How a peculiarity of the UK legal system contributes to the discrimination of LGBTIQ+ people in the Caribbean today
The author argues that UK judges have systematically stopped Caribbean independent nations from dismantling the oppressive colonial system. This short piece shows a structural peculiarity of the British legal system that enables the continuation of colonial attitudes in today’s legal system and reveals structural racism that persists to this day.
It also sheds a light on an aspect of the UK that is relevant in the context of the debate on decolonisation and the granting of human rights for LGBTIQ+ people in formerly colonized regions of the world.
People of colour were legally deprived from citizenship in the beginnings of the U.S.European colonization brought to America the inequality of its class system against which independence was fought; American colonies declared in 1776: “The self-evident truth that all men are created equal … with certain inalienable Rights, etc.” But independence failed to deliver equality for women and people of colour. The Supreme Court of the United States (SCOUS) confirmed it in Dred Scott v Sandford (1857) ruling that people of colour were not citizens and that the constitution “makes no distinction” between slaves and other chattel owned by a citizen.
Supreme Court held Caribbean people to be uncivilized in 1901
In Downes v. Bidwell (1901) (first of a series known as “Insular Cases”), the SCOUS extends inequality to ethnicity holding Caribbean people to be uncivilized and not worthy of full US citizenship, but to enjoy some basic constitutional rights such as the right liberty, hence same-sex marriage was extended to Puerto Rico and US Virgin Islands after Obergefell (2015). Netherlands and France provide their Caribbean colonies with fundamental rights as enjoyed in Europe including same-sex marriage. In July, the Dutch Supreme Court upheld Caribbean judges who in 2022 declared the laws of Aruba and Curaçao unconstitutional for discrimination, as a result of prohibiting same-sex marriage.
UK legal system contributes to discrimination of LGBTIQ+ in the Caribbean
The UK is anomalous in the region; it exercises a rare ‘privilege’ of being the only western democracy that permits discrimination of LGBTQ+ citizens in its Caribbean territories under UK government implemented constitutions. This anomaly creates a two-tier system in which the denial of equality and dignity for LGBTQ+ British citizens in the Caribbean territories contrasts starkly with the position enjoyed by LGBTQ+ British citizens living in the UK.
This is segregation – and endorsed in 2022 by UK Supreme Court judges, sitting in the Privy Council, a colonial remanent, in appeals against Caribbean judges that found in favour of marriage equality in Bermuda and Cayman Islands. As opposed to Dutch judges, UK judges chose to reverse Caribbean judges, denying equality and dignity. A perhaps predictable outcome when one looks at relevant historical judicial precedents:
- Pinder v Bahamas (2002): British judges ruled that colonial laws can never die; if repealed but re-enacted, re-enacted laws regain colonial status – relevant to the next decision:
- Boyce v The Queen (2004): British judges ruled that the constitutionality of colonial laws, no matter how “inhumane and degrading”, cannot be questioned nor breach fundamental rights.
- Campbell-Rodriques v AG Jamaica (2007): British judges denied Caribbean people access to fundamental rights, e.g. protection of the law, non-discrimination.
UK judges have systematically stopped Caribbean independent nations from dismantling the oppressive colonial system
In brief, UK judges have systematically stopped Caribbean independent nations from dismantling the oppressive colonial system by having: (1) denied Caribbean people equal protection of the law; and (2) allowed Caribbean governments to act with impunity, with no judicial control when enforcing colonial laws. In 2007, Pinder and Boyce were both found to breach international human rights by the American Court and Commission of Human Rights.
In May 2022, in Chandler v Trinidad and Tobago, British judges had opportunity to reverse Boyce and restore Caribbean people’s access to fundamental rights, in compliance with international law. They chose not to and upheld Boyce. The UK government said nothing, despite two months earlier, Liz Truss (as Foreign Secretary) calling for British judges to step down from the Hong Kong Court to avoid being complicit in the enforcement of Chinese laws deemed to breach international law.
Positive impacts of the Caribbean Court of Justice
On 14 February 2001, Antigua and Barbuda, Barbados, Belize, Granada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Suriname and Trinidad and Tobago established the Caribbean Court of Justice (CCJ) to replace the British Privy Council as apex court. Dominica and Saint Vincent and the Grenadines joined them in February 2003. Since the installation of the CCJ, Belize, Barbados, Dominica, Guyana and St Lucia abandoned the Privy Council and joined the CCJ – a court that has consistently enforced human dignity, equality and non-discrimination. The effect is a dismantling of colonial systems of oppression that the Privy Council is adamant to retain, even by preventing countries to leave its jurisdiction (e.g. Jamaica in 2007) andresorting to extreme practices, e.g. manipulating panels of judges to achieve outcomes desired by Caribbean governments, as former UK Supreme Court judge Lord Millett revealed happened in Boyce in 2004.
Privy Council uses colonial structures to criminalize LGBTQI+ people
The positive impacts of the Caribbean Court of Justice are evidenced by contrasting recent judgments on the constitutionality of colonial anti-sodomy laws. In Barbados (2022) and Dominica (2024) (under the Caribbean Court of Justice), courts declared the colonial laws unconstitutional. Conversely, in Jamaica (2023) and St Vincent & Grenadines (2024) (under the Privy Council), courts declared the colonial laws constitutional by effect of binding precedent of the Privy Council.
In 2023, the UN Independent Expert on SOGI reported to the UN General Assembly that the Privy Council still uses colonial structures to criminalise LGBTQI+ people in the Caribbean and called to explore international liability of the UK government for making these structures.
Dr Leonardo Raznovich is an English practising barrister (called in 2010) and academic whose work focuses on human rights and British colonial constitutional law. Based in the Cayman Islands, Leonardo serves as legal consultant for Colours Caribbean (an organisation that advocates for the fundamental rights and freedoms of the LGBTQI+ community of Caribbean British colonies). For more information please see.
This article is part of the project “Cultures and Colonialism ‒ The struggle for LGBTIQ+ human rights in light of the decolonization debate” from the Hirschfeld-Eddy Foundation.
