The Cayman Islands Human Rights Commission has described government’s decision to fight a court challenge against same-sex marriage as an “inexcusable waste of public funds.”
The statement from the commission, penned before the three-day court hearing which concluded Monday, was submitted to a U.K. government select committee’s ongoing inquiry on the future of the Overseas Territories. The statement, dated January 2019 and published on the committee’s website last week, highlights discrimination against Cayman’s gay community among a number of human rights concerns in the Cayman Islands.
The Human Rights Commission urges the U.K. to bring an order in council to allow same-sex couples the right to civil partnerships, conferring similar rights to marriage.
It suggests the U.K. could be in breach of European human rights laws if it fails to act to end the “legislative discrimination” in the Cayman Islands.
The statement highlights three years of correspondence between the Human Rights Commission and the Cayman Islands government and suggests it is “regrettable” that its recommendations, including the introduction of a law to recognize same-sex unions, have been ignored.
It goes on to state, “More regrettably still, the Government is currently contesting a Judicial Review being brought by a same-sex couple seeking the right to marry.
“It is the Commission’s view that this is an inexcusable waste of public funds; expended purely for political reasons to placate the demands of the more vocal discriminatory voices in the Cayman community.”
It states that a framework for legal recognition of same-sex partnerships is the minimum requirement of the European Convention on Human Rights – an argument that was echoed in the recent trial.
Chief Justice Anthony Smellie is currently considering his ruling in the case of Chantelle Day and Vickie Bodden Bush, a same-sex couple who say government’s refusal to grant them a marriage license is discriminatory and breaches human rights guaranteed by the Cayman Islands Constitution.
In its statement, which is unconnected to the legal proceedings, the Human Rights Commission said it was “undeniable” that it was unlawful under the European Convention to deny same-sex couples access to civil partnerships, which would entitle them to equal rights in areas as diverse as adoption, inheritance, pensions, next of kin visiting rights, access to welfare, and residency in the islands.
The Human Rights Commission supports access to full marriage for same-sex couples in Cayman, but suggests the United Kingdom government itself may be in breach of the European Convention if it does not act to ensure the minimum standard of civil partnerships is available in Cayman.
“The U.K. has the ability to end this legislative discrimination by an Order in Council,” it notes.
“The failure to do so arguably places the U.K. itself in breach of its legal obligations under the [European Convention on Human Rights]. The U.K. Parliament has recently shown its willingness to legislate for its Overseas Territories (without consultation) on beneficial ownership; the decision not to act where the fundamental human rights of British citizens within its jurisdiction are concerned is hard to justify.”
Answering questions on the issue from the same committee in December last year, Lord Tariq Ahmad, the minister responsible for the British Overseas Territories, said the U.K. had no current plans to force its overseas territories to legalize same-sex marriage or civil unions through an order in council.
He said the U.K. was content, for now, to let the judicial process takes its course.
The issue may become moot once Chief Justice Smellie gives his judgment in the local case that concluded this week. He is being asked to amend Cayman’s Marriage Law to allow for same-sex marriage, or at the very least to make a declaration that the legislature should introduce civil partnerships in order to be in compliance with the constitution.
The Human Rights Commission in its letter goes on to highlight more general concerns about homophobia in Cayman.
“Whilst it remains extremely rare for this discrimination to manifest itself in physical violence or abuse, a culture of homophobic attitudes within sections of the Legislature and vocal sections of the community (particularly some of the churches) has a potent and pernicious impact, with the capacity to encourage discrimination and bullying and lead to the denial of equal rights for members of the LGBT+ community.”
The letter highlights a Legislative Assembly debate in 2015 during which, it states, one MLA made veiled threats of violence toward homosexuals, equated homosexuality with bestiality and paedophilia and described it as “wicked and immoral.” It points out that those comments, which were made in a private members’ motion on Aug. 13, 2015, by Savannah representative Anthony Eden, went unchallenged in the assembly.