| Click here for a summary of the Bahamas’ review at the first cycle and/or the third cycle. |
15th UPR session
Date of review: 23 January 2013
Date of report adoption: 6 June 2013
Working Group report: A/HRC/23/8
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SUMMARY SOGIESC issues during Bahamas’s 2nd UPR review |
I. Key issues/recommendations identified by NGOs
- Consult with stakeholders to ensure full implementation of accepted recommendations relating to sexual orientation and gender identity.
- Include sexual orientation and gender identity in anti-discrimination legislation.
- Amend Article 107(4) of the Penal Code so that it cannot justify the use of force against a person, including killing, in any situations.
II. Excerpts from input reports
National report
III. Promotion and protection of human rights in The Bahamas
B. Children
Education and curricula
61. The Family Life and Health Education (FLHE) Curriculum and the Civics Curriculum promote teaching and learning experiences that focus on the rights and privileges of individuals and groups in society as members of the family, community and citizenry.
62. The Primary HFLE Curriculum is based on the CARICOM HFLE Regional Framework and is divided into four themes: Self and Interpersonal Relationships, Sexuality and Sexual Health, Nutrition and Physical Activity and Managing the Environment. Similar themes are explored in the Civics and Family and Consumer Sciences curriculum in our Junior High and Secondary Schools.
Compilation of UN information
There were no references to sexual orientation or gender identity.
Summary of stakeholder information
I. Information provided by stakeholders
A. Background and framework
2. Constitutional and legislative framework
4. AI [Amnesty International] recommended to repeal all provisions that discriminate against persons on grounds of their sexual orientation, including in the Domestic Violence (Protection Orders) Act (2007), the Sexual Offences and Domestic Violence Act, and the Penal Code; to include sexual orientation in Article 26 (3) of the Constitution and Article 6 of the Employment Act (2001) as a basis for protection from discrimination.
3. Institutional and human rights infrastructure and policy measures
5. AI recommended that the Bahamas establish and implement policies and initiatives to address discrimination based on sexual orientation or gender identity. It noted that negative impact of the legal framework on the daily discrimination suffered by lesbian, gay, bisexual and transgender persons in the Bahamas is reinforced by the lack of policies and initiatives from the authorities to address homophobia in the country.
C. Implementation of international human rights obligations
1. Equality and non-discrimination
8. AI noted that the Bahamas accepted an UPR recommendation to combat all forms of discrimination and to consider specific measures to promote tolerance and non- discrimination on the grounds of sexual orientation. To AI’s knowledge, the Bahamas has not taken action to combat discrimination based on sexual orientation and has not included sexual orientation as a basis of non-discrimination in its Constitution.
9. AI noted that despite the Bahamas supporting a recommendation to combat all forms of discrimination and to consider specific measures in order to promote tolerance and non- discrimination on the grounds of sexual orientation together with other positive steps, the authorities have failed to translate these into concrete policies at the national level. In particular, AI regretted that sexual orientation is not included in Article 26 (3) of the Constitution as a basis of non-discrimination. Similarly, it regretted that protection against discrimination in the workplace on grounds of sexual orientation has not been addressed. It was also noted that a number of laws in the Bahamas continue to expressly discriminate against lesbian, gay, bisexual and transgender persons and to entrench stigma against this community. Article 2 of the Domestic Violence (Protection Orders) Act (2007) omits same- sex couples from the protection of this legislation by indicating that the term “partner” only refers to “a party to a common relationship between a man and a woman”. In doing so, the law not only fails to protect same-sex couples from domestic violence, but also risks reinforcing the stigma attached to same-sex couples.
2. Right to life, liberty and security of the person
12. AI noted that Article 107 (4) of the Penal Code justifies the use of force against a person, even killing, in different situations of “extreme necessity”, including “forcible unnatural crime”. AI was extremely concerned by the recent judgements by national courts in the Bahamas and the interpretation of the current law by judges to justify murders due to supposed “advances of homosexual nature”.
III. References to SOGI during the Working Group review
Presentation by the State under review
29. On sexual orientation or gender identity, the Head of Delegation informed that The Bahamas’ Constitution in its Preamble refers to its respect for Christian values. They believe that “family” is the foundation of a strong Nation. Marriage in The Bahamas is the union of a man and a woman. There is no formal or positive legal discrimination against persons in The Bahamas based on sexual orientation or gender identity, although it is not included as a prohibited ground of discrimination in the Constitution, or legislation which prohibits discrimination in specific areas (such as employment). Neither have there been any reported cases where anyone has alleged discrimination on the basis of sexual orientation. There have been, within the past few years, a few instances of violence which involved persons alleged to be “gay”. However, these incidents were domestic in nature, characterized by a dispute between the parties themselves, and not provoked by any form of discrimination.
30. The Bahamas was the first country in the Commonwealth Caribbean (in 1991) to decriminalize consensual sex between persons of the same gender. Also, in 2010, and again during the current 67th session of the General Assembly, The Bahamas voted in support of the retention of language in a resolution condemning killings for any discriminatory reason to specifically include “sexual orientation” as a discriminatory ground for such killings. The Bahamas’ will remain engaged in the international discussions on the matter.
Interactive dialogue and responses by the State under review
40. New Zealand recognized the capacity and resource challenges Bahamas faced as a small island developing State. It also welcomed the country’s acceptance of a recommendation to consider measures to promote tolerance and non-discrimination on the grounds of sexual orientation and thanked the Government for information provided on steps taken in that regard.
41. Norway was concerned about reported high incidences of domestic violence and acknowledged efforts to combat the problem. It noted that The Bahamas had accepted recommendations to consider measures to promote non-discrimination regarding sexual orientation.
57. Uruguay highlighted the fact that despite the abrogation of the crime of homosexuality, certain legal loopholes generated discrimination against LGBT persons. It noted that, while the courts recognized property rights in de facto unions, there was no legal mechanism regulating such unions.
63. Bangladesh […] was concerned at deep-rooted stereotypes regarding men and women’s roles, responsibilities and identities.
65. Brazil welcomed Bahamas’ commitment to equality and non-discrimination and asked for information about measures to promote tolerance and non-discrimination on grounds of sexual orientation.
66. Canada welcomed the Bahamas’ efforts to counter all forms of discrimination against persons with disabilities and commended Bahamas on not criminalizing homosexuality.
84. The Netherlands noted the Bahamas’ consultation of civil society in implementing recommendations through “town hall” meetings to promote development and dialogue. It commended The Bahamas on its Domestic Violence Act 2007, which defines comprehensively violence in the home and criminalises stalking and harassment. However, it was concerned that the term “partner” only refers to a relationship between a man and a woman and is hence discriminatory.
IV. Conclusions and/or recommendations
The following recommendations were accepted the Bahamas:
92.33. Put in place a comprehensive strategy with a result-oriented approach to eliminate stereotypes that discriminate against women in the family, the workplace, in politics and in collaboration with civil society (Norway);
92.34. Adopt further measures aiming at addressing the situation of discrimination between men and women and to eradicate negative stereotypes (Italy).
Explanation of response to recommendations 92.33 – 92.34: A draft National Gender Policy is in progress; the Policy aims to address concerns identified through CEDAW and the UPR. (A/HRC/23/8/Add.1)
The following recommendation is being considered by the Bahamas:
92.37. Adopt measures to address the commission of any criminal acts or violence directed towards people based on their actual or perceived race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor (Canada).
The following recommendations were rejected by the Bahamas:
92.76. Include sexual orientation as a prohibited ground of discrimination in its Constitution Reform process (New Zealand);
92.77. Modify its legal framework in order to protect sexual minorities against discrimination (Norway);
92.78. Repeal all provisions that discriminate against persons on the grounds of their sexual orientation, including in the Domestic Violence Act (Protection Orders) and the Sexual Offences and Domestic Violence Act (United Kingdom of Great Britain and Northern Ireland);
92.79. Adopt legislation that prohibits discrimination on the basis of sexual orientation and gender identity, and reinforce existing constitutional provisions that prohibit discrimination based on race and national origin (United States of America);
92.80. Establish and implement policies and initiatives to address discrimination on the grounds of sexual orientation or gender identity (Uruguay);
92.81. Promote the necessary measures to repeal provisions discriminating people on the grounds of sexual orientation, including those contained in the Sexual Offences and Domestic Violence Act, and the Penal Code (Uruguay);
92.82. Consider the possibility of furthering the measures to eliminate all discriminatory treatment on the grounds of sexual orientation (Argentina);
Explanation of response to recommendations 92.76 – 92.82: There is no formal or positive legal discrimination against persons in The Bahamas based on sexual orientation or gender identity, although it is not included as a prohibited ground of discrimination in the Constitution, or legislation which prohibits discrimination in specific areas. Neither have there been any reported cases where anyone has alleged discrimination the basis of sexual orientation. It should be noted that The Bahamas is generally supportive of efforts to combat all forms of discrimination against persons and to promote tolerance. This matter will be considered by the Constitutional Reform Commission. The Government awaits its report. (A/HRC/23/8/Add.1)
92.83. Include same-sex couples in the Domestic Violence Act and make sure everyone is protected against domestic violence (Netherland);
92.84. Repeal all provisions giving rise to discrimination on the grounds of sexual orientation or gender identity and ensure the respect of the fundamental freedoms of all citizens (France).
Explanation of response to recommendations 92.83 – 92.84: There are no provisions in the Sexual Offences and Domestic Violence Act which in any way might be perceived as discriminatory against persons on the basis of sexual orientation. It should be observed that persons who are in a same sex relationships are able to avail themselves of the regular protection and remedies available under the law in respect to violence or assault of property rights. (A/HRC/23/8/Add.1)
V. Adoption of the Report
The draft report of the Working Group was at the 23rd session of the Human Rights Council in June 2013.
Response of the State under review
The delegation of the Bahamas outlined their response to the rejected recommendations, as detailed in the addendum to the working group report (A/HRC/23/8/Add.1). These responses are noted above. There were no other references to sexual orientation or gender identity by States or other stakeholders.
VI. Further information
UPR Documentation
National report: A | C | E | F | R | S
Compilation of UN information: A | C | E | F | R | S (UNHCR submission)
Summary of stakeholders’ information: A | C | E | F | R | S (all stakeholder submissions)
Questions submitted in advance: E only
Addendum 1: E only
Outcome of the review
Report of the Working group: A | C | E | F | R | S
Report of the 23rd session of the Human Rights Council: E
Related webcast archives
Working group review (January 2013)
Report adoption (June 2013)