An LGBTQ+ rights activist will make legal history this week when his decade-long battle to remove Trinidad’s homophobic laws culminates at the privy council in London, which remains the Caribbean island’s final court of appeal.
When Jason Jones takes his case to its judicial committee, it will be the first time that judges at the centuries-old British institution have ever decided a case to decriminalise same-sex intimacy – in this case ruling on sections of Trinidadian law that derive from the “buggery law” introduced by the UK to its colonies during the British empire.
Those archaic laws, officially enacted in Trinidad in 1925 and carried into its 1986 Sexual Offences Act, were struck from the statute book in 2018, when the high court judge Devindra Rampersad ruled that they infringed upon Jones’s right under Trinidad’s constitution to privacy and equality before the law.
But the landmark ruling was challenged by the then Trinidadian government and overturned on appeal, recriminalising anal sex between consenting men.
“Britain’s Buggery Act was enacted in 1533 and its slave trade began in 1562. Slavery was abolished in 1807 but we are still fighting. We are the only people still criminalised for our protected identities,” said Jones. “I began this journey in 2015. It’s been lonely. I’ve lost all my family and most of my friends. People said I was crazy and it was impossible.”
Jones has, however, won many new friends and supporters along the way. His 2018 victory inspired Trinidad’s inaugural pride event and legal challenges by activists in other countries, notably India. Six Caribbean LGBTQ+ organisations have entered submissions supporting his case.
The laws date back to the reign of Henry VIII, when a medieval ecclesiastical law was passed after the break with Rome into civil law, making “the detestable and abominable vice of buggery” subject to the death penalty. Britain abolished the law in 1967 and has since pardoned gay men prosecuted under it. But it remains in place in many former British territories – a legacy that Jones says affects people’s everyday lives and forced him to leave his homeland in the 1980s and settle in London.
Jones began his case against his country incensed by broken promises to tackle homophobia at the 2015 Commonwealth heads of government meeting. He had the backing of the late Jonathan Cooper, a former colleague of Keir Starmer, whose Human Dignity Trust set the ball rolling.
Supporters of LGBTQ+ rights in Port of Spain, Trinidad, in 2018. Photograph: Sean Drakes/Getty Images
“I’m nothing special,” Jones told a meeting at parliament in May, convened by the MP Bell Ribeiro-Addy and attended by lawyers and LGBTQ+ activists, including the former Love Island winner Amber Rose Gill, whose father is Trinidadian. “I dropped out of college. I survived HIV. All I am is a very angry gay man. I think about all the friends and lovers I’ve lost over the last 40 years. This is a dream we couldn’t dream back then.”
The final decision will rest with a panel of five judges, including the outgoing supreme court president, Lord Reed, and will hinge upon interpretations of the statutes – the savings law clauses – that carried over existing British laws into newly independent states, such as Trinidad and Tobago in 1962, in order to facilitate the smooth transition of judicial sovereignty, and still protects them from challenge.
Jones’s case argues, however, that since British laws against sodomy were repealed by Trinidad in 1986 and replaced with new and harsher laws, including extending the prohibition of anal sex to women, the savings law clause protections cannot apply.
James Hulmes, Jones’s senior counsel, said that since 1986, when the Trinidadian parliament repealed previous legislation and enacted the Sexual Offences Act, it went far beyond simply repealing and re-enacting.
“It was a new piece of legislation,” Hulmes said. “It increased the penalties and changed the definitions in material ways. The preserved laws went out the window when Trinidad brought in fundamentally different laws that are not captured by the savings clause.”
Remarkably, in a case titled Attorney General of Trinidad and Tobago v Jason Jones, the country’s former attorney general Anand Ramlogan will represent Jones as his lead barrister.
Ramlogan, who once represented the Trinidadian government but will now argue against it, said: “This appeal is about more than the rights of one individual or community. It concerns a fundamental constitutional principle: that every citizen is entitled to the equal protection of the law, regardless of sexual orientation.”
He pointed to the “profound historical irony” that removing these “relics of our colonial past” requires asking judges from the country that imposed the laws whether they can “continue to survive under the constitution of an independent democratic nation”.
He added: “Homosexuality remains a divisive issue within our society, and successive governments have been reluctant to embark upon reform in the face of religious and cultural opposition.”
But while religious opposition is self-evident – the Trinidad and Tobago Council of Evangelical Churches has joined the case to oppose Jones – most Trinidadians support gay rights, and the Equal Opportunity Commission, a government body, joined the case to support Jones. Trinidad has gay cabinet ministers, a transgender senator, LGBTQ+ icons and national treasures. The prime minister, Kamla Persad-Bissessar, vowed in her first term to “put an end to all discrimination based on gender or sexual orientation”.
The privy council set its own anti-discrimination precedent last year, upholding legislation legalising same-sex civil partnerships in the Cayman Islands after a similarly tortuous case brought by the couple Chantelle Day and Vickie Bodden Bush. Rights organisations welcomed the finding as a positive break from a previous judgment denying same-sex marriage in Bermuda, which lawyers claimed placed the religious rights of the majority over those of a minority sexual orientation. That case is now before the European court of human rights.
The privy council’s judgment, expected in September, will mark the end of a long fight for Jones.
He said: “I’m getting out of the cut and thrust of advocacy. I’ve done my bit.
“I’ll focus on developing programmes to train the next generation of Jason Joneses. Most activists turn to activism through desperation, not inspiration. I want to inspire.”
