Cayman has 'legal duty' to amend discriminatory laws

It is “legally and morally unacceptable” for the Cayman Islands not to adapt its laws to remove discrimination against homosexuals, the islands’ Human Rights Commission has warned.

James Austin-Smith, chairman of the commission, said the territory has a legal duty to comply with the European Convention on Human Rights, which applies to Cayman because of its territorial relationship with the U.K.

“We can either adapt our laws to remove the discrimination faced by lesbian, gay, bisexual and transgender people here now, we can wait until either someone takes a case and wins in Europe and the U.K. does it for us, or we are shamed into it by the rest of the democratic world, which moved on years ago,” Mr. Austin-Smith told the Cayman Compass.

Visiting law professor Robert Wintemute of King’s College, London, highlighted several Cayman Islands laws, including the age of consent for gay people and the lack of legal protection from discrimination in the workplace, as out of sync with established rights under the convention.

Dr. Wintemute last month presented the first of a series of legal lectures organized by the students of the Truman Bodden Law School.

Premier Alden McLaughlin declined to answer questions from the Compass on the issue.

Governor Helen Kilpatrick, answering questions following a lecture on gender equality, said the U.K. government would likely stay out of the issue, generally preferring legislation to be introduced locally by elected politicians.

Mr. Austin-Smith said the Human Rights Commission has identified a list of laws that need to be “introduced immediately” to remove discrimination to the LGBT community in the Cayman Islands.

“There is a duty to comply with the Convention,” he said. “Simply waiting for someone to bring a case is both legally and morally unacceptable. Our position would be not dissimilar to an employer who says ‘I know it’s illegal to discriminate against people in employment based on the color of their skin but I’m going to do it anyway until someone takes me to court to stop me.’

“Cayman is a citizen of the international community. We owe it to that society not simply to break its laws until we are forced to stop, but actively to seek to do the right thing.”
He said areas of the law that covered inheritance, adoption, health insurance and domestic violence were among those that were currently discriminatory to same-sex couples.

Mr. Austin-Smith was speaking in the wake of the lecture series that has brought the issue of equal rights for Cayman’s homosexual community into mainstream conversation, perhaps for the first time. The series, which included Professor Wintemute’s analysis of the gaps in Cayman’s legislation, was attended at various stages by members of the current government.

The issue is politically sensitive, partially because of attitudes toward homosexuality among those who feel it conflicts with religious beliefs.

Mr. Austin-Smith said the Human Rights Commission believes public education is necessary alongside legislation. “Legislation alone can’t resolve a discrimination issue,” he said. “It is also important to tackle cultural attitudes, and this begins with education.”

He added that many of the same arguments now being used against LGBT rights were leveled against African-Americans fighting for equality in the civil rights movement in the U.S.

“Those individuals are now judged by history as racists and bigots,” he said. “We will also be judged by history. We owe it to ourselves, and our children and grandchildren to be on the right side of this argument.

“More importantly, it is also the right thing to do.”

Professor Wintemute highlighted several actions he said lawmakers need to take to comply with the European Convention on Human Rights. These are:

Lowering the age of consent for homosexual activity from 18 to 16 so the age of consent is equal regardless of sexual orientation

Abolishing other criminal laws that treat same-sex couples differently, including legislation outlawing sexual activity involving more than two persons

Introducing legislation to prevent public authorities from discriminating against homosexuals in employment and other areas

Amending legislation to give same-sex couples access to the same legal rights as unmarried different-sex couples

Amending legislation to give same-sex couples access to specific, important rights of married couples. This would include amending immigration legislation to ensure that same-sex partners of non-Caymanians are treated the same as different-sex spouses.

He also outlined a second set of “desirable reforms” for which he said there is currently no clear legal requirement but would help to ensure Cayman remained a modern, welcoming diversity-respecting jurisdiction. These include:

Amending anti-discrimination legislation to add sexual orientation and gender identity as prohibited grounds for discrimination

Introducing a civil partnership law allowing same-sex couples to register their relationships in the Cayman Islands and acquire most of the rights of married couples.