Protecting rights and freedoms for all

Sometime around May 18, I watched a video on Facebook where a boy - allegedly a student of Camperdown High - cursed an older man who is alleged to be a teacher at that same institution. He spouted abuse at the teacher on the premise of his being gay, while other students laughed and cheered him on.

This is one of a litany of incidents in which lesbian, gay, bisexual and transgender (LGBT) Jamaicans have been harassed. In the minds of many, however, the little boy was defending public morality and bravely confronting iniquitous behaviour. That he was reversing the roles of authority was of no consequence, since the alleged transgression of being gay is so grave.

It is disheartening that our children grow up in a society where such behaviour is glorified and celebrated because we do not agree with homosexuality. Whatever our conviction(s), we should be respectful to LGBT Jamaicans.

I hope the Love March Movement (LMM) and the Jamaica Coalition for a Healthy Society will begin to encourage us to be respectful to our LGBT brothers and sisters so Jamaica will be (more?) "cohesive and just" and less violent. After all, a healthy society is built on love, tolerance and respect, right?

As I reflect on this shameful video, I wondered what impact J-FLAG's 'Unconditional Love' ad featuring former Miss Jamaica World and Miss Jamaica Universe - Christine Straw, and her brother, Matthew Straw, who is gay; and AIDS-Free World's 'Love and Respect' ad could have had on preventing the young boy's actions. I imagine both would have been effective in promoting rights and responsibility - to make our country a more hospitable place for everyone, including gays and lesbians.

Both ads were rejected by local media entities. The 'Love and Respect' ad is now the reason for a historic case before the Supreme Court where a Jamaican citizen is challenging CVM, TVJ and the Public Broadcasting Corporation of Jamaica (PBCJ) on constitutional grounds for their refusal to air the paid advertisement.

This is the first such challenge concerning Jamaica's freshly inked Charter of Fundamental Rights & Freedoms, and while at face value it is designed to determine the extent of Jamaicans' right to freedom of expression, it also is a challenge to Jamaica's systemic homophobia. The outcome will have very far-reaching implications for the enforcement of rights against private citizens and our approach to democratic governance in Jamaica.

Many Jamaicans are thinking Maurice Tomlinson, the claimant, is pushing a 'foreign agenda' and tramping on our freedoms to disagree with homosexuality. Many have said gay sex is illegal, and by supporting the human rights of LGBT Jamaicans we, including the TV stations, would be aiding and abetting an illegal act.

CHARTER'S SCOPE

I met with Tomlinson earlier this week to get a better sense about his declaration that the stations violated his constitutional right to freedom of expression, by restricting his right to disseminate or distribute ideas through any media as set out inChapter 13 of the charter.

The Charter of Rights, which was enacted in April 2011, significantly enhanced citizens' rights to freedom of expression and explicitly states that private citizens have a responsibility to respect the constitutional rights and freedoms of others. Tomlinson contends that these rights apply vertically from government to citizen, as well as horizontally, from citizen to citizen (including artificial legal persons such as companies).

Holders of broadcast licences, therefore, have a greater responsibility to respect and uphold the right to freedom of expression of Jamaicans, especially as is the case with the two private stations, which hold a virtual duopoly on the television transmissions in the island. According to Tomlinson, the case is much more than his advocacy for the rights of LGBT Jamaicans.

He says: "If we win this case, it would create a significant legal precedent in Jamaica, as it would be the first time the Constitution was used to enforce human-rights recognition by non-state actors."

We must understand that while certain acts associated with male homosexuality are illegal in Jamaica, the mere fact of being lesbian, gay, bisexual or transgender is not. There is no attempt to force Jamaicans to associate with persons like Maurice; only to give effect to their constitutional rights to freedom of expression and access to the media.

I understand the attorney general's written submission in the case confirms this new constitutional provision was deliberately meant to require private citizens to respect the rights and freedoms of others. With that in mind, it becomes evident that respect for the rights of others is a constitutionally entrenched concept that ought not be negated by religious dogma, or cultural whims.

We cannot say we are defending freedom yet become defensive when someone calls for those same freedoms to be extended to them simply because we don't like them. The Constitution is designed for every Jamaican citizen, not only those who are highly favoured.

Jaevion Nelson is a youth development, HIV and human-rights advocate. Email feedback to columns@gleanerjm.com and jaevion@gmail.com.