Credit: UK Supreme Court

Prior to this historic decision, Trinidad and Tobago was one of some 34 Commonwealth countries continuing to criminalise homosexuality based on colonial-era British laws. Under these laws, consensual same-sex intimacy is punishable by imprisonment.

This major legal victory for international human rights adds to a series of recent challenges to the constitutionality of colonial-era anti-homosexuality laws across the Commonwealth: in recent years, decriminalisation has been achieved in India, Antigua and Barbuda, and St. Lucia, citing an original 2018 Trinidad and Tobago High Court judgment in favour of Jason Jones’ case.

The board stated in its unanimous judgement: “The ability to form a deep connection with another person through an intimate and loving relationship is a vital interest for all human beings.”

In rejecting the state’s argument, the board also asserted that the constitution must protect people in the circumstances in which they live today. The judgment recognises tolerance and broadmindedness as hallmarks of the democratic society established by the Constitution of Trinidad and Tobago.

The key findings of the board in reaching its decision were:

The Sexual Offences Act 1986 (SOA 1986) is not saved law: the judgment makes clear that oppressive colonial era laws that breach fundamental human rights will not be saved just because they are “traditional”.

Savings law provisions must be construed narrowly and the SOA 1986 was not a repeal and reenactment within the meaning of the relevant constitutional provisions (a pre-requisite to fall within the scope of the Savings Clause).

Nor was it rescued by the special legislative procedure by which it was passed (under s.13 of the Constitution): that will not save provisions which breach a citizen’s fundamental human rights if the provisions are not reasonably justifiable in a society that has a proper respect for an individual’s rights and freedoms. All of the judges who considered the case in Trinidad & Tobago had agreed that the provisions were not reasonably justifiable and the Privy Council agreed.

Mr Jones said: “Whilst I welcome this judgment, it does not, however, address the main issues of human rights and equality for LGBTQ+ people which have been denied using British colonial era laws across the Commonwealth and beyond. These laws never reflected who we are as a people and a nation: diverse, multiracial, and secular. They told LGBTQ+ people that we were criminals in our own country. That message ends today.

“On a personal note, I am extremely proud to have led this challenge, but the work doesn’t end here. Let this victory be the rallying call to accelerate the fight for full equality and rights for all people, everywhere”.

Anand Ramlogan SC, counsel for the appellant, said the judgment was “a landmark victory for gay rights, equal dignity and respect for private and family life in Trinidad and Tobago. Gay rights form part of the wider struggle for human rights. Every person is entitled to the protection of the Constitution, regardless of their sexual orientation.

“Our national anthem promises that ‘every creed and race find an equal place’. The principle of belonging must embrace every member of our national community. Every person deserves to live with equal dignity and respect.”

Caroline Edwards of Travers Smith LLP, Jason’s solicitor in the appeal, commented: “This judgment is huge.  It is a victory for Jason, and for his courage and conviction and perseverance throughout. It is also a victory for all gay men and women in T&T, and far beyond, and for all who support the fundamental human rights of all individuals regardless of sexual orientation. Its impact will be felt for years to come.”