On 28 September 2019, a decision was made by the Inter-American Commission on Human Rights (Commission) in the case of Gareth Henry & Simone Carline Edwards v. Jamaica. The decision was confidential until 17 February 2021. The Commission held that Jamaica was in violation of the American Convention on Human Rights (ACHR) by continuing to criminalise private, consensual sexual activity between adult males and by failing to afford adequate protection to all LGBT Jamaicans. The Commission urged the state to repeal the offending laws and to take other measures to protect LGBT people in Jamaica.
Leading Jamaican activist and gay man Gareth Henry was living as a refugee in Canada. Simone Edwards, a lesbian woman, was also forced to flee the country because of the hostile environment and lack of protection from the state. Both Henry and Edwards had been subjected to severe anti-LGBT violence in Jamaica. In December 2011, the Human Dignity Trust submitted a case to the Commission on behalf of Henry. In 2014, Edwards joined the case.
The petitioners challenged Sections 76, 77 (buggery and attempted buggery) and 79 (gross indecency) of the Offences Against the Person Act 1864. Anyone convicted of ‘buggery’ faces a sentence of up to ten years imprisonment and hard labour. Any male convicted of ‘gross indecency’ with another male faces a sentence of up to two years imprisonment with or without hard labour. The petition also sought to challenge the ‘savings law’ clause of the Constitution of Jamaica. This clause purports to shield the anti-homosexuality laws from a constitutional challenge in domestic courts.
The Commission held that violations of the ACHR were made by the state. The Commission found that the right to privacy (Article 11), the right to equal protection (Article 24), the right to humane treatment (Article 5.1), the right to freedom of movement (Article 22.1) and the principle of legality (Article 9) of the ACHR were violated by the provisions of the Offences Against the Person Act. The Commission also explicitly identified a violation of the right to judicial protection (Article 25.1) in reference to the ‘savings law’ clause.
On the impact of criminalisation, the Commission noted that “there is a link between sodomy laws and human rights abuses against LGBTI persons inasmuch as said laws condone discrimination, stigmatization and violence by providing a social sanction for abuse and contributes to the occurrence of homophobic and transphobic crimes as well as to other abuses. The [Commission] has also expressed that the mere existence of sodomy laws can impact mental health by creating anxiety, guilt and depression among LGBTI persons affected by the law.”
The Commission recommended that Jamaica provide full reparations for the human rights violations identified. It also recommended the repeal of Sections 76, 77 and 79 as well as adopting legislation, data, training, investigative measures and educational programmes to prevent repetition of violations in the future.
