Shirley Richards | Majority view on gay rights must have sway

In an article written by Dr Carolyn Gomes published on Sunday, May 28, 2017, she stated, in relation to the development of the Charter of Rights: "The Parliament, however, appears to be timid. It has not acted on the recommendation to ensure that all citizens are protected from discrimination on the basis of disability, health status, if they speak Patois, have a mental illness, or are different in sexual orientation and gender identity."

These were recommendations made by various interest groups. They were debated by the joint select committee of Parliament on the Charter of Rights (Constitutional Amendment) Bill and decisions were made to accept or reject accordingly.

The Parliament had then, and still does have, a responsibility to allow for citizens to make submissions, but there was, and still is, the corresponding responsibility to sift submissions and to decide which ones are in the best interests of the country. Parliament must examine all the relevant studies and data. They must also have an understanding of the impact of these decisions on the country both now and in time to come and be satisfied that such decisions are in fact for the good of the country.

In determining what is in the "best interests" of the country, they cannot afford to disregard the voice of the people. Specifically, the members of the House of Representatives are there to represent the people, not to foist their own viewpoints on the people, a point Justice Minister Delroy Chuck, as a member of said House, may do well to remember. As the late Norman Manley, QC, said on the occasion of the passage of the 1962 Constitution:

"As a politician, sir, I would be the first person to acclaim every instance in which the public succeeds in having their way ... for we, sir, are their servants and are here to execute their will."

Non-discrimination

As it relates to the issue of "sexual orientation", the joint select committee (1999-2001) debated the request by the Jamaica Forum for Lesbians, All-Sexuals and Gays to protect 'sexual orientation' as grounds for non-discrimination. The committee expressly decided not to protect this term. The committee was concerned about the impact of such a term on the institution of marriage and on parenting.

The current assault on marriage in Western democracies proves that the committee was right. These countries, many of which label themselves 'developed', have allowed themselves to be seduced by a twisted philosophy of rights. Such philosophy converts desires into justiciable causes. Instead of being able to ascertain rights from a moral philosophy, some activists create 'rights' according to desires and then formulate a sympathetic supporting 'moral' philosophy in the image of those rights.

Further, the concepts of sexual orientation and gender identity (SOGI) are legally controversial and lack scientific support and international consensus. The experience in other countries has been that when accepted in policy and law, such concepts compete with, and undermine, the functioning of fundamental human rights and freedoms.

Sexual orientation, which is exhibited by behaviour, cannot be compared to such tangible characteristics as ethnicity and biological sex, which are determined and fixed at conception. It bears repeating that our current laws already protect the true fundamental rights of all Jamaicans.

Among the persons who have suffered under the sexual orientation regime in these countries are bakers, small hoteliers, farmers, public-health experts, florists, photographers, human resource managers, property managers, Red Cross volunteers, and fire chiefs. They were fined or fired from their jobs, banned, demoted, lost their membership, or lost their businesses because they chose to affirm the factual distinctions between males and females and that marriage was strictly between a man and a woman.

They were punished through the legal system because they declined to support the claim that same-sex relations was normal behaviour. They were under the impression that they had a right to freedom of conscience and freedom of expression. Unfortunately for them, however, the terms 'sexual orientation' and 'gender identity' were deemed to take precedence over the exercise of freedom of conscience and freedom of expression.

Accept recommendations

This is what can be expected to happen in this country of ours should Parliament accept the recommendation of Dr Gomes and others to include sexual orientation and gender identity as bases for non-discrimination.

Former Attorney General and Minister of Justice A.J. Nicholson is to be commended for his boldness in mitigating the likely impact of the Charter of Rights if left as was originally proposed. In order to secure the good of us all, including the homosexual community, he allowed for the inclusion of a clause, saving, inter alia, laws relating to sexual offences in the Charter of Rights and for the true definition of marriage to be included in the Charter.

In these discussions, we would do well to remember the words of English jurist Sir William Blackstone, who said so many years ago, "The control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance."

- Shirley Richards is an attorney-at-law and campaigner against gay marriage. Email feedback to columns@gleanerjm.com and sprichards82