Post 444.

I THINK a lot about our obligation to speak out on matters that impact our society, and how we hold ourselves to account. Public institutions can be our best defence against unfairness, but they have to be held to that potential and to our highest ideals. As my father would often say, “Who will guard the guard?”

The Equal Opportunity Act strengthens our right and ability to guard those highest ideals and hold us all to them. Its value and necessity are so apparent at this time as a progressive piece of legislation that should be protected and can be expanded toward an inclusive vision of equality.

It’s important that we uphold the ideals of the act in guiding decisions of employers, schools, landlords, state boards, medical-care providers and others, and relationships among the public and even among public officials.

The Equal Opportunity Act is empowered through two institutions: the Equal Opportunity Commission (EOC) and the Equal Opportunity Tribunal (EOT). Despite popular confusion, the two institutions are independent and distinct, having completely different leadership, boards, mandates, staff, budgets, space and purposes.

The tribunal does not provide the broader functions of the EOC, and the two institutions do not function as one. As one example, the EOC and EOT currently hold opposing positions with relation to sexual harassment, with the EOC outlining that it constitutes a form of discrimination on the basis of sex, because the sex of the person is the first and key reason why she or he is harassed by another person (regardless of her or his own sexual orientation).

The EOT disagreed, and the case is currently before the Court of Appeal. It is possible at times for the EOC and the EOT to disagree on interpretation of the act and other viewpoints. Fortunately, the justice system exists to provide checks and balances so that the spirit of the legislation is implemented to promote equality for all.

Guided by the act, the Equal Opportunity Commission represents a belief in freedom from discrimination, through uncompromised and strategic advocacy, civil society solidarity and partnership, public education, and investigation of claims of discrimination toward agreed resolution and redress. It is committed to expanding human rights. It is a people’s institution.

If you are experiencing discrimination based on inherent characteristics that are covered by the act (such as race, ethnicity, disability, marital status, origin including geographic origin and religion), the EOC will assess and establish your case, and can offer conciliation, without charge.

If you are not protected as yet under the act, and should be, the institution fearlessly advocates for inclusion, and supports your community’s organising, leadership and vision for a life without inequality or unfair exclusion.

The Equal Opportunity Tribunal is a court of law and its judge, who also serves as its chairman, is a High Court judge. It determines complaints and, where appropriate, penalises offenders for discrimination, victimisation or offensive conduct in the way of a civil court. Through this judicial function, it is also mandated to promote equal opportunities for people of unequal status.

The last weeks’ widespread public discussion about exclusion and discrimination provides much for us to recognise. The public wants institutions that show they care when it matters. It considers silence in the face of administrative injustice to be complicity, and its disappointment is vicious. We must be very clear where we stand, whether as individuals or an institution, when there is or even appears to be wrong. Public confidence is hard won and easily lost. We must guard ourselves.

The EOC offers much-needed reassurance because of its commitment to the act above all else, particularly when public trust in representatives, leaders and decision-makers feels strained and stretched thin. As a mother and citizen, I’d expect nothing less from such a public institution; a presence that steadies a sense of hope and a voice that continues to be heard.

The EOC’s work and mandate continues, buoyed by a population whose reaction reminds us how much it values fairness, and fearless commitment to human rights. The EOC denounces discrimination, but also calls for protection to LBGT people and on the basis of age and health status, thus broadening our human rights landscape and leading on the basis of the act’s vision.

Meanwhile, as a defender of human rights and with responsibility to a growing generation, I see the current lessons, and what it takes to gain and lose respect and trust from those looking to us from across the nation.

Post 426.

AS IT’S a month when LBGTI+ community presence and pride is commemorated, it’s good to think about how a less discriminatory world is being envisioned and created. 

Over the last decades, there has been a turn to economic justifications for ending inequities and protecting human rights. For example, the economic case for counting the contribution of women’s housework to GDP, for creating greater parity in women’s corporate leadership, and for ending violence against women and girls were all strategies for improving gender equality. 

There are problems with this approach, of course. It seeks to market public goods such as inclusivity on monetary terms, making justice for marginalised or less powerful groups seem to need legitimation by how others, the majority or those more powerful, will benefit. We’ve been talking about the risks of such neoliberalism for decades in the feminist movement. What if climate destruction or war makes economic sense, what are the implications of wealth being our dominant ethical measure? 

Another hard lesson is that change remains difficult even when there is a clear economic case – such as in relation to LBGTI+ rights. It signals to us not to cede terrain to narrow economistic definitions of each other and our societies as rationally profit-seeking. For example, countries may rather lose foreign exchange than become safer for LBGTI tourism. Religion, family socialisation, patriarchal stereotypes, resilient biases and misplaced fear all play roles here.

Although there are correlations between stable economies and safer societies, wealth by itself doesn’t stop prejudice. In these contexts, nations have also consciously embraced social norm change. Even as a business case is made, therefore, so too must a case for societies in which non-discrimination, peace and justice are core ideals and are valued on their own terms. God doesn’t say to love your neighbour as you wished to be loved because it will make us all prosper. It is an individual and social good because it’s the right thing to do. 

That said, the recent report, The Economic Case for LBGT+ Inclusion in the Caribbean, estimates that “LGBT+ exclusion in the English-speaking Caribbean costs between USD 1.5 billion and USD 4.2 billion per year” which is “between 2.1% and up to 5.7%” of our regional GDP. The report focuses on diminished human capital and labour output, health disparities, experiences of violence, and constraints on tourism in 12 Caribbean countries. Tourism is highly problematic, with significant ecological and human costs even as it brings income, so I won’t be championing it here. 

I’m more compelled by the argument that “LGBT+ skilled workers migrate and stay in more open societies – leading to lost human capital, productivity and output, as well as reduced competitiveness” here at home. Discriminatory laws and negative attitudes deplete labour productivity and employee mental health, create conditions for workplace harassment, and add to the immense “brain drain” that’s already a major loss for the region. 

For those who remain, there are “numerous economic development challenges for the LGBT+ Caribbean community – including within the family, schools, labor markets, healthcare, housing, and financial services.” That’s not to say that we can’t live here, but that so many could be contributing more than allowed, including through both public and private sector commitment to non-discrimination and through improved access to justice. 

The State has a key role and, since 2014, the

has recommended that the Attorney General amend the Equal Opportunity Act to include sexual orientation as a protected status. This is because of the economic and psychological cost of stigma and exclusion on LBGTI+ people and their families, particularly those who are part of transgender communities. 

The religious bodies are one litmus test of whether making an economic case works. As the report puts it, “two-thirds of all participants noted the stifling impact of the Church on the inclusion of LGBT+ people in society, particularly its hold on governmental laws and policies to uphold a status quo of exclusion. For example, it has been widely reported that the Church exerts influence over elected officials to scrap bills from becoming law that would give protections to LGBT+ people.”

The Model LGBTI+ Workplace Policy for Trinidad and Tobago, produced by CAISO: Sex and Gender Justice in partnership with the Equal Opportunity Commission and the British High Commission, Port of Spain, is an excellent guide for highlighting how workplaces can address harassment and discrimination. Doing so is good for business and labour, and upholds the good of fair opportunity. Countering stigma with pride, civil society presses on.

Post 349.

The Darryl Smith fiasco seems like a model example of cover up after cover up. The fact that there’s still no commitment on behalf of state officials or political leadership to provide the truth of the matter, leaving more questions than answers, signals lack of commitment to ensuring that sexual harassment is a form of injustice that will not be tolerated or excused.

This is not surprising, if this was an issue taken seriously, political parties would all have their own sexual harassment policies, but the fact that these are as far away as legislation glaringly shows exactly how much impunity is an accepted reality.

We’ve heard about faults in the process of producing the report, but not that we can rely on the government and ministry to ensure that the public knows what really happened. It’s like the apparent faultiness of the report, which is based on the argument that Mr. Smith wasn’t given fair hearing, is more important than whether an employee of the ministry experienced sexual violence, which is what sexual harassment is, at the hands of a still-sitting Member of Parliament.

It’s like the lack of clarity about whether Michael Quamina was advising Mr. Smith or the ministry is as excusable as the $150 000 of public funds spent without accountability for the correctness of the process or its outcome. Who will ensure that the public knows the truth?

At this point, the hope seems to be that the whole thing will blow over and no answers will ever have to be provided. Sexual harassment legislation, if it ever comes, will not address this present injustice so the call should be for immediate answers as much as for longer term solutions. Those solutions include legislation, but require much more.

As the Equal Opportunity Commission, in its Guidelines on Sexual Harassment in the Workplace, has rightly stated, “It should be noted that criminalising sexual harassment does not address the problem of sexual harassment in the workplace as it does not speak clearly to employers, does not advise them of their duties, nor does it provide recourse to the victims.The criminal law does not achieve these goals”.

The public service now has a sexual harassment policy which requires the state to embark on widespread effort to create buy-in so that state agencies understand their responsibility, not only to victims, but also for creating workplace cultures that prevent such sexual violence in the first place. The key to preventing sexual harassment is for employers and managers to adopt a zero-tolerance position. This position is represented by having trained harassment response teams, inclusion of sexual harassment protections in collective labour agreements, informal and formal grievance procedures, and counselling support.

All these are necessary, but still not sufficient. While sexual harassment may be committed by an individual of any sex, largely it is a form of gender-based violence perpetrated by men, whether in workplaces or on the street. Primarily, it’s what Jackson Katz would refer to as male violence against women, often younger or more vulnerable or with fewer economic options. Ultimately tackling this issue requires change in men’s engagement with gender-based violence – whether as perpetrators or as allies in creating change.

The Prime Minister should have used this moment to explicitly state that sexual harassment is a form of labour exploitation that his government is committed to preventing, and can be held accountable for in terms of its leadership on this issue. The AG should have committed to legislation that doesn’t leave women mired in the limitations of a whistle-blower process.

I was surprised at accusations of women’s complicity in this injustice, and would like to instead take a break from demanding women’s responsibility for fixing everything and welcome men’s role in speaking out and taking action on these issues in a way that sees real, measurable change.

Post 279.

An attuned ear hears a shackle when it falls. It’s a surreal sound, when an instrument of inhumanity hits the ground broken, clanging with its iron weight of history. Instinctively listen for the heart-piercing exultations of emotion that echo out powerfully. Also be stopped still by a black hole of quiet horror that you may yet again hear that shackle clink close around a human body.

If the pores on your skin raised, as did mine when I heard Justice Devindra Rampersad’s judgment on Thursday, it’s because I never anticipated that a shackle’s fall could sound and feel like the force of a supernova when it collapses, its vibration sheer disintegrating your heart, leaving you in breathless tremors and shaking tears.

The boldness of the judgment and the interval of freedom it created for the first time in hundreds of years, like a slash in colonial space-time continuum, can’t be anything but celebrated.

There are thousands of bodies in the nation which had been existing in fear, shame and silence and which, for the first time, felt included, protected and free. It is like the future time-traveled and arrived to rock the vibrational field of the present, in a way so many citizens dared to dream, but despaired they wouldn’t live to see.

Justice Rampersad’s judgment in Jones v TT ruled that Sections 13 and 16 of the Sexual Offences Act, which criminalize buggery, or acts of anal sex, and same-sex genital touching, are unconstitutional. He held that the “savings clause”, which retains the legality of colonial law despite our republican status, doesn’t apply. This is because, in 1986, the Sexual Offences Act was repealed and “replaced”, thus creating new, post-1976 law.

Also new law was created with the unprecedented extension of penalties for buggery from 5 years to 25 years and creation of a new prohibition, titled “serious indecency”, and explicitly meant to criminalise lesbianism for the first time (by legislating that only men could have sexual access to women). In other words, this is new law, not simply a re-enactment and continuity from 1925.

Second, he argued that even if the savings clause could hold, its intention was to continue and preserve protections of citizens’ rights in the move from colonial subjection to independent nationhood, not deny rights, discriminate or victimize. In this case, relying on the savings clause as justification goes against its spirit.

Additionally, he agreed that Jason Jones’ right to privacy was denied, observing that such privacy had not been conceptualized in early colonial law, but was now an accepted ideal. Use of the savings clause to deny that right again defies its intention.

Regarding the Act itself, its violation of Sections 4 and 5 of the constitution were already acknowledged by parliament in 1986. It is possible to infringe upon individuals’ constitutional rights, under Section 13 of the constitution, but the burden is on the parliament to fully justify its necessity, which it has not done. Passage of legislation by 3/5 majority, however procedurally legitimate, isn’t enough.  Religious or majority view and public opinion isn’t enough. Political expediency is far short of enough in the face of signed international conventions and global and liberalizing standards of dignity, decency, equality and human rights. Claiming parliamentary prerogative isn’t enough, or might be enough in Britain where no constitution exists so parliamentary law is highest authority, but not in Trinidad and Tobago where the constitution should be supreme.

In other words, Jah bless our republican status and the possibilities for future-facing Caribbean jurisprudence. Why rely on British law when we have our own constitution? Why still carry habits of prisoners when we are freed from such imprisonment?

Without the savings clause as a defense, the 1986 Act was always unconstitutional and unjustified, and unreasonably and arbitrarily denied rights to privacy, family, intimacy and equality to all citizens and couples. Its legitimacy was founded on its own fiction and presumptions, like the emperor with no clothes.

To write that race, colour, gender, age or sexual orientation is not all that encompasses a person’s soul nor their value to society or themselves is to wield something other than the master’s tools to dismantle the master’s house. This is the ultimate dream of Caribbean emancipation.

For this to occur in real life and in our generation is overwhelmingly beautiful, and feels cosmically huge. On appeal, we hope the disturbing metallic edge of manacles, re-clasped on those who call for our love, is not something we have to hear. To them, do not turn a deaf ear.