Utech, Faculty of Law

Discrimination Law
Lecture 5
SEXUAL ORIENTATION
APA Definition
Sexual orientation refers to an enduring pattern of emotional, romantic,
and/or sexual attractions to men, women, or both sexes.
Sexual orientation also refers to a person's sense of identity based on
those attractions, related behaviors, and membership in a community of
others who share those attractions.
Research over several decades has demonstrated that sexual orientation
ranges along a continuum, from exclusive attraction to the other sex to
exclusive attraction to the same sex.
However, sexual orientation is usually discussed in terms of three
categories:
heterosexual (having emotional, romantic, or sexual attractions to
members of the other sex),
gay/lesbian (having emotional, romantic, or sexual attractions to
members of one's own sex), and
bisexual (having emotional, romantic, or sexual attractions to both
men and women).
Can it change (Does it matter?)
There is no consensus among scientists about the
exact reasons that an individual develops a
heterosexual, bisexual, gay, or lesbian orientation.
Although much research has examined the possible
genetic, hormonal, developmental, social, and
cultural influences on sexual orientation, no findings
have emerged that permit scientists to conclude that
sexual orientation is determined by any particular
factor or factors.
Many think that nature and nurture both play
complex roles; most people experience little or no
sense of choice about their sexual orientation.
Sexual Orientation and Religion
If its nature, then must be protected as an
immutable characteristic such as race.
If a choice, then, like religion, it must be
protected as a personal expression when it
causes no harm to others.

What discrimination?
Sexual orientation discrimination takes many
forms. Severe antigay prejudice is reflected in
the high rate of harassment and violence
directed toward lesbian, gay, and bisexual
individuals in Jamaican society.
J-FLAG reports since 2009 a near 300%
increase in the number of attacks against
LGBT. Also, discrimination against LGBT in
employment and housing appears to remain
widespread.
2010 Study by Professor Ian Boxill found 82%
of Jamaicans identified as homophobic.
Sexual Orientation and HIV & AIDS
The association of HIV and AIDS with gay and
bisexual men and the inaccurate belief that
some people held that all gay and bisexual
men were infected served to further
stigmatize lesbian, gay, and bisexual people.
Are gays abnormal?
Research has found no inherent association
between any of these sexual orientations and
psychopathology. Both heterosexual behavior
and homosexual behavior are normal aspects
of human sexuality. Both have been
documented in many different cultures and
historical eras. (American Psychological
Association)
Can gays change?
All major national mental health organizations
have officially expressed concerns about
therapies promoted to modify sexual
orientation. To date, there has been no
scientifically adequate research to show that
therapy aimed at changing sexual orientation
(sometimes called reparative or conversion
therapy) is safe or effective. (APA)
Gays and Parenting
Social science has shown that the concerns
often raised about children of lesbian and gay
parents' concerns that are generally grounded
in prejudice against and stereotypes about gay
people' are unfounded. Overall, the research
indicates that the children of lesbian and gay
parents do not differ markedly from the
children of heterosexual parents in their
development, adjustment, or overall well-
being. (APA)
Homosexuality in other Cultures
Africa:
Women in Lesotho engaged in socially sanctioned
"long term, erotic relationships" called motsoalle.
The first record of possible homosexual couple in
history is commonly regarded as Khnumhotep and
Niankjkhnum, an Egyptian male couple, who lived
around the 2400 BCE. The pair are portrayed in a
nose-kissing position, the most intimate pose in
Egyptian art, surrounded by what appear to be
their heirs.

Homosexuality in other Cultures
Americas
Two spirited in Native American culture was recognized
early in life, given a choice by the parents to follow the
path and, if the child accepted the role, raised in the
appropriate manner, learning the customs of the gender it
had chosen. Two-Spirit individuals were commonly
shamans and were revered as having powers beyond those
of ordinary shamans. Their sexual life was with the
ordinary tribe members of the same sex.
Homosexual and transgender individuals were also
common among other pre-conquest civilizations in Latin
America, such as the Aztecs, Mayans, Quechuas, Moches,
Zapotecs, and the Tupinamba of Brazil.



Homosexuality in Other Cultures
Asia
In China pleasures of the bitten peach, the cut
sleeve, or the southern custom, has been recorded
since approximately 600 BCE.
In Thailand, kings often had female and female
lovers, called ladyboys.
In Japan, homosexuality has been a feature of the
Buddhist and Samurai tradition for over 1000
years.
Homosexuality in other Cultures
Europe
Ancient Greeks, Romans and Renaissance
Europeans practiced it extensively. Henry VIII
criminalized the abominable crime of buggery at
about the same time he was splitting from the
Catholic Church.
Middle East
Some Muslim men have the practice of men for
recreation, women for procreation.
Homosexuality in other Cultures
South Pacific
The Etoro and Marind-anim for example, even
viewed heterosexuality as sinful and celebrated
homosexuality instead.
Homosexuality in Nature
A 1999 review by researcher Bruce Bagemihl
shows that homosexual behaviour has been
observed in close to 1,500 species, ranging
from primates to gut worms, and is well
documented for 500 of them.
Homosexuality in animals was cited in the US
Supreme Courts decision in Lawrence v Texas
which struck down the sodomy laws of 14
states.
Constitutional provisions
South Africa was the first country to enshrine
gay rights in its Constitution:
S.9(3) The state may not unfairly discriminate
directly or indirectly against anyone on one or
more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.

Legislation
Civil Service Staff Orders (Jamaica)
13.1 POLICY STATEMENT
Employees shall be treated fairly and equitably
without discrimination based on any of the
following grounds:

9. Sexual Orientation

Equality before the law
s. 13(3)(g)
Embraced in Jamaican Public Service
Staff Orders 2004:
S. 13(1) Employees shall be treated fairly and
equitably without discrimination based on any
of the following grounds:

(9) sexual orientation
BUT
Deliberately omitted from 2011 Charter of
Fundamental Rights and Freedoms S.13(3)(i):
[T]he right to freedom from discrimination on
the ground of-
(i) being male or female;
(ii) race, place of origin, social class, colour,
religion or political opinions;

(Reference made to male or female instead of sex
because sex has been interpreted, in some jurisdictions, to
include sexual orientation. )

Application for Redress
19.-(1) If any person alleges that any of the
provisions of this Chapter has been, is being or
is likely to be contravened in relation to him,
then, without prejudice to any other action
with respect to the same matter which is
lawfully available, that person may apply to
the Supreme Court for redress.

EXCEPT FOR
Jamaican Offences Against the Person
Act (1864)
Unnatural Offences

76. Whosoever shall be convicted of the abominable crime of buggery, committed
either with mankind or with any animal, shall be liable to be imprisoned and kept
to hard labour for a term not exceeding ten years.

77. Whosoever shall attempt to commit the said abominable crime, or shall be
guilty of any assault with intent to commit the same, or of any indecent assault
upon any male person, shall be guilty of a misdemeanour, and being convicted
thereof, shall be liable to be imprisoned for a term not exceeding seven years,
with or without hard labour.

Outrages on Decency

79. Any male person who, in public or private, commits, or is a party to the
commission of, or procures or attempts to procure the commission by any male
person of, any act of gross indecency with another male person, shall be guilty of a
misdemeanour, and being convicted thereof shall be liable at the discretion of the
court to be imprisoned for a term not exceeding two years, with or without hard
labour.
Constitutional Savings Law Clause
S. 13 (12) Nothing contained in or done under the
authority of any law in force immediately before the
commencement of the Charter of Fundamental
Rights and Freedoms (Constitutional Amendment)
Act, 2011, relating to
(a) sexual offences;
shall be held to be inconsistent with or in
contravention of the provisions of this
Chapter.

(Prevents constitutional challenge to anti-buggery law).
Jamaicas 2011 Charter of Rights
and Freedoms covers all?
Editorial Cartoon in Jamaica Gleaner, Saturday April 2, 2011
Some Caribbean Legal
Academics Views
Judicial solution for the buggery law
Anika Gray is an attorney-at-law and tutor in the
Faculty of Law, UWI,
http://jamaica-
gleaner.com/gleaner/20120205/focus/focus6.html
Caribbean constitutional standards and the
rights of sexual minorities
By Tracy Robinson, Senior Lecturer in Law at the
Faculty of Law, UWI, and IACHR Commissioner
http://unaidscaribbean.org/node/165

Case Law
Suratt v. AG
Trinidad and Tobago Justice of Appeal, now Chief
Justice, Ivor Archie challenged the
constitutionality of the Equal Opportunity Act 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. (He was overruled by the Privy Council)
Case law
Dudgeon v. United Kingdom
Resulted in the Council of Europe requiring that no
member state could criminalise male or female
homosexual behaviour.
Lawrence v Texas
Held that intimate consensual sexual conduct was part of
the liberty protected by substantive due process under the
Fourteenth Amendment to the US Constitution.
National Coalition for Gay and Lesbian Equality v.
Minister of Justice, South Africa
Struck down laws against consensual adult male same-sex
intimacy based on Constitutional protection against
discrimination on the grounds of sexual orientation.
Case Law
Nadan & McCoskar v. State
Fiji Bill of Rights to be interpreted in light of public
international law so criminalization of consenting adult
same-sex intimacy was quashed.
Naz Foundation v. Government of NCT of Delhi and
Others
Treating consensual homosexual sex between adults as a
crime is a violation of fundamental rights protected by
Indias Constitution.
Toonen v. Australia
UN Human Rights Committee held that sexual orientation
was included in the treatys antidiscrimination provisions
as a protected status.
Case Law
Edward Young v. Australia
Denying pension rights to same-sex partner was a violation
of ICCPR non-discrimination clause.
X v Colombia
The Constitutional Court found that same-sex partners
should be given the same pension and health benefits as a
family is. The court acknowledged that to exclude same-
sex partners would violate the principle of non-
discrimination and human dignity as the expression of
personal autonomy, protected by international law.
Egan v. Canada (Partners for 32 years applied for
pension)
Sexual orientation constitutes a prohibited basis of
discrimination under the Canadian Charter.
Case Law
Corbiere v. Canada
The Court found that an analogous ground upon which a
non-discrimination claim can be based must be
immutable, either actually immutable, such as race, or
constructively immutable such as religion.
Harksen v. Lane
Set out the appropriate test to determine when discrimination would
be unfair. Various factors must be considered, including the position
of the complainants in society and whether theyhave suffered from
past patterns of discrimination; the nature of the provision or power
and the purpose sought to be achieved by it; as well as any other
relevant factors.31 Such additional factors include the extent to
which the discrimination has affected the rights or interests of the
complainants and whether it has led to an impairment of their
fundamental human dignity.
Age of Consent
Leung v. Secretary for Justice
A 20 year old man got the age of consent for
same-sex intimacy equalized in Hong Kong (was 21
for gays and 16 for heterosexuals) as he felt low
self-esteem, loneliness, and sense of
marginalisation
Secretary for Justice v. Yau and Another
19 year old and 30 year old men caught having
anal intercourse in parked car in public. Court held
they had to be treated equally as heterosexuals.
Marriage
Halpern v. Canada
The common-law definition of marriage, which defined
marriage as between one man and one woman, violated
the non-discrimination clause of the Canadian Charter of
Rights and Freedoms.
Minister of Home Affairs and Another v Fourie and
Another
South African Constitutional Court found that
discrimination against same-sex marriage was
unconstitutional and gave Parliament a year to pass the
Civil Union Act.
Jamaican Constitution
Section 18 prohibits recognition of any other form of
relationship but heterosexual in Jamaica.


UN Bodies Comments on Sexual
Orientation Discrimination
General Comment No. 20, Committee on
Economic, Social and Cultural Rights
The nature of discrimination varies according to
context and evolves over time. A flexible approach
to the ground of other status is thus needed to
capture other forms of differential treatment that
cannot be reasonably and objectively justified and
are of a comparable nature to the expressly
recognised grounds in Article 2(2). These
additional grounds are commonly recognised
when they reflect the experience of social groups
that are vulnerable and have suffered and
continue to suffer marginalisation.

UN Statements
UN Doc. CCPR/CO/83/KEN, 28 March 2005, at para. 27 (Kenya);
UN Doc. CCPR/C/BRB/CO/3, 11 May 2007, at para. 13 (Barbados);
UN Doc. CCPR/CO/76/EGY, 28 November 2002, at para. 19 (Egypt);
UN Doc. CCPR/C/79/Add.111, 28 July 1999, at para. 16 (Romania);
UN Doc. CCPR/C/79/Add.106, 18 April 1999, at para. 13 (Lesotho);
UN Doc. CCPR/C/79/Add.104, 30 March 1999, at para. 20 (Chile);
UN Doc. C/79/Add.85, 29 July 1997, at para. 8 (Sudan).
Concluding Observations on Kyrgyzstan, UN Doc. A/54/38, 20 August 1999,
at para. 128.
Concluding Observations on Sweden, UN Doc. A/56/38, 31 July 2001, at
para. 334;
Concluding Observations on Ecuador, UN Doc. CEDAW/C/ECU/CO/7, 2
November 2008, at para. 28.
Committee on the Rights of the Child, General Comment 4, UN Doc.
CRC/GC/2003/4, 1 July 2003, at para. 6.
Committee Against Torture, General Comment 2, UN Doc. CAT/C/GC/2, 24
January 2008, at para. 21.

UN Statements
Committee on Economic, Social and Cultural Rights, General Comment 20,
UN Doc. E/C.12/GC/20, 10 June 2009, at para. 32.
See General Comment No. 14, UN Doc. E/C.12/2000/4, 11 August 2000, at
para. 18; and General Comment No. 15, UN Doc. E/C.12/2002/11, 20
January 2003, at para. 13.
Judgment of 21 December 1999, Case of Salgueiro da Silva Mouta v.
Portugal, Application No. 33290/96, at para. 28.
Communication 245/2002 Zimbabwe Human Rights NGO
Forum/Zimbabwe, 21st Activity Report, EX.CL/322(X), Annexure III at para.
169.
Report of the Working Group on Arbitrary Detention, UN Doc.
E/CN.4/2004/3, 15 December 2003, para. 73;
Working Group on Arbitrary Detention, Opinion No. 7/2002 (Egypt), para.
27,
UN Doc. E/CN.4/2003/8/Add.1; Opinion No. 22/2006 (Cameroon), para.
19,
UN Doc. A/HRC/4/40/Add.1.

OAS Resolution 2653
(adopted 2011)
Condemns discrimination on the basis of Sexual Orientation
and Gender Identity and urge the eradication of such
discrimination.
States now have a positive obligation to address discrimination
(especially on the basis of gender identity).

IACHR rulings
Merits Report on the Karen Atala case in 2010
the IACHR set forth that the American
Convention on Human Rights prohibited
discrimination based on an individuals sexual
orientation. Given that Chile did not comply
with the recommendations to repair the
damage caused to Atala and her daughters,
the Commission filed an application before
the Inter-American Court of Human Rights
against Chile, for which process is currently
pending.