A top court for nine eastern Caribbean nations and territories has ruled that sexual orientation and homosexual activity are protected under the right to privacy, invalidating colonial-era laws that criminalised homosexual behaviour in Saint Kitts and Nevis.
Anti-sodomy laws were challenged in court by Saint Kitts and Nevis Alliance for Equality (SKNAFE) and Jamal Jeffers, a gay man, in January of last year according to Loop, a Caribbean news outlet.
“This decision strongly establishes that a person’s sexuality should never be the basis for any discrimination. We welcome the recognition of this fact, one for which we have long advocated,” said Tynetta McKoy, the executive director of SKNAFE, according to Loop.
Gay people have faced discrimination in the region, and the ruling has been celebrated by gay rights groups as a step towards equality and freedom. SKNAFE and Jeffers had argued that the right to liberty includes the right to consensual sex and partnership with a person of their choosing.
They further argued that the right to privacy is not limited to protection against unlawful searches.
The St Lucia-based court upheld that claim, with High Court Judge Trevor Ward stating that sections of the 1873 anti-sodomy law infringe upon the “right to determine the way they, as individuals, choose to express their sexuality in private with another consenting adult.”
Ward said in the ruling those laws are “null and void and of no force”.
The local government unsuccessfully argued that sexual orientation was not covered by freedom of expression guarantees. They also argued that toleration of gay activity would open “the floodgates to practices that could alter and compromise survival of the culture and personality of the Federation”, which they argued was founded on “belief in Almighty God and the inherent dignity in each individual”.
Evangelical groups had also spearheaded efforts to uphold the law. The chairman of the Evangelical Association of Saint Kitts, comprised of about 30 Christian churches, had filed an affidavit supporting the law arguing that “the moral and religious fibre of the community should influence any interpretation of the Constitution.”
The court rejected those claims, stating that “public morality is not synonymous with religious dogma or public opinion.”
The law was rarely invoked but had been amended in 2012 to increase the maximum penalty for indecent assault against men from four years to 10 years, including the possibility of hard labour. According to Loop, enforcement remains in effect in cases of non-consensual sex and sex with minors.
“We have achieved history,” said Kenita Placide, the executive director of the Eastern Caribbean Alliance for Diversity and Equality. “An affirmative decision means a yes to privacy and a yes to freedom of expression.”
The Joint United Nations Programme on HIV and AIDS tweeted its support for the ruling, calling it “great news.”
St Kitts and Nevis becomes the latest country to declare that laws that have criminalized LGBT people are unconstitutional.
— UNAIDS (@UNAIDS) August 30, 2022
Courts in Belize, Trinidad and Tobago and Antigua and Barbuda have previously found similar laws unconstitutional. Other cases in Barbados and St Lucia are pending, and Loop reported that LGBTQ organisations expect those challenges to conclude by the end of 2022.