When the Cayman Islands Legislative Assembly next meets, lawmakers will face a historic human rights decision.
The introduction of the Domestic Partnership Bill, 2020, aimed at providing a legal equivalent to marriage for same-sex couples, comes as an exception in the Caribbean, where few jurisdictions outside of Dutch, French and US territories recognise such a right.
While some Cayman Islands legislators have been vocal in their opposition to gay rights, they have also been tasked by the courts with resolving the marriage issue – one rooted in five centuries of colonial history.
For same-sex couples like Chantelle Day and Vickie Bodden Bush, who began litigating for recognition of their marriage two years ago, the courts have become a battleground. Where legislatures and heads of government have so far been unwilling to act, courts in the region have provided LGBTQ and human rights advocates a means of resistance. In Bermuda, Jamaica, Trinidad and Tobago, and elsewhere, LGBTQ advocates are litigating for change as well.
In November, Cayman’s Court of Appeals punted to the legislature, however, overturning same-sex marriage approval by the Grand Court and ordering the Legislative Assembly instead to act on the matter.
“Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage,” the November judgment read. “It would be wholly unacceptable for this declaration to be ignored. Whether or not there is an appeal to the Privy Council in respect of same-sex marriage, there can be no justification for further delay or prevarication.”
Now, the legislature must amend one of the territory’s most divisive issues – or face the UK imposing a solution for them.
So, how did Cayman get here?
Long before the Day and Bodden Bush marriage case reached the courts, same-sex rights had become a contentious topic of debate in the Cayman Islands.
The Caymanian Compass opened its first edition of the century, on 2 Jan., 2001, with a retroactive announcement: same-sex acts had been legalised in the overseas territories the previous day through an order issued by the UK Privy Council on 13 Dec., 2000.
“A message from the Governor relayed to the Compass on Friday afternoon pointed out that the topic has been discussed extensively with Baroness [Patricia] Scotland,” the 2 Jan. Compass article read. “It was reconfirmed during the recent visit of Mr. John White, head of the Overseas Territories Department at the Foreign and Commonwealth Office, that it … would be brought into force by Order in Council by the end of 2000 if territories would not do so themselves.”
The order overturned 500 years of British colonial policy, starting with the Buggery Act of 1533, which first outlawed sodomy under the reign of Henry VIII.
The Buggery Act transferred punishment for the act of sodomy from the church’s legal realm to the state. While the act applied to both men and women, convictions and resulting death sentences were the most common and well-publicised for relations between men, writes the British Library.
The 2000 Order in Council provided a blanket mandate for British Overseas Territories, but it did not hold power over the British Commonwealth.
Thirty-six of 54 Commonwealth countries worldwide continue to criminalise same-sex acts, according to the Commonwealth Equality Network.
Some form of the Buggery Act remains in force in eight Caribbean Commonwealth nations, a result of a savings clause that grandfathered preexisting colonial law into the legal framework of newly independent Caribbean nations in the 1960s and 70s.
The British colonial legacy has complicated human rights progress in the region and across the Commonwealth – a reality that has been recognised, but not fully amended, by the UK.
“Across the world, discriminatory laws made many years ago continue to affect the lives of many people,” then-Prime Minister Theresa May told the Commonwealth Summit in 2018. “I am all too aware that these laws were often put in place by my own country. They were wrong then and they are wrong now.
“As the United Kingdom’s prime minister, I deeply regret both the fact that such laws were introduced and the legacy of discrimination, violence and even death that persists today.”
Around the time of 2000’s Order in Council, one of Cayman’s main economic engines, tourism, began to drive attention to the gay rights debate. Cruise tourism aimed at gay and lesbian travellers was gaining popularity, and operators promoted the Caribbean in tour packages.
In Grand Cayman, however, the business was not initially welcomed.
The Cayman Islands Government denied landing of an Atlantis Events cruise, catering to gay and lesbian travellers, in January 1998. The decision made international headlines.
“Careful research and prior experience has led us to conclude that we cannot count on this group to uphold the standards of appropriate behaviour expected of our visitors,” the Los Angeles Times quoted then-tourism minister Thomas C. Jefferson as saying.
Notwithstanding the hostile reception in 1998, Atlantis Events would successfully return to Cayman with 3,200 gay and lesbian guests at the end of January 2006. The cruise was billed by Atlantis as the first “major gay tourism event” in Cayman.
Despite prior objections by the Cayman Ministers’ Association and the church community, the cruise passed without “any real protest or disturbance”, the Compass reported on 1 Feb., 2006.
Prior to the ship’s arrival, however, speculation had been widespread about the islands’ potential LGBTQ guests.
“All visitors to these islands are expected to show decorum and good manners while visiting these shores,” a Compass editorial wrote the previous year, on 13 Jan., 2005. “All should be properly attired and there should be no flagrant, public displays of affection or inappropriate action. George Town, after all, is where the economic machine of this country is run. Decorum is expected and demanded.”
Unlike the response to 2000’s Order in Council, the response to the 2006 cruise was notable in the pages of the Compass. Letters to the editor filled the opinion page of the paper in February 2006, as the community debated the presence of openly gay, lesbian and otherwise non-conforming individuals on Cayman’s shores.
Frommer’s Travel Guide writes, “Most of the gay and lesbian community regards the Cayman Islands as gay-hostile as opposed to gay-friendly. None of the islands in the Caribbean are completely gay-friendly … but the government of the Cayman Islands has been particularly vocal and unapologetic in expressing its anti-gay attitudes.”
In 2008, tourism forced the topic of gay rights back into the spotlight after the Royal Cayman Islands Police Service detained a visitor from Massachusetts for kissing another man on the dance floor of Royal Palms.
Then-Director of Tourism Pilar Bush issued an apology the following week.
“On behalf of the entire Department of Tourism, I apologise for your upsetting experience and want to assure you that the Cayman Islands is a welcoming jurisdiction to all people,” Bush wrote to the male visitor. “What happened to you was an isolated incident, and is not representative of Cayman. We know that thousands of gay and lesbian visitors travel to the Cayman Islands every year and enjoy their vacation.”
Work permit-holder rights
In recent years, Members of the Legislative Assembly have made far-reaching statements against same-sex rights, from contemplating independence over the issue to accusing gay individuals of provoking natural disasters, like earthquakes.
In November 2019, legislators sparred with a familiar target of their ire, attorney Leonardo Raznovich.
The lawyer won the right to reside in Cayman in 2016, after the Immigration Appeals Tribunal granted him permission to appear as a dependent on his husband’s work permit. Since then, Raznovich has remained a dedicated advocate for gay rights in Cayman, most recently as a champion for the Day/Bodden Bush case.
After the Court of Appeals ruling in November, renewed debate in the legislature took aim at Raznovich, with MLAs Anthony Eden and Ezzard Miller calling for his deportation.
Without directly naming Raznovich, Eden told the Legislative Assembly, “I don’t know how we can sit down and continue to house someone that has inflicted so much pain on so many of our people in Cayman.”
The comments garnered condemnation from Colours Cayman, an advocate organisation for LGBTQ rights in the islands.
“Our organisation views this behaviour as a blatant and gross abuse of power. Are we to believe that any lawyer or individual advocating for the rights of LGBTQIA+ people is at risk of facing deportation or being ostracised somehow by our own government?”
When Day and Bodden Bush began their fight for recognition, the Raznovich case came as inspiration, Day said. The expatriate couple’s success gave Day hope that as a native-born Caymanian, her case might have a chance as well.
“That opened the door,” Day said. “If foreigners living in Cayman can have some recognition, even if it wasn’t full recognition … then surely the same should be extended to Caymanians.”
The couple and their adopted daughter have been awaiting resolution on their case for two years now. Their lawyers announced plans to take the fight to the Privy Council in January and a date for that hearing is pending.
“I don’t think that our case has anything to do with religion. It has everything to do with human rights and equality,” Day said. “People are entitled to their religious views and that’s between them and their God. They’re also entitled to civil liberties. I’m entitled to civil liberties as a Caymanian to marry and to have a child and to have a loving relationship legally recognised – the same way it’s recognised for heterosexual couples in this community. And that’s what this case is about.”