Post 312.

With its latest publication, “Justice through a Gender Lens”, the Judicial Education Institute has signaled its intention to resist gendered biases, stereotyping and discrimination in our courts. This is because these can result in decisions, and their consequences, that are ultimately unfair, dehumanizing and unconstitutional.

Stereotypes may be directed at women, men and transgender persons, ultimately denying them equality and justice. For example, men – like women – are meant to naturally fulfill the role of nurturer. Yet, gender stereotypes that associate manhood with being only a provider may lead to court decisions regarding custody that don’t reflect men’s equal responsibility and role as caregivers. This could lead to feelings of rejection among fathers, and to the development of men’s groups organized around their anger.

In another example, sex workers may find it more difficult to prove they have been raped because victims are often required to be respectable and above moral reproach to be believed or not held responsible. However, like other women workers, they do not give up rights to consent and freedom from violence, even in transactional sex encounters.

This position alone goes against common stereotypes about which women are truly undeserving of male sexual assault, and which women can be violated with greater impunity. Here, sexual stereotypes create a biased system to which different women cannot equally turn for justice.

Gender biases of all kinds exist in our courts. In a Caribbean Judicial Officers survey in 2015, 53% of Judicial Officers surveyed believed women should be given custody of children and 41% thought that a man’s primary role is to provide financial support for his family.

This is fascinating because it reproduces women’s unequal responsibility for child care and all the planning, time management, emotional and mental labour, daily and nightly exhaustion, and career sacrifice involved. It also wrongly assumes that women have not historically also carried the burden of financial support for families across the Caribbean. The myth of the male breadwinner is illustrated every time men fail to provide regular and sufficient maintenance support to meet children’s needs, which is a widespread social phenomenon and familiar to Judicial Officers themselves.

In a Trinidad and Tobago survey of Judicial Officers, 44% of those surveyed believed homosexuality was against ‘God’s laws’ while 52% thought that attitudes regarding appropriate roles of men and women influence Judicial Officers’ decisions.

Yet, both our local courts and the Caribbean Court of Justice are upholding rights to a legal system in which personal or religious beliefs cannot prevent access to impartiality, respect and dignity for all. In the JEI’s publication, this includes referring to transgender persons as they themselves identify. It also includes enabling litigants to access courts even when they are dressed in ways that do not fit stereotypes regarding how a person of their sex ought to dress. After all, the nail in the coffin for this country surely cannot be people’s choice of clothes.

The TT Council of Evangelical Churches may maintain that God created only two genders, but this is a specifically Biblical position, in a multi-religious society which occupies First People’s land, and in a world in which many other cultures hold different and equally valid beliefs regarding gender.

In both Indian and African religions, there are gods and goddesses which combine male and female qualities, characteristics and identities. In our modern country are also people for whom secular decision-making protects from patriarchal and theocratic authoritarianism, and the self-righteousness of its violence and violation.

The global conventions and treaties to which we are signatory, and even our 1976 Republican constitution, create state obligation to recognize the human rights of every individual and to prevent discrimination on the basis of sexual and gender orientation, not just race, creed or religion.

This isn’t about a current push to normalize LBGTQIA behavior in the country. It’s about strengthening tolerance and inclusion, extending trust in our institutions, and enacting due protection from prejudices that harm.

It’s heartening to see the judiciary deal a severe moral blow to gender bias and the vulnerabilities it produces. Righteousness exalts a nation when state institutions, whose sole purpose is to ensure justice, show that they hold this expectation in good faith.

It will be interesting to see if and how the Gender Equality Protocol for Judicial Officers plays out in the real life of the courts. For now, a whole guideline exists to enable judges and others to recognize something very simple.  Each of us wants the right to live safely and equally as we choose.

 

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Post 309.

Is justice for one, justice for all?

In the Caribbean, we have a way of dividing ourselves from each other, and from each other’s struggles. What if, instead, we thought that each of these struggles nurtured better chances for fair treatment for others. How might that make us invest in each other’s pursuit of rights, even when they seem at odds with our biases, fears or differences?

It’s a good question to ask in response to last week’s historic ruling of the Caribbean Court of Justice. Four Guyanese transwomen, Gulliver (Quincy) McEwan, Angel (Seon) Clarke, Peaches (Joseph) Fraser and Isabella (Seyon) Persaud, spent almost ten years challenging a charge and fine for “wearing women’s clothing for an improper purpose” in a public place. They spent four nights locked up for this minor crime. They pressed on despite the prejudice of the trial magistrate who lectured them about being confused about their sexuality and their status as men, and urged them to go to church.

This wasn’t the first time they had experienced the painful edge of a post-emancipation law, established in 1893 as another oppressive act of legal coercion. Such vagrancy and loitering provisions aimed precisely at denying freedom to Africans regarding their bodies, labour, gender, intimacies, religion and rights.

Indians, Chinese, Portuguese and others were also in Caribbean colonies by this time, with their own intersections of gender, sexuality, class and religion. All were now also brought again under the iron fist of colonial authority and its limits on our fundamental desires to be respected as self-determining individuals and, despite formidable hurdles, to be free.

Imagine for a second, then, that Gulliver, Angel, Peaches and Isabella showed unbelievable valor to end another vestige of colonial authority that continued to sharpen its blade right up until the twenty-first century. Imagine that, in doing so, they didn’t win a victory just for themselves or for transpersons or for gender diversity.

Step out of your biases, fears and framework of us and them for long enough to also see that their struggle edged forward free Caribbean people’s resistance to colonial rule, discriminatory laws and dehumanizing policing practices.

The highest Caribbean court struck down Guyana’s crossdressing law, arguing that it violates the Constitution of Guyana and is void. It found that the law invalidly criminalized intentions, not proven actions. It illegitimately defined some forms of clothing as objectionable. It lacked sufficient clarity for ordinary people to understand what conduct is prohibited. It gave police wide and almost arbitrary discretionary powers, creating real risks of victimization. It treated transgender and gender non-conforming persons unfavourably because of their gender expression and gender identity. Finally, the CCJ affirmed the validity of inclusion of advocates and social justice movements as interested parties.

The judgment affirmed a powerful promise that those most poor, marginal or powerless could, nonetheless, legitimately expect the system to defend them. As CAISO director Colin Robinson put it, “This is an historic ruling, particularly because it was brought by working class, transgender women who had the bravery and courage to seek justice from a system that does not usually work for them”.

Haven’t so many, particularly among the working classes, looked around and felt, as Isabella Persaud, one of the appellants said, “We are always treated like trash.” Their cause shares ground with Hindus, Muslims, Spiritual Baptists, Rastafarians, and poor Indians and Africans around the region who have turned to the courts for protection against being unfairly targeted or denied equality, respect and inclusion.

To quote the Hon. Mr. Justice Saunders, newly appointed President, “No one should have his or her dignity trampled on, or human rights denied, merely on account of a difference, especially one that poses no threat to public safety or public order.”

This line, and its logic, is one with which we all can agree, for it speaks not just to these four Caribbean citizens, but to each of us, and an ideal we surely must enshrine as necessary. Justice, however, isn’t only won in the courts. It’s also won in our nod to each other’s humanity in the streets. AS IGDS’ Angelique Nixon, acknowledged, “as important as laws are, we also have to do work to transform the culture to create more acceptance and tolerance” locally and regionally.

Regardless of who is expanding our access to justice, but especially when they are poor, working-class and beyond the pale of respectability, being Caribbean requires us to value the victory of those creating our regional future of greater justice and equality.

 

Post 258.

Last week, behind its glass façade, the CCJ was the site for a historic battle not yet won. These are hard words to write given that a judgment was already handed down ordering the Belizean state to return ancestral land to the Maya people. So, if the battle was won, why still fight in court?

Put yourself in the footsteps of the Maya as you follow this story. In 2015, the CCJ affirmed the right of 39 Q’eqchi and Mopan Maya indigenous communities, in the Toledo District of southern Belize, to lands that they have historically used and occupied.

Up to last week, those lands were not legally returned, meaning Maya land rights remain unprotected, forcing the Maya people to return to the CCJ to press the Belizean government to abide by the ruling.

Maya community organizations also appealed to the courts to protect their lands from multiple concessions given by the government of Belize to oil, logging, grazing and agricultural interests. These incursions occurred without the Maya people’s free, prior and informed consent, and without any redress. Not only has the Belizean government not returned Maya village lands, it continues to destroy and parcel out leases for land not legally, historically or morally its own.

Meanwhile, the government of Belize was ordered to develop a mechanism to recognize Maya land rights claims in consultation with the Maya people. A Toledo Maya Land Rights Commission was established, but no elected or designated representative of any Maya community or body in Belize has ever sat on the Commission. It is run by state officials who are not sensitive to customary protocols of engagement, good faith or international law. The Maya must meet the Commission on its terms. Imagine a paper judgment which has not guaranteed justice, but been met with delay and denial.

The $300 000 Belizean dollars which the CCJ directed the government of Belize to invest in achieving compliance is being spent, on a range of costs including rent, vehicles, consultations, administration and salaries, without any compliance achieved. Recognising insult added to injury, last week, the court mandated 50% go directly to the Maya people.

They don’t have resources to keep going to the Supreme Court, and neither should the Belizean people be putting their resources to defending state violation. Maya organisations want the courts to impose sanctions and fines against the state, and have also have called for a tribunal with teeth to resolve these issues out of court. Imagine, three years ago, this is a battle they thought they won.

Cristina Coc, spokesperson for the Mayan Leaders’ Alliance, and a long fighter in this struggle, said to me, “This case is being watched by Indigenous communities all over who are using this case to leverage their own land claims, and it was highlighted in the celebrations of the 10th anniversary of the UN Declaration on the Rights of Indigenous Peoples.” This is happening in our midst in Port of Spain. The world is watching, are we?

Carrying the burden, costs and tears of this with them, Maya communities continue to organize, demarcate their traditional boundaries, and envision sustainable alternatives which put ancestral reverence for nature at the heart of a Maya economy. Cristina’s heart was heavy, but her words committed: “Maya people have to remain resilient in face of these challenges, uphold our wellbeing, be a self-sustaining people, resist these violations, and protect our lands, territories, culture and identity.”

Their struggle may seem far from yours, but injustice is something with which we can all identify. The Belizean government seeks to replace Maya victory with defeat. The injustice of a battle already won, yet still having to be fought, reflects on us all from the CCJ’s glassy front on Henry Street.