Abstract
This paper pursues a case study of the global dialectics of homophobia and homonationalism in Trinidad and Tobago to show that understanding Global Southern homophobias as responses to Western neoimperialism may be helpful, but also incomplete. On the one hand, patterns and politics of homophobia in postcolonial TT may be seen as a sort of state-sponsored oppositional response to Western cultural imperialism, in particular the development of heteronationalist imperatives in TT’s postcolonial legal code and political discourse that simultaneously increased the scope of heterosexuality while intensifying the criminalization of homosexuality. However, early postcolonial heteronationalist developments represent more an attempt to emulate Global Northern nationalisms than a reaction to them. Yet over time, with dissolution of the postcolonial nationalist project in the era of neoliberal globalization, Trinbagonian homophobia was upregulated in response to Western imperialism, but this unfolded beyond the immediate jurisdiction of the state within transnationally-entangled religious communities—Hindu, Muslim, and Christian—adopting “conservative” positions enabling them to establish superficial solidarity. Meanwhile, the state is increasingly fractured between a Judiciary that condemns homophobia as unconstitutional and a “homophobic” Parliament. Employing the concept of lawfare, the case study examined here concerns the trajectory of a pioneering 2018 decriminalization case against the Government of Trinidad and Tobago and the politics it represents and activated at international and national levels, as well as the debate and dissension it ironically catalyzed within the local queer community.
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Notes
See Jacques Rancière (2004) for a rich and provocative sociopolitical theorization of disagreement that has influenced my thinking. This paper was written before I got my hands on Erin Durban’s (2022) recent book on postcolonial homophobia in Haiti, whose analysis of the contending geopolitics of homophobia in Haiti is akin to my conceptualization of the global dialectics of homophobia and homonationalism in TT.
The concept of lawfare’s interdisciplinary origins and development are beyond the scope of my discussion here. Some commentators began using the term to distinguish the overly contentious and utilitarian character of the Western legal system as compared with the more communitarian, norm-based Chinese tradition (Carlson & Yeomans 1975). Retired Major General and now Duke University law professor Charles Dunlap Jr. popularized the term in legal and scholarly circles through an influential essay written in 2001 for Harvard University Kennedy School’s Carr Center for Human Rights, defining lawfare as “the use or misuse of law as a substitute for traditional military means to accomplish an operational objective” (see Dunlap & Charles 2015). The concept has been refined and applied in multifarious ways, both positive and negative. As a generalization, lawfare refers to employing law as a weapon of exploitation, conflict, and aggression and utilizing legal-judicial means for more properly political pursuits. These include, for example, the making and unmaking of law as a mechanism for colonization and resistance to it (Comaroff 2001); law as a facet of settler governmentality in modern nation-states, such as vis-à-vis Indigenous groups and racial segregation (Crosby & Monaghan 2012; Midzain-Gobin 2019; Rothstein 2018); and the mounting legalization of war and juridification of late modern military conflict (Dunlap & Charles 2015; Jones 2016). We also witness escalating and intensifying lawfare related to media freedom and climate change in recent times. Likewise, lawfare is valuable in analytically assessing litigation as a strategy for pursuing political change, such as the decriminalization of queer intimacies, as well as the debate and conflict about the strategic, political, and moral issues and questions generated by lawfare itself, as I show here.
TT became a Republic in 1976 in the midst of an oil boom, replacing the British monarchy with a newly-invented Presidential role as Executive Head-of-State fourteen years after formal “Independence” from the United Kingdom in 1962, which at that earlier time only meant full legislative—but neither executive, nor judicial—sovereignty, as we shall see.
See https://www.facebook.com/notes/caiso-sex-gender-justice-trinidad-tobago/a-little-of-what-happened-today-in-the-10th-civil-court-at-the-hall-of-justice-i/10155565105527763/; https://newsday.co.tt/2018/01/31/court-battle-over-buggery-laws/; and http://www.guardian.co.tt/news/2018-01-31/judge-sets-april-12-for-decision-in-lgbt-lawsuit.
Rampersad’s ruling was the spark that ignited full-scale effort to put on a global-style Pride celebration in Port-of-Spain by a group of activists and organizers in July 2018, TT’s chosen Pride Month (see McNeal, 2023 on #PrideTT).
Rampersad had requested that both claimant and state file further submissions concerning what should be done with the offending statutes in light of his ruling, namely whether to modify or strike them down entirely. Each side subsequently filed their suggestions for “remedy,” with both—interestingly—agreeing that Sect. 13 should be struck down given that Sect. 4 of the SOA, which had been amended in 2000 to make the rape clause gender-neutral and meant that anal rape (i.e., non-consensual buggery) could be prosecuted under its aegis, obviated any need for reference to buggery elsewhere in the law. Yet Rampersad ruled that he would modify both Sections in order to bring them in line with his April judgment by adding the criterion of consent to the buggery clause and making the serious indecency offense gender-neutral. Thus the offense of buggery (Sect. 13.2) is now “sexual intercourse without consent per anum, by a male person with a male person, or by a male person with a female person.” This despite the fact that Rampersad himself stated in his April judgment that “there is absolutely no reason why non-consensual sexual intercourse per anum cannot be caught under the provisions of Sect. 4(1) of the Act, i.e. rape” (paras. 156-159 & 169, JJ v AGTT). His modification of the legal definition of “buggery” as specifically non-consensual also creates new ambiguity in the law regarding which statute applies to the criminal offense of anal rape—Sect. 4, for which conviction can carry up to lifetime imprisonment, or Sect. 13, which provides for a maximum sentence of twenty-five years. Buggery committed with or by minors is now dealt with independently in the more recent Children’s Act of 2012. Serious indecency, defined as “any act other than sexual intercourse involving use of the genitals to arouse or gratify sexual desire” (Sect. 16.3), no longer applies to “persons, each of whom is 16 years of age or more, both of whom consent to the commission of the act” (Sect. 16.2.b). Deheterosexualizing the consensual exception for so-called serious indecency helps eliminate homophobic bias in the law, yet continues to frame the entire spectrum of natural human sexual activity in pejorative terms and remains in place as a mechanism for policing public sex.
For example, in a public hearing on the Sexual Offenders Bill of 2019, then-Attorney General Faris Al-Rawi acknowledged 27 laws in the national code targeting “what some of the rest of the world deems discrimination,” including the Sexual Offences Act, “which has recently been construed in a different manner by Justice Rampersad” in the Jones case and has been appealed “so that the Privy Council can ultimately guide us on what the law is” (https://newsday.co.tt/2019/03/14/ag-27-discriminatory-laws-in-tt/#.XIopfJfvbNc.facebook).
CAISO’s acronym originally stood for “Coalition Advocating for the Inclusion of Sexual Orientation” and is a double-entendre also referring to the local historical musical art form kaiso, with dynamic Afro-creole roots that evolved into the internationally-recognized genre of calypso for which TT is famous. The organization later officially dropped the background meaning of the acronym and kept CAISO as its stand-alone name along with the subtitle Sex and Gender Justice. CAISO’s web-page—https://caisott.org/home—offers a well-curated overview of their work, programs, principles, media content, and history. See Gosine (2015; 2021:Ch. 3) for more on CAISO.
Although more recently, in 2023, #PrideTT did exactly what it chastised CAISO for four years earlier by censoring the name of Jason Jones on the social media content it put out on the fifth-anniversary of Judge Rampersad’s ruling in favor of Jones on 12 April 2018. #PrideTT itself was founded in 2018 in jubilation of the Jones case win. Later, in 2019, CAISO and feminist organization Womantra boycotted #PrideTT in protest of Hanamji’s ostensible transphobia, alleged sexism toward women of color, and “authoritarian” leadership style. Ironically, the only protestor at Pride that year was someone from within the LGBT community itself (see McNeal, 2023).
Robinson’s position was also reported in international media. For example, an interview with Joshua Surtees published in the UK Guardian that was republished in Cayman iNews just a few days before Judge Rampersad’s 12 April 2018 ruling: “Colin Robinson, from the organization Coalition for the Inclusion of Sexual Orientation, …does not support Jones’s court case. He says the community should focus on the exclusion of gay and transgender citizens from the country’s Equal Opportunity Act before addressing sexual freedoms. ‘Is removing this law a strategy we support as a movement? No,’ says Robinson. ‘The political cost is relatively high. The buggery law enhances the stigma attached to certain kinds of sexuality,’ he concedes. ‘But I’m not aware of any arrests for consensual sex.’” See https://www.theguardian.com/world/2018/apr/07/caribbean-anti-gay-law-ruling-high-court-trinidad-tobago and https://www.ieyenews.com/homophobic-laws-in-caribbean-could-roll-back-in-landmark-case/.
I address the politics of queer asylum-seeking from TT to the United Kingdom as compared with the Netherlands elsewhere (see McNeal, 2019; McNeal & Brennan, 2021). Tragically, Robinson was taken by cancer at sixty years-old in 2021 and CAISO is now headed by Dr. Angelique Nixon, a Senior Lecturer at the Institute for Gender and Development Studies at the University of the West Indies campus in Trinidad and author of a book on tourism, diaspora, and sexuality in the Caribbean, Resisting Paradise (2015). It is important to emphasize again that CAISO was not against decriminalization, of course, but this was not their priority for reasons outlined above. It is also relevant to note that in 2016 CAISO’s board was reconstituted and some of its guiding principles shifted and reoriented, with increasing distinction between the views of founding director Colin Robinson and that of the organization moving forward. Yet it was his strategic vision that dominated up to that time and influenced the relationship between CAISO and the Jones case heading into 2018. Nonetheless, CAISO did a considerable amount of work on the ground both before and after the hearing and judgment vis-à-vis the public, the media, counter-demonstrations, developing support mechanisms for any backlash, and so forth, much of which has gone unrecognized in all of the high-profile discussion and debate about the Jones case.
Commonwealth Caribbean refers to what was formerly known as the British West Indies and now denotes those Anglophone Caribbean states that formally remain part of the British Commonwealth as Overseas Territories (Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Montserrat, Turks & Caicos) as well as those that have become politically independent, some of which are now Republics—Trinidad & Tobago (1962), Guyana (1966), Barbados (1966), Dominica (1978)—whereas the rest retain the British Monarch as Head-of-State (Jamaica 1962; Bahamas 1973; Grenada 1974; St. Lucia 1979; St. Vincent & the Grenadines 1979; Antigua & Barbuda 1981; Belize 1981; St. Kitts & Nevis 1983).
After a protracted back-and-forth set of legal battles spanning a decade, in September 2018 the Supreme Court of India ruled that the application of section 377 to consensual homosex between adults is “irrational, indefensible and manifestly arbitrary,” thus unconstitutional, but remains in force relating to sex with minors, non-consensual acts, and bestiality. Importantly for our discussion here, the 2018 Indian ruling cited the then-recently-decided case of Jason Jones v Attorney General of TT as precedent.
Another transcolonial historical reverberation with ironic Caribbean intersections: unlike other colonial British African legal codes, which were either based on the IPC or the Queensland Penal Code developed in Australia that was itself derived from the IPC, the Ghanaian code stipulated that buggery is “only” a misdemeanor. This law was based on a draft penal code prepared for Jamaica by the liberal British jurist R. S. Wright working under the influence of Utilitarian philosophy. However, though Wright’s code was never applied in Jamaica, it became the basis for law in Ghana (Friedland, 1981).
Tambiah’s (2009) meticulous reading of transcripts of the debates in the House of Representatives and Senate discloses the ways the Commission’s progressive provisions were rhetorically negated and regressively modified in relation to the public debate and acrimonious backlash that emerged.
Indeed, the international exchanges are expansive and political economy deep and influential within global Evangelical and Pentecostal denominations that are primarily head-quartered in North America and spend much time and energy exporting homophobia abroad. There is much to be said about the larger multi-religious history and recent cultural and political changes in Trinbago that is critically relevant for this discussion, but this is well beyond my space constraints here (see McNeal forthcoming b). Concerning analogous dynamics elsewhere, see Rao (2020) on Uganda and India and Durban (2022) on Haiti.
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McNeal, K.E. Lawfare and the Global Dialectics of Homophobia and Homonationalism in Trinidad and Tobago. Sexuality & Culture 27, 2105–2128 (2023). https://doi.org/10.1007/s12119-023-10152-5
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DOI: https://doi.org/10.1007/s12119-023-10152-5