Law banning sexual orientation discrimination put on hold
Religious groups say it would legalise homosexual relations
By Patrick Denny
January 23, 2001
The Guyana Council of Churches (GCC) has mounted a rearguard battle to have the amendment to the Constitution banning discrimination on the grounds of sexual orientation reversed charging that it would be a de facto legalisation of homosexual relations.
Experts have differing views on this position and questions have also been raised about why the religious community did not oppose the provision when it was first floated at the Constitution Reform Commission.
The Guyana Democratic Party (GDP) yesterday joined the outcry by the religious bodies over the amendment.
The Constitution (Amendment) (No.5) Bill, which was approved by a 55-0 vote on January 4, was piloted through the National Assembly by Parliamentary Affairs Minister, Reepu Daman Persaud, who is a leading member of the Hindu community.
The provisions of the bill amended article 149(2) of the Constitution adding thirteen grounds on which discrimination is prohibited. The amendment was recommended by the Constitution Reform Commission (CRC) on which the Christian, Hindu and Moslem religions were represented.
A delegation from the GCC met and obtained a commitment from President Bharrat Jagdeo that he would withhold his assent to the bill to give the churchmen time to lobby the political parties to have the amendment dropped.
Chairman of the GCC Bishop Juan Edgehill told Stabroek News that approaches have been made to the parliamentary parties for the change to be effected.
In a statement yesterday the GDP said "the passing of the bill that legalises same sex marriages is atrocious and we hereby condemn the attempt to legalise this type of sexual abomination." The provision does not legalise same sex marriages.
PPP/Civic General Secretary Donald Ramotar told Stabroek News that he had explained that his party had no intention of offending any of the religious beliefs of the churches. He said that the delegation was assured that if there was consensus among the parties, he was sure that the amendment could be reviewed and amended appropriately.
Prepared to revisit
The People's National Congress (PNC) has confirmed that a delegation met with it. Raphael Trotman, a member of the PNC central executive committee, told Stabroek News that the party had assured the delegation that if there was agreement among the parliamentary parties it would be prepared to revisit the legislation. "We are mindful of the concerns expressed and the criticism levelled against the Parliament and so as not to be insensitive (the PNC) would be prepared to continue the discussion until the issue had been resolved."
He asserted that in passing the bill, the parliament was merely giving effect to the recommendations of the CRC, which were based on submissions from organisations and individuals.
"We were giving effect to the CRC recommendation that had recommended that apart from discrimination on the grounds of race several other prohibitions should be added including that of sexual orientation."
He asserted too that in supporting the bill, the PNC had no intention of offending any section of the community and was guided by the fact that the religious representatives on the CRC had not raised any objections or caveat concerning them.
Merit in concerns
University of Guyana law professor, Keith Massiah SC, who led the drafting team that drafted the amendments, told Stabroek News that he did not believe that the interpretation by the religious community of what was intended is correct. But while not supportive of all the views of the churchmen, he believes that there is merit in their concern. Massiah said that the law, which makes homosexual acts between men an offence would be unconstitutional, as it would contradict the Constitution. But with specific reference to the amendment, he asserted that it did not seek to make homosexual acts lawful as some people think.
He observed too that it was good to know that there are people who are concerned enough about these matters to tell the authorities that they must take a second look at them.
Haslyn Parris who was secretary to the CRC and coordinator of the Oversight Committee blames the belated reaction of the religious community on the government's failure to implement a public education programme to explain to the people the nature of the changes being made to the Constitution.
Bishop Edgehill said that the Council of Churches was aware of the need for the other amendments to be enacted so that the March 19, elections could be held under a revised constitution. As a consequence he said that approaches had already been made to Persaud and to the four parliamentary parties. A public education programme is also to be mounted he said, to mobilise support for the deletion of the prohibition from the legislation. One such activity to raise public awareness about the issue is a prayer meeting tomorrow at the Trinity Methodist Church beginning at 7:00 am and which should last for about an hour. The public is invited to attend.
Bishop Edgehill observed that while the amendment made nice reading on paper, it would be problematic to implement. He explained that while the Guyana Council of Churches believes that the government must protect the rights of every citizen, it should not impose a responsibility incompatible on the individual that was contradictory to their belief system. For example, he said that as a religious leader, he had to hold to his religious doctrine, which was diametrically opposed to homosexuality. He said that no law could compel him to marry two persons of the same sex. He noted that the passage of the amendment would open the church to charges of discrimination if it performed heterosexual marriages and refuse to sanction same sex marriages.
Asked how compatible with its opposition to homosexuality was the injunction on the Church to be compassionate, Bishop Edgehill said that when the doors of the church are open anyone, including those struggling with their sexual orientation, was free to come in for counselling and ministry. "It is not a hate campaign against homosexuals that we are waging."
Bishop Edgehill observed too that the amendment would also require consequential changes in a lot of areas. One such area was the Defence Act, which bars persons who are homosexuals from joining the army on the grounds that their sexual orientation could lead to the destruction of its morale.
He said that the ban could open the floodgates to a host of problems. For instance, the ban would mean that a teacher who is a homosexual could not be barred from a teaching appointment or from propagating views on homosexuality. The ban, he says, would mean too that on government forms the question as to whether a person was a male or female would have to be deleted and the definition of the family would have to be revised to take account of homosexual relationships.
An army spokesman told Stabroek News that if the amendment became law the army would address the situation but that as the law now stands, if a person was proved beyond a shadow of a doubt to be a homosexual and engaged in a homosexual act that person would be dismissed from the army. But its treatment of a person with a heterosexual orientation would be different. The spokesman said that the soldier would only be disciplined for committing such an act where the army deems the circumstances inappropriate. For example, he said if the act was committed in an army office, the offenders would be sanctioned but they would not be if it were to be committed in a hotel.
About the lateness of its objections, Bishop Edgehill claimed that at the level of the Constitution Reform Commission (CRC) no group or individual made any written or oral proposal asking for the sexual orientation prohibition to be included. Also he claims that the minutes of the CRC proceedings indicate that there were no discussions or opportunity for a consensus to be adopted. Parris disagrees that this is so asserting there was an intense debate on the fundamental rights section of the Constitution and that both the CRC and the Oversight Committee had the benefit of advice from experts in human rights from the United Nations. Massiah who was also one of the legal advisers to the Commission remembers that there was concern about the contradiction that would arise if the Constitution was amended and the other laws were not brought into line with it.
Thin edge of the wedge
Bishop Edgehill fears too that the amendment could be the thin edge of the wedge as once it was the law, he was sure that there would be a relentless lobbying and action by homosexual groups to push the limits of the amendment.
Massiah believes that the law which made homosexual acts between men an offence could be struck down as unconstitutional under Article 8 of the Constitution. Article 8 states that the "Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void."
Anglican Bishop, Randolph George, told Stabroek News that while he was yet to see and study the amendment in question and would hesitate to comment definitively, as Anglicans "we would encourage the removal of the ban on discrimination on the basis of sexual orientation."
"The Church is a place of compassion", he contended, adding that there were people who were struggling with this problem who were in need of the Church's compassion and understanding. Same sex marriage did not enter into this consideration, he asserted but conceded that a fear was that some people would use the discrimination prohibition to perform same sex marriages.
Parris told Stabroek News that the fundamental rights section of the Constitution protected the individual from the excesses of the State. It did not address the question of a person's right being infringed by another person. That, he said, would have to be pursued under other articles of the Constitution. An example, he said, was the constitutional prohibition on discrimination against religion, which prohibits a teacher being denied an appointment by the State on the grounds of religion. However, there was nothing to prevent the authorities at a private school set up by the Hindu community insisting that the teachers they hire must be Hindus.
Massiah, however, believes that while the Court could order damages for the breach of a person's fundamental rights it was loathe to order specific performance where the issue related to the employment of a person.
Parris agreed that the amendment would have some implications for the laws against buggery now in place. That law as it stands does not discriminate against heterosexual or homosexual acts of anal intercourse whether or not it was a consensual act. Amending the law would in no way be an endorsement of homosexuality. "The absence of a prohibition in law, in no way means encouragement of an act."
He bemoaned the absence of a Law Reform Commission, which he said would have been keeping all the laws up to date.
Parris and Massiah blame the problems caused by the lack of knowledge about the changes to the Constitution on the failure of the government to implement a public education programme. Parris said that an attempt by the Guyana Association of Women Lawyers to implement such a programme was frustrated by the government's failure to make the necessary resources available. Also, he said, that attempts to access funding from the National Democratic Institute foundered on the lack of resources. He pointed out too that the government has said that the educational programme was not a task for the Guyana Information Services.
Because the government was not persuaded on the urgency of mounting a public education programme, eighteen months after it was submitted, the 2,000 copies of the CRC report that was recommended should be made widely available are yet to be printed. He also said that while the records of the Commission and Oversight Committee were public records the executive secretary to both bodies had not been overwhelmed by requests for access to them.
Follow the goings-on in Guyana
in Guyana Today