From Colours Caribbean

GRAND CAYMAN, CAYMAN ISLANDS, 31 January 2022

The Rt Hon Amanda Milling, MP, minister for the FCDO, whose portfolio includes British Overseas Territories, visited the Cayman Islands last week and met with a number of activists and organisations championing for environmental, political and social change across the jurisdiction.

Colours Caribbean attempted to arrange to meet with the Minister as well during her visit to discuss the myriad issues our local LGBTQIA+ community continues to face, particularly in light of the physical assault on the same-sex couple earlier this month and the urgent need for the institution of anti-discrimination legislation and hate crime laws. However, our organisation was told that the Minister’s programme was already full and she would therefore not be able to accommodate a short meeting to discuss these matters.

This is disappointing, to say the least, as it only adds to the sense of perpetual neglect and lack of interest the UK Government has demonstrated towards the LGBTQIA+ people of its Caribbean territories—unless they are “forced” by others to act, as they were by the Court Of Appeal and Colours Caribbean in 2020—particularly given the current political and social climate the community finds itself in; the Privy Council in the UK has yet to reach a decision with regards to the legalisation of same-sex marriage in Bermuda and the Cayman Islands, now a year since the hearing in 2021. Furthermore, the recent introduction the Civil Partnership Law remains under threat, placing many same-sex couples and their families at risk, with no assurance of any legal protections or a potential remedy given from the UK Government.

Colours Caribbean will be meeting with other members of UK Parliament to further highlight these matters and push for the enactment of much needed legislation. Our organisation is also currently organising a consortium of other activists and groups from across the globe to address the UK Government’s role in implementing proper and thorough human rights protections for the LGBTQIA+ people of its overseas territories in the Caribbean.

About Colours Caribbean

Colours Caribbean is a locally operated non-profit that aims to foster a safe and comfortable social environment for the lesbian, gay, bisexual, transgender, queer, intersex and asexual (LGBTQIA+) community of the Caribbean and Latin America by building a network of regional businesses and public venues free of discrimination and harassment towards anyone on the basis of their sexual orientation or gender identity. We advocate for LGBTQIA+ rights as Human Rights and promote the inclusion and equality of LGBTQIA+ persons in the Cayman Islands and throughout the Caribbean and Latin America.

(See letter sent to Rt Hon Amanda Milling, MP, copied below.)

Letter To Rt Hon Amanda Milling, MP

Good Afternoon,

I’m Billie Bryan, Founder & President for Colours Caribbean, a legally registered non-profit organisation based in the Cayman Islands that advocates for the representation and rights of LGBTQIA+ across the region, in particular, British Overseas Territories in the Caribbean.

Our organisation has requested that Christine Rowlands, Head of Governor’s Office, arrange a meeting with you during your visit to the Cayman Islands, however, we were informed today that your agenda is full and that you do not have the time to meet and discuss with us several concerning and serious violations of international laws suffered by the LGBTQIA+ communities in the Cayman Islands and other British Overseas Territories, for whom you have responsibility. These violations include:

1. ongoing discrimination by public authorities on the basis of gender identity or sexual orientation, and
2. the lack of equal rights for same-sex couples

I want to urge you to spend as little as 10–15 minutes of your time to discuss these matters with us.

Our organisation and the community we represent and support continue to face incredible resistance from the FCDO to discharge its duties of good governance in our territories, even to the extent of allowing the continual violation of the European Convention on Human Rights (ECHR) for which the United Kingdom Government is responsible.

To illustrate:

• Cayman Islands
  • A same-sex couple was physically assaulted earlier this year. The local police force is investigating the incident as a hate crime without any results so far. This comes as no surprise: members of our own organisation were targeted last year by a group of churchgoers and senior clergymen who, in a WhatsApp group, discussed the possibility of hanging one of us to set an example to the public, “as the Muslims do.” This matter has led to no one being arrested either, even though the police have the WhatsApp evidence on file with names and telephone numbers of the perpetrators.
  • Some members of the police are openly homophobic: they rejected requests to invigilate our nation’s first “Pride” parade that took place last year. This constitutes discrimination by public authority contrary to the ECHR pursuant Smith And Grady v United Kingdom [1999] ECHR 72 (27 September 1999). During our meeting with the Premier last week, he acknowledged the incident and highlighted that the police are not within his remit but within the remit of the Governor and said that if he were the Governor, those officers would no longer be serving in the force. To our knowledge, nobody has been disciplined for such an incident.
• Turks And Caicos
  • The Turks and Caicos’ Attorney General, Hon Rhondalee Braithwaite-Knowles, in an email message dated 20 July 2021, rejected the possibility of recognising a same-sex marriage for immigration purposes stating “[A] spouse in the Immigration Ordinance has not been defined, but the ordinary meaning of spouse applies, and as interpreted along with the types of marriages solemnized.” This is unlawful in that such a statutory interpretation is contrary to the constitution of Turks and Caicos. Critically, it places the United Kingdom government in breach of the European Convention on Human Rights pursuant to Taddeucci v Italy (2016) ECHR 604 (30 June 2016).
• British Virgin Islands
  • The British Virgin islands’ Government is fighting a case in court brought by a local lesbian couple on whether the constitution requires same-sex marriage to be recognised (https://www.bvibeacon.com/same-sex-couple-fights-for-rights).The opposition of the government is contrary to the constitution and, critically, such an action by the local government places the United Kingdom Government in breach of the European Convention on Human Rights pursuant to Oliari v Italy (2015) ECHR 716 (21 July 2015).
• Bermuda
  • In Bermuda, same-sex marriage was legalised in May 2017 by the Supreme Court of the jurisdiction when it redefined the common law definition of marriage after finding that exclusion of same-sex couples constituted a breach of the Human Rights Act of Bermuda. The Bermuda Government responded by passing a law to ban same-sex marriage and to establish domestic partnerships instead. The ban was challenged in court and declared unconstitutional by the Supreme Court and the Court of Appeal of Bermuda, thus same-sex marriage remains legal in Bermuda pending an appeal brought by the Government to the Privy Council. The hearing took place in February; the judgment is still pending after almost a year, which in itself constitutes, pursuant to case law of the Privy Council itself, excessive delay and denial of justice Cobham v Joseph Frett (British Virgin Islands) [2000] UKPC 49 [35].
• Montserrat And Anguilla
  • No rights are currently available for LGBTQIA+ people in breach of the local constitutions and the European Convention on Human Rights.

The British Judges’ Role In Hindering The Progress Of LGBTQIA+ Rights In The Caribbean

Of more concern, the fight for equality in the Caribbean has been faced with a reluctant Privy Council. In fact, the Privy Council—whose judges are the same who sat at the Supreme Court of the UK—is in fact hindering progress of LGBTQIA+ rights in the Caribbean region. This may not come as a surprise given the level of racial bias that David Lammy MP’s research has recently (2017) uncovered in the British justice system.

As a matter of foreign relations, it is unacceptable, we hope that you would agree, that our own top British judges are the ones which have been less forthcoming than their counterparts in the Inter-American Human Rights Court and the Caribbean Court of Justice. In fact, it is only the case in the American continent from Canada to Argentina that in the jurisdictions under the Privy Council (6 British Overseas Territories and 8 independent nations) no progress on LGBTQIA+ rights can be reported by decisions of the Privy Council; conversely, some disturbing examples of decisions causing harm and hindrance to LGBTQIA+ people, whether directly or indirectly, can be reported:

1. Boyce v. Reg (2004) UKPC 32 and Matthew v T&T (2004) UKPC 33:
   these cases protect criminalisation and discrimination in perpetuity of LGBTQIA+ people in the Caribbean region:
   1. Anti-sodomy laws (1533 by Henry VIII) would be immune from constitutional scrutiny by the judiciary of an independent nation in 2021 in perpetuity.
   2. Many Anti-LGBTQIA+ laws—AG of Trinidad and Tobago said publicly in July 2021 that 27 laws would fall into this category as well.

Boyce and Matthew in fact reversed Roodal v. T&T (2003) UKPC 78 and have since then been repealed for Barbados and Guyana by the Caribbean Court of Justice in Nervais v. Reg and MacEwan v. Guyana (2018).

1. Surratt v. T&T (2007) UKPC 55:
   this case provides for discrimination on grounds of sexual orientation and gender identity in that it concludes, albeit obiter, that “sex” cannot be construed to include sexual orientation:
   1. This is contrary to Egan v. Canada (1995) 2 SCR 513; this is relevant to Surratt in that the Charter of Rights of the constitution of Trinidad and Tobago is taken almost verbatim from the Charter of Rights of the Canadian constitution.
   2. It is also contrary to McEwan v. Guyana (2018) CCJ 30 and more recently to Bostock v. Clayton County (Georgia) 590 U.S. (2020).
2. Day and Bodden-Bush v. AG of Cayman Islands (also still pending after almost a year from the hearing):
   the issue the Board has to decide is whether the constitution of the Cayman Islands properly construed allows for segregation of people on grounds of sexual orientation:
   1. If the Board answers yes, then it will be the first supreme court in the western hemisphere to provide for segregation of LGBTQIA+ people
   2. Such an outcome will follow the ratio of Plessy v. Ferguson 163 US 537 (1896) on grounds of sexual orientation rather than race with the practical effect of bringing the laws of a British Overseas Territory back to 1896 on matters of equality and segregation.

It is beyond perplexing that whilst we celebrate the equal right to marry in the UK, not all British citizens enjoy equal or even similar rights, because of the decisions of our top British judges and the denial of the UK government to comply with its international obligations.

The UK Government insists that these matters are devolved and hence it would not intervene. However, this is a rather cynical excuse as you would remember that as recently as 2019 (Northern Ireland (Executive Formation etc.) Act 2019), the United Kingdom Parliament found necessary to legislate same-sex marriage for Northern Ireland even though this is a devolved matter. More disturbingly, in 2018 the United Kingdom Parliament thought appropriate to pass legislation to force the British Overseas Territories to disclose the ultimate beneficial ownership as part of the Anti-Money Laundering Act 2018, even though there is no international obligation to do so. In 2019, a report by the UK House of Commons’ Foreign Affairs Committee advised the UK Government to give a deadline to the British Overseas Territories to legislate same-sex marriage or faced to have this done by Order in Council or Act of Parliament. The UK Government responded by saying it had no plans to do so, instead it has remained accomplice in the breach of basic human rights of the LGBTQIA+ community.

Even the Civil Partnership Act 2020 that the UK government was “forced” to provide us—given the failure of our own government to act—is now being questioned by a judge in the Cayman Islands Grand Court that kept the matter secret, allegedly by mistake of the Clerk, even though the Clerk denied it, until we got a copy of the decision from Christine Rowlands and made it public. If the Privy Council’s decision is negative and the matter in the Grand Court is contrary to the Governor, at the culmination of years of litigation we may be left without access to marriage and without an equivalent alternative legal framework.

Given all of this, we thought it would be worth setting up a meeting to discuss these matters and also to explore how we can make things better for our LGBTQIA+ community. It would be most regrettable should you not find the time to fit the discussion of these matters into your agenda, especially as you’re now able to meet in person with those who are grappling with them the most.

Thank you for your consideration and time. We hope to hear from you soon. (We are also copying Lord Herbert in this letter as the Special Envoy for LGBTI matters of the UK government.)

Billie “Bee” Bryan  Founder & President She/Her/Hers   Colours Caribbean https://colourscaribbean.com +1 (345) 324-3779 Cayman Islands +1 (408) 688-9999 USA