Continued Persecution of Jamaican Homosexuals Leads to Strong Claims for Asylum

By Noelle Andrego

Jamaica is one of the most unpleasant countries for homosexuals, as this group continues to be targets of discrimination and persecution on account of their membership in the LGBT+ community.[1] The illegality of homosexuality in Jamaica “mobilizes the authority of the state” and “reinforce[s] prejudice and negative social attitudes.”[2] Specifically, Jamaica’s Offences Against the Persons Act 1864 (the “Act”) prohibits the act, or attempt, of the “abominable crime of buggery” and “gross indecency” between two males in public or in private.[3] One who is convicted of “buggery" will face up to ten years in prison or hard labor.[4] Under the Sexual Offenses Act 2009, anyone convicted under Sections 76-77, and 79 of the Act is subsequently registered as a sex offender.[5] Further, the Jamaican Constitution only legally recognizes a marriage between a man and a woman.[6] Not only are homosexuals prosecuted under the law, but these laws offer legal sanction to discriminate and give social sanction to prejudice.[7]

In 2020, the Inter-American Commission on Human Rights Reports (“Commission”) declared that Jamaica is blatantly in violation of its legal obligations according to the American Convention on Human Rights.[8] Namely, Jamaica’s current laws violate the fundamental principle of equality.[9] Within its decision, the Commission not only stated that Jamaica should provide full reparation for the human rights violations the country committed, but it also issued six recommendations for the Jamaican government to adopt to prevent similar violations from occurring in the future.[10] These recommendations include repealing the sections of the Act that criminalize consensual conduct between two males, training Jamaican public officials on the challenges homosexuals face, and ensuring Jamaica’s education system is designed to eliminate stereotypes and discrimination for those in the LBGTQ+ community; namely, ensure that “educational policies and programs are specially designed to modify social and cultural patterns of harmful behaviors.”[11] However, a year after the Commission released its decision, the Jamaican Justice Minister said the report was “not binding,” and that the issue may be dealt with by a vote.[12] As of present, the Jamaican government has yet to act in response.[13

In the same year, the International LGBTI Association, in its global legislation overview update, recognized that Jamaica has no legal protections against hate crimes or incitement in regard to homosexuals.[14] Amnesty International also released a call to action in 2020 urging the Jamaican government to make changes.[15] Amnesty International voiced its concern about “widespread and institutionalized discrimination against LGBTI persons and the criminalization of same-sex relations.”[16] For instance, of approximately 300 Jamaicans interviewed in a 2019 study, 32% reported having been threatened with physical violence and 12% reported being physically attacked.[17] However, almost half of the LGBT+ Jamaicans interviewed stated they “did not report incidents because they did not think the police would do anything,” and 25% feared a “homophobic reaction from the police.”[18] 

To continue, in 2023, the College of Psychology and Community Services at Walden University conducted a phenomenological qualitative study confirming that homosexual males in Jamaica continue to be victims of persecution.[19] In its report, it states that “Jamaica stands out among its Caribbean counterparts for displaying the most prevalent antigay attitude toward homosexuals.”[20] Moreover, it states that “[a]ntigay prejudice is so widespread and deleterious in Jamaica that the issue is both critical and obdurate.”[21] In support, according to the U.S. Department of State Country Report on Human Rights Practices for Jamaica, two LGBT+ community members were killed in their home in August of 2022.[22]

There is also limited legal protection in place in the employment context.[23] While Section 13(1)(9) of the Staff Orders for the Public Service in Jamaica states that “[e]mployees shall be treated fairly and equitably without discrimination based on [sexual orientation],” LGBT+ employees still consistently face discrimination in the workplace and are denied access to employment based on assumptions about their sexuality.[24]

Gareth Henry was beaten by police officers in Jamaica and is now an asylum activist who secured the victory of the Inter-American Commission on Human Rights calling on Jamaica to repeal its anti-gay laws in violation of international law. Courtesy of NBC News.

Therefore, despite multiple reports that document the violence and hatred towards LGBT+ persons in Jamaica, and the international efforts bringing light to the severity of the institutionalized homophobia and lack of government protection, Jamaica “continues to criminalize same-sex relations and lacks comprehensive anti-discrimination legislation.”[25]

Due to the prevalent issue of homosexuals facing persecution in Jamaica, many flee the country to seek asylum in the United States or Canada.[26] To qualify for asylum in the United States, an applicant has the burden of demonstrating that he or she satisfies the statutory definition of a refugee.[27] A refugee is defined as

any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[28]

Being a homosexual in Jamaica is a strong case for asylum, specifically, in satisfying the requirement that an asylum seeker must be part of a targeted group that is “socially distinct within the society in question.”[29] It can be argued that evidence of the discrimination and unequitable treatment in Jamaica demonstrates that homosexuals are viewed as a distinct group for purposes of asylum. The fact that Jamaica’s parliament passed laws targeting homosexuals, namely, laws that criminalize consensual activity between members of the same sex, clearly establishes that the Jamaican government and society at large perceive homosexuals as a distinct group with discrete, definable boundaries in regard to who falls within this class.

 An applicant for asylum has the additional burden of showing the persecution was inflicted by the government or by an entity the government is unwilling or unable to control.[30] Homosexuals in Jamaica have a strong case in terms of satisfying this requirement as well because country conditions may be used to supplement the applicant’s testimony about the government’s unwillingness to control the private actors.[31] For example, Jamaican law enforcement officials directly perpetrate and condone violence against homosexual individuals, and the Jamaican government criminalizes and prosecutes consensual same-sex activity.[32] Prosecution that is motivated by a protected ground is a form of persecution.[33]

Moreover, it is common for an asylum seeker from Jamaica to demonstrate that his or her well-founded fear of future persecution stems from a pattern or practice of persecution within the applicant’s country of nationality of a group that the applicant belongs to.[34] In one case, a Jamaican asylum applicant was fearful of returning to Jamaica because he was homosexual.[35] The court recognized that there is in fact a pattern and practice of persecuting gay men in Jamaica in support of the applicant’s claim.[36]

Overall, due to the illegality of homosexual activity, lack of government protection, and the resulting inherent and systematic discriminatory norms of Jamaican society, homosexuals continue to be targets and victims of persecution, which results in many strong claims to asylum in countries such as Canada and the United States.[37]

[1] Shahila Edwards-Grey, Homophobia in Jamaica and its Impact on the Victimization of Homosexual Adult Males (2023).

[2] Paul Chaney, Exploring civil society perspectives on the human rights situation of LGBT+ people in the Caribbean Community, 18 J. Civ. Soc’y 369, 372, 384 (2022).

[3] Offences Against the Persons Act 1864, §§ 76, 79.

[4] Id. § 76.

[5] Sexual Offenses Act 2009, at 33.

[6] Jamaica's Constitution of 1962, § 18.2.

[7] Not Safe at Home, Hum. Rts. Watch (Oct. 21, 2014), https://www.hrw.org/report/2014/10/21/not-safe-home/violence-and-discrimination-against-lgbt-people-jamaica.

[8] IACHR, Report No. 401/20. Case 13.095. Merits (Publication). T.B AND S.H. Jamaica. December 31, 2020.

[9] Id.

[10] Id. at 27.

[11] Id. at 27-28.

[12] Anna Dickenson et al., LGBT+ rights and issues in the Caribbean 21(2022).

[13] Id.

[14] ILGA, State-Sponsored Homophobia Global Legislation Overview Update 326 (2020).

[15] Jamaica: Time for Stronger Police Accountability, 36 Amnesty Int’l 4 (2020).

[16] Id.

[17] Chaney, supra note 2, at 378.

[18] Id.

[19] Edwards-Grey, supra note 1.

[20] Id. at 8.

[21] Id. at 9.

[22] U.S. Dep’t of State, Jamaica 2022 Human Rights Reports 16 (2022).

[23] Edwards-Grey, supra note 1, at 79.

[24] Id.; Staff Orders for the Public Service in Jamaica § 13.1 (2004).

[25] Edwards-Grey, supra note 1 at 6.

[26] Asylum applications and refugees from Jamaica, WorldData, https://www.worlddata.info/america/jamaica/asylum.php#:~:text=1%2C275%20people%20from%20Jamaica%20fled,Canada%20and%20Trinidad%20and%20Tobago (last visited September 10, 2023).

[27] INA § 208(b)(1)(B)(i).

[28] INA § 101(a)(42)(A).

[29] Matter of M–E–V–G–, 26 I&N Dec. 227 (BIA 2014).

[30] Matter of Acosta, 19 I&N Dec. 222. See Doe v. Holder, 736 F.3d 871, 878 (9th Cir. 2013).

[31] Id.

[32] Id.

[33] Bromfield v. Mukasey, 543 F.3d 1071, 1077 (9th Cir. 2008).

[34] 8 CFR §§ 208(b)(2)(iii)(A) and (B).

[35] Bromfield, 543 F.3d at 1077.  

[36] Id. at 1078. 

[37] Edwards-Grey, supra note 1.