‘I disagree with my learned friend’

Recently, my learned friend Ms. Claudette Joseph, an attorney-at-law penned an article making the following points:-

1. Gender as defined in the proposed constitutional amendments is wide enough to extend beyond just male and female; it can include transgender, intersex and other categories of persons

2. The meaning of gender, taken together with other proposed and already existing sections of the Bill of Rights, can “open the door” for LGBT persons to assert rights based on sexual orientation.

I disagree with my learned friend for the following reasons:-

Starting from scratch – the definitional section of the gender equality provisions defines ‘gender’ as “[t]he range of characteristics pertaining to, and differentiating between male and female”. Oxford defines ‘transgender’ as ‘[d]enoting or relating to a person whose sense of personal identity and gender does not correspond with their birth sex’.

A simple comparison of the two definitions shows that they are related, but in fact distinct. In the word ‘transgender’, the ‘trans’ part of the word is known as a prefix, a word attached in front another word to form a compound word. The prefix modifies the meaning of the original word, creating a word that might be related, but distinct.

To say that ‘gender’ in its definition  includes ‘transgender’ is the same as saying that ‘national’ in its definition includes ‘transnational’ – it does not.

Re: intersex. An intersex person is someone who has both male and female sex organs. Such a person would in the old days be called a ‘hermaphrodite’ – now considered derogatory. Intersex is biological, and not a social construct, not a ‘gender identity’; and as difficult as it might be for some to believe that they exist, they do, I know 2.

In fact, in Trinidad & Tobago, I was involved in policy advocacy for an intersex client. As a baby, the doctors had cut off their penis on the advice of their parents, who hoped they would grow as a female only. As an adult intersexed person, they looked, acted as and identified as a man, traumatised by the fact that doctors had removed their penis without waiting for them to be able to consent or choose, and because identity documents showing them as female made life difficult.

Such a person can already bring a challenge under our current constitution, alleging discrimination on the grounds of ‘sex’, a much more relevant and efficient  ground of challenge for intersex people –
one which already exists in our constitution. Such challenges are not a bad thing; God doesn’t make mistakes – after all.

To return to Ms. Joseph’s arguments about gender including transgender, she supports her position by reference to 2 cases, National Legal Services Authority v The Union of India and Caleb Orozco v The Attorney General of Belize. In both cases, the litigants use rights which already exist in our current constitution to win rights for trans people (in India), and homosexuals (in Belize).

Notably these are the rights to life, liberty and property (in the Indian case), and freedom of expression and freedom from ‘sex’ discrimination (in both cases). On this last point, significantly, the court in Belize – a  Caribbean Supreme Court – held that the word ‘sex’ in the anti-discrimination section includes ‘sexual orientation’.

The Indian Supreme Court held that ‘sex’ includes ‘gender identity’.

In other words, the Belize Court and the Indian Supreme Court, found that the prohibition against discrimination on the ground of sex – which is already in our current constitution – respectively protects homosexuals and transgender people from discrimination. Interestingly, neither the Belize Constitution, nor the Indian Constitution mention nor define gender in any way.

Hence my surprise that these cases would be used to support a position that ‘gender’ in the proposed amendments open the door to the kinds of rights won by the cases. Indeed the fact that gender is defined in the proposed amendments as it is, reduces that possibility.

At the root of the issue is what I call definitional creep – definitions assuming wider and wider (sometimes unconventional) meanings. But this is not specific to the definition of ‘gender’ as the above cases illustrate.

There is absolutely no reason to pick out gender to critique as potentially inviting LGBTI rights. If that is the approach we wish to take, we may as well revoke the right to sex discrimination, the right to free expression, the rights to life, liberty & property, the right to freedom of association (see Eric Gitari v NGO Board of Kenya); hell, let’s revoke all rights !

Revoke all rights to make sure that “these people” (as Ms. Joseph refers to them in a CC6 call in program) don’t get any rights. Such is the retrograde attitude of the evangelical churches who oppose the gender provisions; it’s a shameful case of cutting off the hand to spite the finger.

It is important to understand why definitional creep happens. First, constitutional rights have to be vaguely worded to ensure that protections apply to the broadest categories of situations relevant to the right involved.

This includes situations not foreseen at the time the provisions were drafted. Bear in mind for instance that our constitution was drafted in 1973, and continues to apply to situations arising in present times.

Second, courts acknowledge that societies are not stagnant, they change; and that no society exists in isolation, but is rather part of an international community which has agreed through treaties on human rights norms.

These acknowledgments find expression in what is known as the ‘living instrument doctrine’, where constitutional provisions are treated as living; their interpretations as dynamic and changing with the times, informed by international human rights norms.

The Caribbean Court of Justice in R v Mitchell Lewis  explains it thus:- “[t]he judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing the statute itself. The statute remains as it was, but its meaning changes because the court has given it a new meaning that suits new social needs…Since this instrument is seen to be a living instrument and always speaking the words contained therein, [it] must be viewed as eminently susceptible to interpretation in order to accommodate ever-changing social realities. In light of evolving international human rights standards what might have constituted a fair hearing in 1988 may not be seen to satisfy required conditions in 2006…”

In that case the right was the right to a fair hearing, but the same analysis applies, no matter the rights involved.

The importance of the living instrument doctrine is illustrated in the case of Aurelio Cal v Attorney General of Belize. Here, the Belize Supreme Court found that the Government of Belize’s non-recognition of the Maya’s customary land rights, constituted a violation of the Maya people’s right to property.

The court in coming to its conclusion interpreted the word ‘property’, as including customary land tenure of indigenous peoples.

In arriving at that interpretation, the court considered Belize’s international human rights obligations and more generally, the human rights norms around indigenous rights. The finding of a violation would not have been possible had the court applied the definition of property accepted in 1981, when the Belize Constitution came into being.

Such is the nature of Human Rights; their meanings expand, extending protections to more and more people and situations. There is nothing about ‘gender’ that “opens the door” for LGBTI rights. Some would have us cut off the arm to spite the finger. Reject them.

Richie Maitland

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