Legal Minds Debate Over “Gay Loophole” Claim

by Linda Straker

As the date for the 27 October referendum gets closer and closer, a debate has started on the Rights and Freedoms Bill which is promoted by the Reform Committee as elevating the fundamental rights and freedom of each citizen, but is seen by some section of the religious community as creating a loophole to legalise gay marriage.

The latest contributing to the debate is a Human Rights lawyer who is also of the view that the proposed amendments in the Rights and Freedoms Bill are seeking to strengthen the human rights protections which people currently enjoy, and will not bring any special rights to persons who LGBTI (Lesbian, Gay, Bisexual, Transgender, and Intersex).

“To answer the question, the reach is that the proposals seek to recognize and protect the equality of women with men; no more, no less. There is nothing in the sections which can be used to win rights for LGBTI people, which is even further precluded by the limited definitions of ‘gender’ and ‘gender equality’ in the section,” says Richie Maitland.

Stressing that the proposed amendments (Chapter 1B), introduce measures to recognize and protect the equality of women with men, he said that the first thing to note is that the amendment is careful to define the key terms in ways which prevent the provisions from being used to extend rights to homosexuals.

“‘Gender’ is defined as “the range of characteristics pertaining to, and differentiating between, male and female” and ‘gender equality’ “reflects the view that men and women should receive equal treatment and should not be discriminated against based on gender”. In other words Gender does not refer to gender identity or sexual orientation and gender equality does not mean anything other than equality between men and women,” he wrote in an article entitled “The Sky Isn’t Falling.”

He further explained that the drafters of the bill were keen to ensure that the sections can’t be used to win rights for LGBT people. “Perhaps they anticipated and tried to pre-empt the kind of self-righteous panic that still came, despite their efforts,” he wrote.

Representatives from a number of full gospel churches have begun openly campaigning for the voting population to vote ‘no’ to the Rights and Freedoms Bill, claiming that it will pave the way to legalising same sex unions.

However, Chairman of the Constitution Reform Advisory Committee Dr Francis Alexis, who is a constitutional lawyer and a former Attorney General, along with other senior members of Grenada Bar Association, have continuously stated that this is not the intention of the Bill.

Lawyer, Dr Lawrence Joseph said that in the Bill, the term masculinity could infer that a female could reflect some measure of masculinity or the term femininity could infer that a male could reflect femininity.

“However as described in the Bill, male is male and female is female based upon their respective characteristics. It is purely in the context of the male and female binary with which the Bill is involved. The Bill, therefore, promotes equal treatment for these persons in all spheres of life,” he said.

One of the lawyers making the claim that the Rights and Freedom Bill will create the loophole for gay marriage, is Claudette Joseph. “Ms Joseph avers that the term “range of characteristics pertaining to and differentiating between male and female” leaves this loophole for regularizing gay rights and same sex marriage. This argument is seriously flawed and may be intentional in order to “kill the bill”, said Dr Joseph.

“It is most ironical and disappointing that attorney at law Ms Claudette Joseph, as a woman, has been heard to deconstruct the Gender Equality section of the Rights Bill to infer that there may be a loophole to promote same sex marriage. It is even more ironical that Ms Joseph was a member of the Drafting Committee of the Constitution Reform Advisory Committee, which was responsible for the initial drafting of all the Referendum Bills,” Dr Joseph in an article which is already published online and is scheduled to appear in next edition of local newspapers.

In his explanation, Attorney General Cajeton Hood said that the amendment does not seek to, nor give any loophole or any extra power or any extra right that was not there before to any special individual or group. Speaking on the marriage act, Hood said that though there is no definition for marriage, it clearly says that marriage in Grenada shall be between a male and a female.

The Bill promotes fundamental rights and freedoms, protection for children which also allows them to have public funded education, protection for persons with disabilities, gender equality, the constitutional right to vote, religious liberty, constitutional rights to enjoy intellectual property, amongst others.

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