an article that appeared to trivialise an incident of sexual assault against an LGBTI woman.
A 2013 survey by Caribbean Development Research Services asked a random sample of 830 Barbadians about their attitudes towards homosexuals. The results are analysed in They called it the ‘abominable crime’: an analysis of heterosexual support for anti-gay laws in Barbados, Guyana and Trinidad and Tobago, Jackman M, 2015. The analysis finds that approximately 58 percent of heterosexual respondents from Barbados supported maintaining the current laws banning same-sex activity, while approximately 24 percent did not support the current laws. Furthermore, 46 percent of respondents from Barbados supported the enforcement of the current laws, while approximately 26 percent did not support enforcement.
In November 2014, a government minister announced he would resign rather than supporting gender-neutral legislation concerning domestic violence, according to local media reports.
The state’s capacity to protect
There is evidence that the state is not able to meet the protection needs of LGBTI Barbadians.
In December 2015, a transgender activist of Barbadian origin won a case against deportation from the USA on the basis that doing so would put her at risk of torture. Following the case, Donnya Piggot of B-GLAD called for legislative change in Barbados to protect the LGBTI community from discrimination.
The 2013 Universal Periodic Review for Barbados states that local police have been ‘denounced as discriminatory’ in their treatment of victims who are LGBTI. Quoted in a 2013 report by the Immigration and Refugee Board of Canada, Donya Piggot of B-GLAD states that some police ‘can be very dismissive of gay men and transwomen’, ‘justice is very rarely served’ in these cases ‘and many charges are dropped due to many years of waiting [or] missing reports’. According to the Inter-American Commission for Human Rights (2013), state investigators often identify crimes against LGTBI persons a priori as ‘crimes of passion’ or blame the victims’ lifestyle for attacks.
In September 2007, the chief of prisons for Barbados admitted to researchers from the US Department of State that some homosexual prisoners had been placed in special security cells but were still beaten by other inmates for being homosexual.
B-GLAD, one of the only organisations working for LGBTI persons in Barbados states that the NGO sector falls short of providing for all the needs of the community. B-GLAD, for example, has no provisions for shelters and minimal legal assistance.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
Movement Against Discrimination Action Coalition (MOVADAC)
59 6th Ave, Deacons Court, Deacons Road, St. Michael, Barbados
Contact Person: Patsy Grannum
Contact Email: movadac@gmail.com
Contact Telephone: (246) 233-2926
MOVADAC provides support to LGBT, delivers sensitization training for agencies on LGBT issues and documents human rights abuses of LGBT in Barbados.
COUNTRY OF ORIGIN SPECIALISTS
Dr David Murray
damurray@yorku.ca
Dr Murray has worked on issues of gender and sexual diversity in the English and French-speaking Caribbean since 1992. As an anthropologist, Dr Murray employs ethnographic research methods, including fieldwork and participant observation, to better understand how issues of sexual rights, homophobia, discrimination and tolerance are discussed by different groups in local contexts, with a particular focus on Barbados. Dr Murray’s most recent research project focuses on sexual orientation and gender identity refugee experiences of claiming asylum in Toronto, Canada.
Researched by: Michael Boyle
Email: michaelhughboyle@gmail.com