Strategic Litigation and the Use of Public Health Arguments in Same-Sex Decriminalisation Cases in the Commonwealth Caribbean
FIGHT FOR RIGHTS VIEWPOINT, Published 4 November 2025
Tenesha Myrie
The fight for equal citizenship
On July 29, 2025, the Commonwealth Caribbean recorded its seventh court victory in constitutional challenges to laws criminalising consensual same-sex sexual conduct. The Eastern Caribbean Supreme Court in Randall Theodule et al vs. The Attorney General of Saint Lucia ruled that sections 133 and 132 of the Criminal Code governing “buggery” and “gross indecency”, respectively, violated the constitutional rights to protection of the law, privacy, freedom of expression, protection from nondiscrimination based on sex as well as the rights to life, liberty, and security of the person.[1] This decision follows a historic wave of strategic litigation cases over the last decade, where judgments have been rendered in 10 Commonwealth Caribbean countries in which lesbian, gay, bisexual, transgender, and queer (LGBTQ) persons have gone to the courts to make their case for equal citizenship.[2] In Caribbean vernacular, LGBTQ persons are using the constitutional courts to declare that they too are “smaddy” – somebody deserving of the full recognition of their rights as “full human beings.”[3] As explained by scholars Tracy Robinson and Arif Bulkan, “criminalisation, and particularly enduring colonial criminalisation, has become a consistent site for contests about the meaning of race, sex and gender, morality, personhood and power in the Caribbean today.”[4]
Notwithstanding emancipation from British slavery and the enactment of Independence Constitutions in the Caribbean, for the newly independent, colonial-era laws criminalising “buggery,” “acts against the crime of nature,” “gross indecency,” and “serious indecency” overwhelmingly signalled that for those engaging in non-procreative sex, their kind of sexuality did not promote citizenship.[5] Even where unenforced, for sexual minorities, same-sex criminalisation laws in the region fuel an environment of economic exclusion, harassment, violence, and discrimination in accessing health care and other essential services.[6]
Centering the community
The first set of strategic litigation cases in the region challenging colonial-era laws regulating sex and gender was borne out of a recognition of their continuing harm to sexual minorities.[7] Led by the Faculty of Law, University of the West Indies Rights Advocacy Project (U-RAP), litigation commenced in 2010 with Orozco v Attorney General, challenging the criminalisation of “unnatural” sex in Belize, followed by McEwan v The Attorney General, challenging the criminalisation of cross-dressing in public for an “improper purpose” in Guyana.[8] Both cases were successful. Founded by three public law lecturers, U-RAP focused on social justice and human rights through collaborative and strategic litigation as an advocacy tool for gender justice, as well as socio-legal research and legal education, providing a successful model for the region.[9] Before the cases were filed, U-RAP conducted extensive research over a three-year period, consulted widely with members of the LGBTQ community, civil society actors, HIV/AIDS activists, and faith-based leaders, and collaborated with LGBTQ organisations, activists, and lawyers.[10]
Commencing in 2019, the second set of strategic litigation cases challenging same-sex criminalisation laws was filed in Barbados, St. Kitts and Nevis, Antigua and Barbuda, Grenada, and St. Lucia. These cases were led by the Eastern Caribbean Alliance for Diversity and Equality (ECADE), an independent umbrella of human rights organisations serving LGBTQ people in the Eastern Caribbean.[11] ECADE worked with the LGBTQ community and partnered with Caribbean lawyers, U-RAP, and the Human Dignity Trust to launch the challenges.[12] All cases have been successful, with the judgment in Grenada pending.
The U-RAP and ECADE-led cases reveal a centering of the LGBTQ community in the preparation for strategic litigation, the choice of claimants and the evidence led in support of the arguments. In all cases, the claimants were affiliated with or included a non-governmental organisation working on LGBTQ rights, allowing them to give an authoritative account of the harm LGBTQ people experience from same-sex criminalisation laws. On the debilitating impact of same-sex criminalisation laws on the realisation of the right to health, for example, the claimants in St. Lucia, St. Vincent and the Grenadines, Barbados, St. Kitts and Nevis, Antigua and Barbuda, and Belize were directly involved in providing health services, including education, counselling, and referral services to LGBTQ persons.
Use of public health arguments
While claimants have overwhelmingly grounded their claims in the constitutional rights to personal dignity, equality and nondiscrimination, freedom of expression, privacy, and protection of the law, some have also relied on public health arguments, particularly in Dominica (2024), St. Vincent and the Grenadines (2024), Barbados (2023), St Kitts and Nevis (2022), Antigua and Barbuda (2022), Trinidad and Tobago (2018), and Belize (2016). The criminalisation of consensual same-sex sexual conduct inhibits access to services, results in poor health outcomes, and creates an environment that is not conducive to the full realisation of the right to health.[13] Criminalisation generates fear among those who need services and those at the forefront of providing them.[14] Countries that criminalise consensual same-sex sexual conduct are known to experience decreased provision and uptake of HIV prevention services, decreased uptake of HIV care and treatment services, and have “significantly lower rates of both knowledge of HIV status and HIV viral suppression among all people living with HIV.”[15] The courts engaged with these public health arguments to varying degrees – accepting the claimants’ arguments in St Kitts and Nevis, Belize, and Dominica, setting out the claimants’ submissions in depth but without comment in Antigua and Barbuda and Barbados, but ultimately declaring the same-sex criminalization laws to be unconstitutional and, as an outlier, rejecting the claimant’s arguments in St. Vincent and the Grenadines finding itself constrained by the claimant’s inability to provide country-specific data on the negative health impact of the same-sex criminalisation laws.[16] Except in St. Vincent and the Grenadines, all of the afore-mentioned cases resulted in the finding of unconstitutionality of the same-sex criminalisation laws, while the favourable ruling by Trinidad and Tobago’s first-instance Court in 2018 was reversed by the Court of Appeal in 2025.[17]
Conclusion
The cases from the Commonwealth Caribbean reinforce the value of centering the community in strategic litigation. In relying on public health arguments, success appears more likely where the claimant’s evidence is unchallenged by the State and where the Court is provided with country-specific data and evidence from local public health experts or service providers who can convincingly speak to the country-specific contexts.
Tenesha Myrie is a Lecturer at the Faculty of Law, University of the West Indies, Mona, Jamaica.
Please address correspondence to the author. Email: tenesha.myrie02@uwimona.edu.jm
Competing Interests: None declared
Copyright © 2025 Myrie. This is an open access article distributed under the terms of the Creative Commons Attribution-Noncommercial License (http://creativecommons.org/licenses/by-nc/4.0/), which permits unrestricted noncommercial use, distribution, and reproduction in any medium, provided the original author and source are credited.
References
[1] Theodule et al v The Attorney General of Saint Lucia Claim No. SLUHCV2021/0457 decided July 29, 2025.
[2] Orozco v Attorney General of Belize Claim No. 688 of 2010 Supreme Court of Belize decided August 10, 2016; Attorney General v Orozco Civil Appeal No 32 of 2016 decided December 30, 2019; McEwan v The Attorney General of Guyana [2018] CCJ 30 (AJ); Jones v Attorney General of Trinidad and Tobago Claim No. CV2017-00720 decided April 12, 2018; David et al v The Attorney General of Antigua and Barbuda Claim No. ANUHCV2021/0042 decided July 5, 2022; Jeffers et al v The Attorney General of St. Christopher and Nevis Claim No.SKBHCV2021/0013 decided August 29, 2022; Holder-McClean-Ramirez et al v The Attorney General of Barbados Claim No. CV 0044 of 2020 decided May 25, 2023; Tomlinson v Attorney General of Jamaica [2023] JMFC Full 5; Johnson v Attorney-General of St Vincent and the Grenadines Claim No.SVGHCV2019/0110 decided February 16, 2024; B.G. v The Attorney General of the Commonwealth of Dominica Claim No. DOMHCV2019/0149 decided April 22, 2024; Theodule (see note 1).
[3] On smadditization, see C. W. Mills, “Smadditizin” Caribbean Quarterly 43/2 (1997).
[4] T. Robinson and A. Bulkan. “Enduring Sexed and Gendered Criminal Laws in the Anglophone Caribbean,” Caribbean Review of Gender Studies Issue 11 (2017).
[5] A. M. Jacqui. “Not Just (Any) Body Can Be a Citizen: The Politics of Law, Sexuality and Postcoloniality in Trinidad and Tobago and the Bahamas.” Feminist Review, no. 48 (1994): 5–23.
[6]Inter-American Commission on Human Rights, Advances and Challenges Towards the Recognition of the Rights of LGBTI Persons in the Americas, OEA/Ser.L/V/II.170 Doc. 184 (2018); Inter-American Commission on Human Rights, Violence against Lesbian, Gay, Bisexual, Trans and Intersex persons in the Americas, OAS/Ser.L/V/II.rev.1 Doc. 36 (2015).
[7] Robinson and Bulkan (see note 4).
[8] Orozco (see note 2), McEwan (see note 2).
[9] Robinson and Bulkan (see note 4) 225, 227.
[10] Ibid.
[11] ECADE, “About ECADE”, https://ecequality.org/about-ecade .
[12] ECADE Press Release, ‘“This is four years in the making’ Eastern Caribbean LGBT organisation launches five-country legal challenge to anti-gay laws,” October 31, 2019.
[13] Human Rights Council, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. A/HRC/14/20 (2010), paras 17 – 26; Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, International Guidelines on HIV/AIDS and Human Rights Consolidated Version (2006), Guideline 4 (UNAIDS, 2006), Guideline 4 p. 29-30.
[14] UNAIDS, Joint statement by UN High Commissioner for Human Rights Volker Türk and UNAIDS Executive Director Winnie Byanyima, “Decriminalization of LGBTQ+ people saves lives” (July 19, 2024) https://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2024/july/20240719_decriminalization-lgbtq-people-saves-lives.
[15] Ibid.
[16] Jeffers (see note 2), Orozco (see note 2) para 73, B.G. (see note 2), David (see note 2); Holder-McClean-Ramirez (see note 2); Johnson (see note 2).
[17] Attorney General v Jason Jones Civil Appeal No. P337 of 2018 decided March 25, 2025.