Trinidad and Tobago High Court Decriminalises Same-Sex Relations

" 1.  By this action, the court has been asked to determine whether the State has the constitutional authority to criminalise sexual relations between consenting adults. Sexual relations between persons of the same sex constitute a criminal offence by virtue of sections 13 and 16 of the Sexual Offences Act Chapter 11:28 ("the Act").

2.  The claimant petitioned the court, pursuant to section 14 of the Constitution, to strike down sections 13 and 16 of the Act and, by so doing, decriminalise consensual sexual relations between persons of the same sex...

3.  This court considered the numerous authorities submitted by the parties.. The court considered the history of the impugned sections and the applicable principles and tests to be applied to constitutional challenges in this jurisdiction together with persuasive authorities in other jurisdictions.

4.  After careful consideration this court came to the following conclusions: ...


4.3.  Sections 13 and 16 of the Act violate the claimant’s fundamental rights, especially his right to respect for his private and family life;

4.4.  Sections 13 and 16 of the Act have been proven not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual...

14.  This is not a case about religious and moral beliefs but is one about the inalienable rights of a citizen under the Republican Constitution of Trinidad and Tobago; any citizen; all citizens. As discussed below, this is a case about the dignity of the person and not about the will of the majority or any religious debate. History has proven that the two do not always coincide. To my mind, religious debates are best left to be discussed and resolved in other quarters with persons who subscribe to those particular ideals and for the followers of those ideals to be convinced as to the religiousness, sanctity or morality of those ideals. In this case, the court has had to consider the dignity of the claimant and citizens like him in the Republic of Trinidad and Tobago in the context of whether his, and by extension, their rights under the Constitution are being validly impinged...

168.  Having regard to the evidence and submissions before this court on all sides, there is no cogent evidence that the legislative objective is sufficiently important to justify limiting the claimant’s rights... do not counterbalance the claimant’s limit of his fundamental right of which he has given evidence. Instead, the court accepts the claimant’s position that the law as it stands is not sufficiently important to justify limiting his fundamental rights and that he has proven it on a balance of probabilities...

173.  At this point, the court feels compelled to state in conclusion that it is unfortunate when society in any way values a person or gives a person their identity based on their race, colour, gender, age or sexual orientation. That is not their identity. That is not their soul. That is not the sum total of their value to society or their value to themselves. The experiences of apartheid South Africa and the USA during and after slavery, even into the mid and late 20th century, have shown the depths that human dignity has been plunged as a result of presupposed and predetermined prejudices based on factors that do not accept or recognize humanity. Racial segregation, apartheid, the Holocaust - these are all painful memories of this type of prejudice. To now deny a perceived minority their right to humanity and human dignity would be to continue this type of thinking, this type of perceived superiority based on the genuinely held beliefs of some.

174.  This conclusion is not an assessment or denial of the religious beliefs of anyone. This court is not qualified to do so. However, this conclusion is a recognition that the beliefs of some, by definition, is not the belief of all and, in the Republic of Trinidad and Tobago, all are protected, and are entitled to be protected, under the Constitution. As a result, this court must and will uphold the Constitution to recognize the dignity of even one citizen whose rights and freedoms have been invalidly taken away...

176.  Consequently, the court will grant the following relief:

176.1.  The court declares that sections13 and16 of the Act are unconstitutional, illegal, null, void, invalid and are of no effect to the extent that these laws criminalise any acts constituting consensual sexual conduct between adults... "

The Honourable Mr. Justice Devindra Rampersad, The High Court of Justice, Republic of Trinidad and Tobago, April 12, 2018.
 
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