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Colonial-era Antigua and Barbuda sodomy law struck down

Unclear whether government will repeal decision

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Antigua and Barbuda (Image by Allexxandar via Bigstock)

ST. JOHN’S, Antigua and Barbuda — A judge on Tuesday ruled provisions of a law that criminalizes consensual same-sex sexual relations in Antigua and Barbuda are unconstitutional.

High Court Judge Marissa Robertson, who sits on the Eastern Caribbean Supreme Court, a regional judicial authority, in her ruling said sections 12 and 15 of the country’s Sexual Offenses Act 1995 “are unconstitutional as they contravene” Antigua and Barbuda’s constitution.

“Section 12 of the Sexual Offences Act 1995 offends the right to liberty, protection of the law, freedom of expression, protection of personal privacy and protection from discrimination on the basis of sex, in so far as section 12 of the Sexual Offenses Act 1995 is inconsistent with the rights of persons sixteen (16) years and older to engage in consensual sexual intercourse per anum in private, and to the extent of that inconsistency section 12 of the Sexual Offences Act 1995 is void,” said Robertson.

Robertson in her decision said section 15 of the Sexual Offenses Act 1995 “offends the right to liberty, protection of the law, freedom of expression, protection of personal privacy and protection from discrimination on the basis of sex, in so far as section 15 of the Sexual Offenses Act 1995 is inconsistent with the rights of persons sixteen (16) years and older to engage consensually and in private in the sexual acts described in section 15(3), and to the extent of that inconsistency section 15 of the Sexual Offenses Act 1995 is void.”

Orden David, a gay man who works for the Antigua and Barbuda Health Ministry and is the executive director of Meeting Emotional and Social Needs Historically (MESH) Antigua and Barbuda, a support group for LGBTQ and intersex people in the country, and Women Against Rape, an NGO that works with those who are impacted by gender-based violence, formally challenged the law.

“This judgment is a significant milestone in the history of Antigua and Barbuda,” said Women Against Rape President Alexandrina Wong on Wednesday during a virtual press conference the Eastern Caribbean Alliance for Diversity and Equality (ECADE), a regional LGBTQ+ and intersex rights group, organized. 

“Members of the LGBT community and consenting adults who choose to engage in intimacy can now breath a sigh of relief, because at least there is safety under the law,” added Wong.

ECADE Executive Director Kenita Placide, who is based in St. Lucia, during the press conference described the ruling as a “landmark decision.”

“The process of litigation is important, as it underscores how these laws contribute to the stigmatization of LGBTQI people, how they legitimize hate speech, discrimination and violence and tears at the fabric of our society,” said Placide in a statement. “Our governments have sworn to protect and uphold the rights of all and act in a manner that promotes the prosperity and well-being of all. This judgment is in keeping with this commitment.”

Antigua and Barbuda Sen. Aziza Lake also welcomed Tuesday’s ruling.

“It is a long overdue development,” Lake told the Washington Blade. “The government has no business in the bedrooms of consenting adults.”

Colonial-era laws that criminalize homosexuality remain in place in St. Lucia and other former English colonies in the Caribbean.

The Belizean Court of Appeal in late 2019 upheld a ruling that struck down the country’s sodomy law. A judge on the Trinidad and Tobago High Court in 2018 struck down its statute that criminalized consensual same-sex sexual relations. 

The Inter-American Commission on Human Rights last year in a landmark decision said Jamaica must repeal its sodomy law. ECADE noted similar cases have been filed in St. Lucia, Barbados and St. Kitts and Nevis.

Then-British Prime Minister Theresa May in 2018 said she “deeply” regrets colonial-era criminalization laws the U.K. introduced. Nick Herbert, a member of the British House of Lords who currently advises embattled Prime Minister Boris Johnson on LGBTQ+ and intersex issues, last December told the Blade during an interview in D.C. that his country has a “historic responsibility for these laws and their legacy.”

“Great news from Antigua and Barbuda as the Eastern Caribbean Supreme Court strikes down laws criminalizing consensual same-sex activity,” tweeted Herbert on Wednesday. “[It is a] historic achievement for the people of Antigua and Barbuda and another welcome step forward for LGBT+ rights globally.”

The Associated Press reported the Antigua and Barbuda government has yet to announce whether it will appeal Robertson’s ruling. 

Glenroy Murray, executive director of J-FLAG, a Jamaican LGBTQ+ and intersex rights group, on Wednesday told the Blade he remains hopeful the decision will resonate throughout the region. 

“I am excited to see Antigua and Barbuda have this ruling and I am hopeful for what this will mean for the rest of the eastern Caribbean, given the similarities of their constitutional framework,” said Murray. “The ruling demonstrated how the strategic litigation in other parts of the Caribbean have led to positive impacts and that trend bodes well for LGBTQ+ rights in the region overall.”

Murray further noted the ruling “will not directly impact the current challenge to Jamaica’s anti-sodomy laws, which has lingered far too long in our courts.” Murray added “it definitely sends a positive signal to our legislators that times are changing in the Caribbean.”

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Trans Cuban woman’s 14-year prison sentence upheld

Brenda Díaz participated in an anti-government protest on July 11, 2021

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Brenda Díaz (Photo courtesy of Ana María García Calderín/Tremenda Nota)

HAVANA — Cuba’s highest court has upheld the 14-year prison sentence that a Transgender woman with HIV received after she participated in an anti-government protest in July 2021.

Tremenda Nota, the Washington Blade’s media partner in Cuba, notes Brenda Díaz was arrested in Güira de Melena in Artemisa province on July 11, 2021.

The Güira de Melena protest was one of dozens against the Cuban government that took place across the country on that day.

A Havana court earlier this year sentenced García to 14 years in prison. She appealed her sentence, but Agencia EFE reported the People’s Supreme Court on Wednesday upheld the sentence.

The court, according to Agencia EFE, determined García’s sentence was “legal, just” and rational.” The U.S. Embassy in Cuba on Thursday condemned the decision and its ruling that upheld the 15-year prison sentence that journalist Jorge Bello Domínquez received after he participated in the July 11 protests.

“We condemn the confirmation of the discriminatory and unjust 14- and 15-year prison sentences for Brenda Díaz and journalist Jorge Bello Domínguez for their participation in the July 11 (protests) that were announced yesterday,” tweeted the embassy.

A State Department spokesperson last month told the Washington Blade the U.S. is “very concerned about the well-being of Brenda Díaz, especially given reports that she is being held in a men’s prison and is not receiving appropriate medical treatment.” 

The embassy on Thursday reiterated these concerns.

“We express our deep concern over Brenda’s health and the treatment that she is receiving in prison,” tweeted the embassy. “We call upon the Cuban government to unconditionally release Brenda, Jorge and everyone who has been unjustly detained.”

The tweet ended with the hashtag “Prisoners, why?” 

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Caribbean

New Cuba family code referendum to take place Sept. 25

Same-sex couples poised to receive marriage, adoption rights

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HAVANA — The Cuban government has announced a referendum on the final draft of a new family code that would extend marriage and adoption rights to same-sex couples will take place on Sept. 25.

“It will benefit everyone; which shows its inclusive, protective and equal character,” said Justice Minister Oscar Silvera Martínez, as quoted in Granma, the official Cuban Communist Party newspaper, on Friday.   

The National Assembly late last year approved the draft family code. 

A “popular consultation” ended on April 30. Tremenda Nota, the Washington Blade’s media partner in Cuba, reported the last of the family code’s 25 drafts was presented to President Miguel Díaz-Canel and other officials on June 6.

Díaz-Canel and Mariela Castro, the daughter of former President Raúl Castro who is the director of Cuba’s National Center for Sexual Education, are among those who publicly support marriage equality. Cuban voters in 2019 overwhelmingly approved the draft of their country’s new constitution, but the government’s decision to remove a marriage equality amendment before the referendum on it sparked outrage among independent LGBTQ+ and intersex activists.

Efforts to implement the new family code are taking place against the backdrop of the continued persecution of LGBTQ+ and intersex Cubans and others who publicly criticize the country’s government.

Tremenda Nota Editor Maykel González Vivero is among the hundreds of people who were arrested during anti-government protests that took place across Cuba on July 11, 2021.

Yoan de la Cruz, a gay man who used Facebook Live to livestream the first protest that took place in San Antonio de los Baños in Artemisa province. De La Cruz subsequently received a 6-year prison sentence, but he was released on house arrest in May.

Brenda Díaz, a Transgender woman with HIV who participated in a July 11 protest in Güira de Melena in Artemisa province, has been sentenced to 14 years in prison. The State Department told the Blade earlier this month it is “very concerned” about Díaz’s health and well-being and urged the Cuban government to release her.

“We strongly encourage the government of Cuba to release Ms. Diaz or at minimum transfer her to a facility consistent with her gender identity, and to provide her with appropriate medical treatment,” a State Department spokesperson told the Blade.

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Caribbean

State Department urges Cuba to release Trans woman from prison

Brenda Díaz received 14-year sentence for taking part in anti-government protest

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Brenda Díaz (Photo courtesy of Ana María García/Tremenda Nota)

WASHINGTON — The State Department on Thursday said it is “very concerned” about the well-being of a Transgender woman in Cuba who is serving a 14-year prison sentence after she participated in an anti-government protest last July.

Tremenda Nota, the Washington Blade’s media partner in Cuba, notes Brenda Díaz was arrested in Güira de Melena in Artemisa province on July 11, 2021.

The Güira de Melena protest was one of dozens against the Cuban government that took place across the country on that day.

Tremenda Nota reports authorities at Panamá, a prison in Mayabeque province where Díaz has been held, shaved her head and removed her finger nails before they placed her with male prisoners and forced her to wear men’s clothes. Tremenda Nota also notes prison officials refer to García by her dead name.

Reports indicate a Havana court earlier this year sentenced García to 14 years in prison.

García has appealed the sentence and her mother, Ana María García, on June 17 saw her during a court hearing in the Havana suburb of Marianao. 

García told Tremenda Nota that Díaz, who lives with HIV, has gone to the prison infirmary four times and has been hospitalized twice since she has been incarcerated. Díaz, according to her mother, has access to antiretroviral drugs, but other medications are not always available. García also told Tremenda Nota the food that Díaz receives in prison is “very bad quality.”

“We are very concerned about the well-being of Brenda Díaz, especially given reports that she is being held in a men’s prison and is not receiving appropriate medical treatment,” the State Department spokesperson told the Blade in a statement.

Díaz is among the hundreds of people who were arrested during the July 11 protests.

Yoan de la Cruz, who is gay, used Facebook Live to livestream the first July 11 protest that took place in San Antonio de los Baños in Artemisa province. The same Havana court that sentenced Díaz condemned De La Cruz to six years in prison, but he was released in May and placed under house arrest for five years.

“Cuban state prosecutors have manufactured false or unjust charges, to include ‘sabotage’ for the actions of demonstrators during July 11 to silence dissidents, quash future peaceful protests and intimidate regime critics,” the State Department spokesperson told the Blade. “These protestors have received incredibly harsh prison sentences handed down in politically motivated trials.”

“We strongly encourage the government of Cuba to release Ms. Diaz or at minimum transfer her to a facility consistent with her gender identity, and to provide her with appropriate medical treatment,” added the spokesperson.

The Washington-based International Institute on Race, Equality and Human Rights is among the groups that have also sought to publicize Díaz’s case.

“A few days before the first anniversary of the peaceful protests known as 11J (July 11), get to know the story of Brenda Díaz, a Trans Cuban woman who is serving a 14-year prison sentence for expressing her gender identity amid the protests. Meet her!,” tweeted the International Institute on Race, Equality and Human Rights.

Plataforma 11M, an independent LGBTQ+ and intersex rights group in Cuba, on Thursday urged Victor Madrigal-Borloz, the independent U.N. expert on LGBTQ+ and intersex issues, to “investigate” Díaz’s incarceration and a September referendum on the final draft of Cuba’s new family code that would extend marriage rights to same-sex couples

Cuba is among the members of the U.N. Human Rights Council that voted on Thursday to renew the independent expert’s mandate.

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