| For a summary of Jamaica’s review at the second cycle please click here. |
9th UPR session
Date of review: 8 November 2010
Date of report adoption: 4 January 2011
Document number: A/HRC/16/14
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SUMMARY SOGIESC issues during Jamaica’s 1st UPR review |
I. SOGIESC issues/recommendations identified by NGOs
Institutional and human rights infrastructure
5. JSI indicated that Jamaica has quite a few institutional and human rights structures, but none of them specifically address issues related to lesbians, gay, bisexual, transsexual and intersex persons, as well as sex workers, and very few of them address issues related to people living with HIV/AIDS.
D. Policy measures
6. JS1 reported cases of abuse and harassment of gay men and sex workers by police officers. It recommended that Jamaica provide training to all criminal justice officers in international human rights standards in relation to sexuality, sexual orientation and HIV/AIDS. Such training should be fully integrated into existing training programmes to all ranks and should also include the fundamentals of HIV transmission and care.
7. Youth Coalition for Sexual Reproductive Rights (YCSRR) stated that there were several mob related killings of lesbian, gay, bi-sexual and trans-gender persons, for which no one has been prosecuted. It recommended training for the police and other security forces on responding to violence against lesbian, gay, bi-sexual and trans-gender persons.
II. Promotion and protection of human rights on the ground Implementation of international human rights obligations
Equality and non-discrimination
11. YCSRR stated that the legislation did not guarantee all persons equal and effective protection against discrimination, and recommended that Jamaica enact legislation which recognizes sexual orientation and gender identity as criteria for non-discrimination.
Right to privacy, marriage and family life
33. JS1 stated that Sections 76, 77 and 79 of Jamaica’s 18 Century Offences Against the Person Act criminalized anal sex, private sex acts of consenting adult males, as well as any form of same-sex male intimacy termed ‘gross indecency.’ These provisions can be used to target and prosecute homosexuals. JS1 recommended their repeal. 34. JSI asserted that Section 80 of the Offences against Persons Act and Section 4 of the Town and Communities Act granted broad latitude for arrest and detention without a warrant of arrest or an order from a magistrate, and was also used to incarcerate gay men, lesbians and sex workers. It recommended that Jamaica repeal this provision and replace it with legislation which provided strict limitations on situations in which an arrest without a warrant is permissible.
36. JS1 stated that the proposed Charter of Rights and Freedoms which will amend the Jamaican Constitution, made no reference to non-discrimination on the grounds of ‘sexual orientation’ and ‘gender identity.’ It recommended that Jamaica include “sexual orientation and gender identity,” “sex” and “HIV/AIDS status” in this proposed amendment.
37. IACHR indicated that it strongly condemned the high level of homophobia that prevailed throughout Jamaican society. It has resulted in violent killings of persons thought to be gay, lesbian, bisexual or transsexual, as well as stabbings, mob attacks, arbitrary detention and police harassment. The resulting fear made it difficult for these people to access basic services. Also, defenders of the rights of gay, lesbians, bisexuals and transsexuals have been murdered, beaten and threatened, and the police have been criticised in many instances for failing to prevent or respond to reports of such violence. IACHR stated that Jamaica must take measures to ensure that gays, lesbians, bisexuals and transsexuals can associate freely and exercise their rights without fear of attack. These measures could include adoption of public policy, campaigns against discrimination based on sexual orientation, and legislative reforms.
38. JS1 noted that there was no constitutional protection from employment discrimination on the grounds of sexual orientation and gender identity. It also noted that sex work is criminalized, regardless of whether it is freely entered into by consenting adults.
39. JS1 stated that gay men, sex workers and young homosexuals are regularly evicted from their homes and left homeless.
40. YCSRR stated that there was systematic exclusion of education services for lesbian, gay, bisexual, transgender and intersex young people, who faced discrimination on the grounds of sexual orientation, gender identity and gender expression. It recommended that Jamaica: ensure equal access to education and equal treatment of lesbian, gay, bisexual, transgender and intersex young people; and that education was directed to the development of each student and responded to the needs of students of all sexual orientation and gender identities.
Right to social security and to an adequate standard of living
42. IACHR stated that HIV infected persons were denied access to health care. JS1 expressed the view that gay men and sex workers are driven away from HIV/AIDS prevention treatment and care interventions because of discrimination and intolerance against them. JS1 recommended that Jamaica provide training on HIV/AIDS, sexuality and sexual orientation to all personnel in health care facilities and that the training should include the right to privacy and the protection of confidential information.
II. Excerpts on SOGIESC issues from the national report
The Constitution
10. The Jamaican Constitution is the supreme law of the country. It addresses a wide range of issues such as nationality and citizenship, human rights and fundamental freedoms, and the operation of the Executive and the Public Service. Chapter 3 of the Jamaican Constitution provides for the protection of fundamental human rights and freedoms. The chapter establishes that all persons, regardless of race, political opinion, place of origin, colour, creed or sex are entitled to certain inherent rights as human beings. These include the right to life; the right to personal liberty; security of person; freedom of movement; freedom from inhuman treatment or punishment; enjoyment of property; freedom of conscience and expression; freedom of peaceful association and assembly; respect for private and family life; freedom from discrimination on the grounds of race and the right to vote. The Government of Jamaica respects the right of all individuals and does not condone discrimination or violence against any person or group because of their sexual orientation. The Constitution also provides for any person who feels that his/her rights are being violated or likely to be contravened to apply to the Supreme Court (or on appeal to the Court of Appeal) for the enforcement of rights and for redress.
III. Excerpts on SOGIESC issues by UN agencies
No references.
IV. References to SOGIESC issues during the Working Group review
31. Regarding the issue of sexual orientation, Jamaica stressed that, although consensual sex between adult males remained proscribed by law, there was no legal discrimination against persons on the grounds of their sexual orientation. Jamaica pointed out that Jamaican law did not criminalize lesbian, gay, bisexual and transgender orientation, nor did the Government condone discrimination or violence against lesbian, gay, bisexual and transgender persons. It added that there had been no credible cases of arbitrary detention and/or harassment of such persons by the police, nor was there any such official policy. Likewise, there was no evidence of any mob-related killing of lesbian, gay, bisexual or transgender persons.
32. Jamaica stressed that the issue of male homosexuality was one of great sensitivity in Jamaican society, in which cultural norms, values, religious and moral standards underlay a rejection of male homosexual behaviour by a large majority of Jamaicans; and that the Government was committed to ensuring that all citizens were protected from violence.
47. Belgium raised issues with regard to the death penalty, allegations of extrajudicial executions by the police which had often remained unpunished, and discrimination on the grounds of sexual orientation and identity.
50. Australia […] encouraged Jamaica to repeal its laws against homosexual activities and condemn homophobic statements made by public figures.
52. The Netherlands commended Jamaica for its efforts to reform the law enforcement and judicial system, noting that it was still concerned by reported cases of arbitrary detention and arrests, which had remained unpunished. The Netherlands expressed concern about reports of harassment of lesbian, gay, bisexual and transgender persons and stated that legislation criminalizing same-sex activities between consenting adults might contribute to that problem.
53. The United States of America […] remained concerned about continuing discrimination, violence and exploitation, especially against the lesbian, gay, bisexual and transgender community.
54. Slovenia stated that, despite the commendable efforts of Jamaica, stakeholders had observed that women continued to face discrimination and domestic violence. Slovenia stated that the reports of abuse and harassment of lesbian, gay, bisexual and transgender persons by law enforcement officials were highly worrisome.
56. The United Kingdom encouraged Jamaica to promote tolerance and to end discrimination against lesbian, gay, bisexual and transgender persons.
58. In response to questions regarding sexual orientation, Jamaica reaffirmed its position on the issue and noted that sexual orientation was not criminalized, only a specific act. Jamaica stated that it was aware of existing concerns and observed that this was a sensitive issue.
66. Sweden expressed concern about, inter alia, the criminalization of consensual sex between men, and inquired whether there were initiatives to repeal the law that prohibited sexual activity between men.
82. Jamaica reiterated the value it placed on the interactive dialogue. It reaffirmed its positions in relation to: the call by some states to ratify outstanding instruments; in particular the Optional Protocols to ICCPR; the question surrounding sexual orientation and the repeal of the buggery laws and the death penalty.
84. With regard to sexual orientation and discrimination, Jamaica explained that the government has raised public awareness of these issues and will continue to do so, but that this needed resources.
V. Conclusions and/or recommendations
Jamaica accepted the following recommendations:
99.34. Provide all enforcement officials with proper sensitivity training in relation to sexual orientation, gender identity and HIV/AIDS (Slovenia).
Jamaica noted the following recommendations:
100.21. Reinforce legal protections against discrimination to include sexual orientation and gender identity as prohibited grounds for discrimination (Canada);
100.22. Initiate or join public campaigns so as to encourage tolerance towards homosexual, bisexual and transsexual persons (Belgium);
100.23. Start a public information campaign to combat discrimination based on sexual orientation (Netherlands);
101.18. Repeal all provisions that criminalize same-sex activities between consenting adults (Netherlands);
101.19. Repeal sections 76, 77 and 79 of the Offences against the Person Act, which criminalize same-sex male intercourse (United States);
101.20. Decriminalize consensual sexual relations between adults of the same sex, and abolish all legal provisions discriminating against homosexual, bisexual or transsexual persons (Belgium);
101.21. Decriminalize sexual activity between consenting adults of the same sex, and address hate crimes on the grounds of sexual orientation and gender identity, as a matter of urgency (Slovenia);
101.22. Decriminalize consensual same-sex relations between males, investigate all incidents and acts of violence suspected of being motivated on the grounds of sexual identity, and take all necessary measures to ensure the full enjoyment of human rights by lesbian, gay, bisexual and transgender persons, as stipulated by the principle of non-discrimination established under international human rights law and articulated in the Yogyakarta principles (Sweden);
101.23. Include in the Charter of Rights Bill, currently before Parliament, a specific prohibition of discrimination on the grounds of sexual orientation and repeal all legal provisions criminalizing consensual relations between adults of the same sex; and combat this type of discrimination through awareness-raising campaigns and education programmes in school (Spain);
101.24. Repeal all legal provisions constituting discrimination against lesbian, gay, bisexual and transgender persons (France);
101.25. Remove legislation which discriminates against individuals on the basis of their sexual orientation or gender identity (Australia);
102.1. Ensure the protection of defenders of the rights of lesbian, gay, bisexual and transgender persons; and take measures to ensure that lesbian, gay, bisexual and transgender persons can fully and freely exercise their rights without fear of attack or reprisal (United States).
VI. Further information
You will find all documents relating to Jamaica’s first review at UPR-Info and OHCHR’s websites.