Features — 17 August 2016 — by Adele Ramos
“Sex” redefined 20 years ago, and Belizeans didn’t know it!

BELIZE CITY, Wed. Aug. 10, 2016–The churches argue that there are only two sexes: male and female; however, Simone Hill, president of the Universal Belize Advocacy Movement (UNIBAM), refers to LGBTIQ – the short acronym for lesbian, gay, bisexual, transgender, intersex, and questioning. The Supreme Court of Belize is now acknowledging, in its ruling handed down today in favor of homosexual Caleb Orozco, that the term “sex” in Belize’s Constitution was deemed to have a different meaning as far back as 20 years ago. However, most Belizeans had no clue that the reading of the Constitution, particularly where it forbids discrimination on the basis of sex, now includes one’s sexual orientation.

The Inter-American Commission on Human Rights (IACHR), an organ of the OAS, defines sexual orientation as “each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender…”

When Nigel Hawke, deputy Solicitor General, argued the Government’s case in the suit brought by Orozco, he contended that “sexual orientation” is not expressed in the Constitution of Belize.

However, Chief Justice Kenneth Benjamin told the court today that when Belize acceded in 1996 to the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966 which came into force on 23 March 1976, it “tacitly” accepted the new meaning of the word “sex” to include “sexual orientation,” changing the interpretation in domestic law.

That is because back in 1993, the UN Commission on Human Rights had declared that the prohibition against discrimination based on sex in the International Covenant on Civil and Political Rights included discrimination on the basis of “sexual preference.”

The published information indicates that the covenant was signed under the Esquivel administration. Amandala contacted the former Prime Minister, Dr. Manuel Esquivel, today, and he told us that the matter would have been handled by the Ministry of Foreign Affairs.

Esquivel indicated that he does not recall the matter of “sexual preference” coming up at the time, as it was not a live issue.

Prime Minister Dean Barrow was the Minister of Foreign Affairs in 1996, when Belize acceded to the treaty.

In September 2013, while the country waited on the court’s ruling on the challenge to Belize’s sodomy law, Barrow gave an Independence Day speech in which he hinted at the Government’s support for LGBT rights. His wife, Kim Simplis Barrow, has fully endorsed the CJ’s decision.

Barrow said that, “…Government cannot do is to shirk its duty to ensure that all citizens, without exception, enjoy the full protection of the law. After all, the Belize Constitution that affirms the supremacy of God also affirms fundamental rights and the dignity of the individual human being.”

“That same Constitution further declares that all persons are equal before the law and entitled to non-discrimination, to freedom from interference with their privacy, and to freedom from unlawful attacks on their honour and reputation,” Barrow said.

In court on Wednesday, Chief Justice Benjamin cited two articles of the international covenant, articles 2 and 26.

Article 2 states that, “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex [including sexual preference], language, religion, political or other opinion, national or social origin, property, birth or other status.”

Article 26 states that, “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex [sexual preference], language, religion, political or other opinion, national or social origin, property, birth or other status.”

We tried to get official information on the ratification of the covenant from the National Assembly, but as we go to press, we were informed that no official information could be found to indicate that it had indeed gone through ratification by Belize’s Senate.

The significance of the covenant which Belize signed two decades ago was not raised when Belizeans debated moves by the Organization of American States (OAS), the world’s longest-standing hemispheric organization, to get its member states to sign two legally-binding instruments: the Inter-American Convention on Racism, Racial Discrimination and Related Forms of Intolerance; and the Inter American Convention Against All Forms of Discrimination and Intolerance.

At the time, there was public debate over the language of the documents, which explicitly shifted from including merely one’s “sex” to including one’s “sexual orientation” under provisions guaranteeing fundamental rights and freedoms. Belize Foreign Affairs Minister, Wilfred Elrington, did not sign the treaties.

Back in 2004, when United Nations countries debated the UN Convention on the Rights of People with Disabilities, there was a proposal by Canada to include “sexual orientation” in the preamble; however, the proposal was rejected after debate and the original language was retained in that convention.

Since then, though, the language of texts addressing fundamental human rights have changed—in the same way that the language in Belize’s gender policy—a document funded by the UN—has changed to now include sexual orientation of persons and anti-discriminatory provisions.

In 2014, Belize was preparing to file its first report on the implementation of the ICCPR; prior to that, it came under heavy pressure to decriminalize homosexuality.

Of note is that in 2012, the UN Human Rights Committee asked Belize to, “Please state the measures being taken to de-criminalize homosexuality and to repeal section 5(1) of the Immigration Act, which includes ‘homosexuals’ on the list of prohibited persons for purposes of immigration.”

This was the same law which Jamaican LGBT activist, Maurice Tomlinson, challenged at the Caribbean Court of Justice, when he filed for special leave in 2013.
In that same year, the Human Rights Committee issued its concluding observations on Belize, in the absence of its ICCPR report, indicating that, “The State party should review its Constitution and legislation to ensure that discrimination on grounds of sexual orientation and gender identity are prohibited.”

It also called on Belize to change the Immigration law challenged by Tomlinson, to seek protection and compensation for LGBT persons who are violated.

It asked Belize to “ensure that cases of violence against LGBT persons are thoroughly investigated and that the perpetrators are prosecuted, and if convicted, punished with appropriate sanctions, and that the victims are adequately compensated.”

In a published UN review captioned, 20 YEARS WORKING FOR YOUR RIGHTS: HUMAN RIGHTS RECOMMENDATIONS MADE TO BELIZE (2005 – 2013), several countries, including the Netherlands, Argentina, Uruguay, Norway, and Chile, called on Belize to “review its Constitution and laws” to, for example, “ensure the prohibition of discrimination on the grounds of sexual orientation and gender identity,” and to “adopt measures to eliminate discriminatory treatment and criminalization based on sexual orientation.”

The international pressure for Belize to change its laws came in the wake of a presidential memorandum issued on December 06, 2011, by US president Barack Obama, who announced measures to combat the criminalization of LGBT status. Obama said that, “Agencies engaged abroad are directed to strengthen existing efforts to effectively combat the criminalization by foreign governments of LGBT status or conduct and to expand efforts to combat discrimination, homophobia, and intolerance on the basis of LGBT status or conduct.”

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