Foreign Affairs committee stands up for gay rights in the Cayman Islands

August 9, 2009 at 7:18 pm 1 comment

cayman
by Tony Grew

A committee of MPs has said it is “deplorable” that the Cayman Islands draft constitution excludes sexual orientation as a prohibited ground for discrimination.

“The possibility cannot be ruled out that the drafting of the constitution in this regard may result in Cayman Islands courts affording to citizens of those islands less than the full protection which they are entitled to under the European Convention on Human Rights,” according to a report from the Foreign Affairs committee.

They recommend that in all future discussions with Overseas Territories about revisions to their constitutions, the Foreign Office insists that no specific religion or faith community be singled out for privileged mention, and that anti-discrimination provisions make explicit mention of sexual orientation.

Located south of Cuba and northwest of Jamaica, the Cayman Islands have a population of 52,000.

It is one of 14 British overseas territories that are under British sovereignty but which do not form part of the UK.

The UK is responsible under international law for ensuring that its Overseas Territories meet their obligations arising from international human rights conventions which have been extended to them.

The FCO has submitted in draft form two proposed new constitutions for Overseas Territories: for the Cayman Islands, and for St Helena, Ascension and Tristan da Cunha.

Both draft constitutions contained references in their preambles to the Christian religion.

The preamble to the Cayman Islands draft constitution referred to that Territory as being “a God-fearing country based on traditional Christian values, tolerant of other religions and beliefs”.

There were also reference to “Christian values” in the main text of the draft.

The preamble to the St Helena, Ascension and Tristan da Cunha draft constitution refers to those islands “wishing to continue as communities of tolerance, with respect for government and the law, Christian and family values and protection of the environment”.

The Cayman Islands draft constitution does not explicitly mention sexual orientation as a prohibited ground for discrimination.

In addition, there is an exemption for any claim of discrimination on grounds of, inter alia, “public morality”.

The St Helena, Ascension and Tristan da Cunha draft constitution does explicitly mention sexual orientation as a prohibited ground for discrimination, and it does not contain a “public morality” qualification.

The committee said:

“In correspondence with the then Parliamentary Under-Secretary responsible for the Overseas Territories, Gillian Merron MP, and with her successor in the post after the June 2009 reshuffle, Chris Bryant MP, we expressed our concern at the possible effect of these provisions.

“We are not persuaded by the Ministerial responses we received.

“We note that from those responses it is clear that the references to Christian values were inserted in the drafts at the behest of the Islanders themselves, whilst the FCO in turn insisted on adding the references to “tolerance” with which they are bracketed.

“It is also clear that it was at the behest of the Islanders that explicit reference to sexual orientation was dropped from the Cayman Islands draft constitution.

“The FCO argues that the list of grounds for discrimination is open-ended and thus does not exclude sexual orientation.

“However, the case-law on European Convention on Human Rights Article 14 is clear that sexual orientation is a “status” and that differential treatment on that basis requires particularly weighty justification.

“In our view, the references to Christian values throughout the draft constitution, in conjunction with the public morality qualification on the non-discrimination provision, must give rise to a risk that Cayman Islands courts will not necessarily follow the Strasbourg Article 14 case-law in the apparent absence of anything in the constitution which requires them to do so.”

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1 Comment Add your own

  • 1. Matthew P  |  August 10, 2009 at 6:41 pm

    Nobody in the UK batted an eyelid when Gibraltar’s new constitution (2006) failed to specifically include sexual orientation in its anti-discrimination clause. Though it is likely that in practice the wording would be interpreted in court as covering sexual orientation.

    There’s an ongoing argument going on here at the moment about equalising the age of consent for straight and gay sex. Having the constitution on our side would be very helpful right now!

    Reply

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