Have Commonwealth Caribbean Courts been Consistent in Interpreting Non-Discrimination and Equality Rights in Sex Discrimination Cases?

Paul Mc Burnie

Abstract

Courts across the Commonwealth Caribbean have been faced with a plethora of sexual discrimination cases. National courts apply several approaches of interpretation when determining whether one’s right to freedom from discrimination on the basis of sex has been contravened. A review of the approaches to constitutional interpretation utilized by courts points to the fact that earlier approaches, mainly textualism and originalism, restrict the courts’ interpretation. On the other hand, modern-day approaches of purposivism along with analogous grounds and the use of international law provide for a more expansive interpretation, facilitating protection against discrimination on the basis of sex. However, a clash in the approaches used by the two apex appellate courts of the Commonwealth Caribbean, coupled with the fact that various jurisdictions are bound by stare decisis to follow the diverging precedent of these two courts, has caused inconsistent interpretation and bestowal of rights and protections in sex discrimination cases. Highlighting the inconsistent interpretation by courts across the Caribbean, leads this article to provide some thoughts on the approach that gives effect to the full measure of fundamental rights and freedoms, including non-discrimination rights.

I. Introduction

The Caribbean Courts interpretation of non-discrimination rights and equality rights, particularly on the grounds of sex, continue to be closely scrutinized by Caribbean judges and legal academics alike. Even twenty-one years after the establishment of the Caribbean Court of Justice (CCJ), Caribbean courts are continuously charged with the responsibility of interpreting fundamental rights and freedoms generously in order to endow citizens with the fullness of their rights.272 This includes the right to freedom from discrimination on the grounds of sex, colour, creed, race, political opinions or place of origin as seen in section 13(3) of the Constitution of Grenada, and the right to equality as seen in section 4(b) and (d) of the Trinidad and Tobago Constitution – providing the right to equality before the law, protection of the law, and the individual’s right to equal treatment from any public authority in the exercise of any functions.

Markedly, there exist diverging views regarding the interpretation of fundamental rights, including non-discrimination rights, as the approaches and judgements of the CCJ are broadly dissimilar to those of the Judicial Committee of the Privy Council (Privy Council). The Privy Council remains unwavering in adopting a restrictive approach of constitutional interpretation, derived mainly from reliance on textualism and originalism, which is maintained even when interpreting fundamental rights. However, the CCJ’s adoption of a purposive and expansive approach to the interpretation of fundamental rights and freedoms, depicts a completely different route to that taken by the Privy Council. Notably, the approach to be taken by Caribbean Courts in their interpretation of non-discrimination rights on the basis of sex remains important, as their rulings can either contribute to the continued progression of sound West Indian jurisprudence in the area of sex discrimination or can reverse decades of precedent.

This paper contends that in sex discrimination cases, courts across the Commonwealth Caribbean have been inconsistent when interpreting the non-discrimination and equality provisions contained in Caribbean constitutions. The author first examines the court’s general treatment of grounds of discrimination, and explores the approaches to constitutional interpretation, those of which are utilized when interpreting the scope of discrimination on the basis of sex. The author then discusses whether there has been consistency in the Caribbean courts interpretation of non-discrimination rights in sex discrimination cases, addresses the challenge posed with the conflicting views of the Privy Council and the CCJ, and finally forms the view on which approach is consistent with giving effect to the plenitude of fundamental rights within the constitutions of the region.

II. Grounds of Discrimination

A. The Courts general treatment of grounds of discrimination

Discrimination is defined as “affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”

273 As noted by Justice Barrow in A-G of St. Christopher and Nevis et al v Jones, 274 the crux of discrimination is different and less favourable treatment. In cases of alleged discrimination, the burden of proof rests on the claimant to establish that the treatment he received was different and less favourable by comparing his treatment to that of another person in a similar situation, whether fictional or not. This rule is known as the comparator approach, established in Bhagwandeen v A-G of Trinidad and Tobago 275 While in Bhagwandeen it was noted that constitutional relief will not be granted where the claimant fails to establish a comparator,276 the case further brought out that the comparator must be one where similarity is shown on the issue of the alleged discriminatory act; not just mere similarity as to a specific fact of the case. In that case the appellant police constable had been selected for promotion in 1984 under public service regulations.277 The appellant was subsequently suspended and then reinstated in 1998 following the dismissal of charges of assault. However, following his reappointment, the appellant was disqualified from promotion due to his long suspension from duty. He filed a constitutional motion claiming discrimination because of the Commissioner’s refusal to recommend him for promotion, contrary to section 4(b) and (d) of the Constitution. Though the appellant’s comparator was Sergeant Fitzgerald George, who received a promotion about

273 s 13(3) of the Constitution of Grenada; s 13(3) of the Constitution of St. Vincent and The Grenadines; s 12(3) of the Constitution of St. Lucia; etc.

274 KN 2003 HC 37 [31]. Kaleel Jones was refused entry into school until he had complied with the rule that boy’s hair must be cut short as per the rules and regulations of the school related to uniform and appearance. The claimant contended that the rule was discriminatory on the basis of sex because it discriminated against boys. Though affirmed following judicial review, the State appealed and the Supreme Court overruled the decision stating that different and less favorable treatment is the meaning of discrimination; not merely different treatment.

275 [2004] UKPC 21 [18].

276 Bhagwandeen (n 275)

277 Ibid seven months after his reinstatement following a long period of suspension, the Sergeant was rejected as a legitimate comparator on the grounds that the only similarity was the length of the suspension278 which the court determined to be irrelevant. The comparator must be a similarly circumstanced person279 and if this is not demonstrated one would have no basis for a claim of discrimination. The Court’s treatment of Mr. Bhagwandeen’s claim is testimony to the fact that different and less favourable treatment is the root of discrimination.

The comparator approach has also been adopted in the Trinidad and Tobago Constitution. In the case of Webster et al v A-G of Trinidad and Tobago, 280 it was noted that the current approach to section 4(d) of the Trinidad and Tobago Constitution is that the acts of discrimination must be analogous, comparable, or broadly similar; not identical. Any differences between them must be material to the difference in treatment.281

A distinction is drawn between discrimination and equality as they convey slightly different meanings within the constitutional law framework. As such, the Court’s general treatment and interpretation of the two differs. From gleaning the anti-discrimination provisions of conventional model constitutions, it is observed that the broad language of equality is strikingly absent. Case in point, section 12(3) of the Constitution of Grenada, defines discrimination to a specific set of enumerated grounds – race, place of origin, political opinions, colour, creed or sex. As a result of this clear-cut definition of discrimination, courts have asserted that the language means that conventional model constitutions do not guard against any whimsical ground of discrimination. Simply put, courts customarily interpret non-discrimination provisions as meaning that the only prohibited grounds under which constitutional claims of discrimination can be brought, are those explicitly stated in the provision.

Equality is a much broader concept than discrimination. Section 4(b) the Trinidad and Tobago Constitution provides “the right of the individual to equality before the law and protection of the law”, and section 4(d) provides “the right of the individual to equality of treatment from any public authority in the exercise of any functions.” Similar provisions are also seen in the Constitution of Jamaica which transitioned by way of amendment, from the conventional model constitution to the Trinidad and Tobago model. Courts have asserted that the general language of equality used in new model constitutions means that claims for discrimination are not strictly limited to those listed grounds within the equality clause. Rather, it allows numerous kinds of less favourable treatment to be brought through the door of the court, for constitutional challenges.

B. Inclusion of sex as a prohibited ground of discrimination in specific Commonwealth Caribbean countries

Several Commonwealth Caribbean countries have included either the general principle of equal treatment or have chosen to define the grounds of discrimination within the non-discrimination provisions of their constitutions. Sex is included as a ground of discrimination in the constitutional provisions of the following Commonwealth Caribbean countries: Grenada, St. Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines, Antigua and Barbuda, Belize, Dominica, Guyana, Trinidad and Tobago, Jamaica, Montserrat, The Cayman Islands, Anguilla, Turks and Caicos and The British Virgin Islands Citizens in these jurisdictions are explicitly afforded a constitutionally protected right against discrimination on the grounds of sex. This inherently saves the court time in determining one step of a sex discrimination action in these jurisdictions – whether sex is a ground of discrimination provided for under the constitution. Notably, Montserrat, Turks and Caicos and the British Virgin Islands are the only jurisdictions that have also expressly included sexual orientation as a basis of discrimination.

C. Non-inclusion of sex as a prohibited ground of discrimination in specific Commonwealth Caribbean countries

While the concept of equality and non-discrimination is intrinsic in Commonwealth Caribbean constitutions, sex is not a listed ground of discrimination within all Commonwealth Caribbean constitutions. This is seen in the jurisdictions of Barbados, Bahamas and Bermuda. Such an omission begs the question: can one legitimately discriminate against another on the basis of sex and there be no constitutional remedy for the individual disproportionately affected? Can sex be treated as an analogous ground and thus be read into the non-discrimination provision?

Strikingly, section 13(3)(i) of the Constitution of Jamaica provides the right to freedom from discrimination on the grounds of, inter alia, being ‘male or female’. This rare crafting of sex as a ground of discrimination unveils Jamaica’s attempt to ensure that sex does not include sexual orientation. However, a later examination of case law will instinctively answer whether Jamaica’s peculiar crafting of its sex discrimination provision bar the courts from treating sexual orientation as an analogous ground to be read into the non-discrimination provision.

III. Discrimination on the Grounds of Sex

A. Early approaches to interpreting the scope of discrimination on the basis of sex

1. Textualism and Originalism (Restrictive approaches)

While some academics have classed textualism and originalism as two separate theories of constitutional interpretation, the author contends that they in fact work in tandem and give effect to the same result. Textualism focuses on what a stated piece of text reasonably means when read, rather than focusing on what it was intended to mean, so as to give effect to the text’s objective meaning.282 In the context of constitutional interpretation, Professor Caleb Nelson asserts that textualism considers the “legislative process as a black box that spits out the laws to be interpreted”283 and that one must be held to these legal requirements that are clearly stated.284 The textualism theory, also referred to as the plain meaning theory, ought not to be dubbed a ‘theory’ per se because this manner of interpretation can be deemed as second nature to any average reader. Reading a text to understand what is stated in print, is the first thing all human beings naturally do. The view that textualism should not be labelled a ‘theory’, has been embraced by Professor Robert Post asserting that the approach is a depiction of what is normally done when there are no contentions with constitutional meanings.285

Originalism, focuses on the Constitution and its provisions being interpreted according to its original meaning, so as to prevent judges from making unguided value judgements of their own and changing constitutional provisions through judicial interpretation.286 This approach is backed by several notions such as: constitutions were enacted with a certain meaning prior to being subject to judicial interpretation; changing the meaning of a law equates to changing that law; where constitutional interpretation results in changes to the constitution, its undermines democracy, the rule of law, and the constitution as a whole.287 In essence, originalism suggests that constitutional amendments and other constitutional law processes are the avenues for making changes to constitutional provisions; not judges.

These approaches denote that the courts must remain within the four corners of a black box of laws and are restricted from venturing outside of it to consider legislative intent. Textualism

282 Caleb Nelson, ‘What is Textualism’ (2005) 91 Virginia Law Review 352, 356.

283 Ibid 358.

284 Ibid 352.

285 Robert C. Post, Law and Order of Culture (University of California Press 1991) 14.

286 Arvind Datar and Rahul Unnikrishnan, ‘Interpretation Of Constitutions: A Doctrinal Study’ (2017) provides the least scope for inventiveness and curtails judicial discretion.288 Originalism produces an equivalent result. With regards to non-discrimination rights in sex discrimination cases, several cases have depicted the Privy Council adopting the approaches of textualism and originalism by refusing to grant relief for discrimination claims on the grounds of sex, where sex was not expressly included within the words of the antidiscrimination section. In Poongavanam v R (Mauritius)289 a man who was convicted of murder and sentenced to capital punishment by an all-male jury of nine claimed, inter alia, that the omission of women from the jury service was discriminatory on the basis of sex, contravened sections 3 and 16 of the Constitution, and therefore violated his right to fair trial. The Court held that sex was a basis for discrimination merely within the opening section of the Bill of Rights of the Constitution (section 3), however it was excluded in the antidiscrimination section (section 16(3)). Lord Goff of Chieveley, asserted that the opening section was unable to ground discriminatory claims because its exclusion in the antidiscrimination provision was deliberate. As such, the Court held that there was no discrimination on the basis of sex. The same reasoning was also applied and followed in an earlier case – Peerbocus v R 290

29 National Law School of India Review 136, 139.

287 Ibid 140.

Notably, the reason for this distinction between the enforceability of rights in the opening section and enumerated section of the constitution has continuously been lauded by the Privy Council. In Newbold v The Commissioner of Police291 the Privy Council reasoned that the opening section of constitutions outlines the ensuing enumerated provisions that shall have effect, and because the opening section does not form part of the binding enumerated provisions it cannot be separately justiciable. The Privy Council stated that because of the preambular nature of the opening section it was not intended to convey substantive rights of protection for citizens.292 This was also affirmed, for similar reasons, in Matadeen et al v Pointu et al293 where the Privy Council pronounced that equality provisions in the opening section of the Bill of Rights cannot be construed as freestanding rights and that they are incapable of independent enforcement. As such, a discriminatory claim can only be brought under one of the grounds enumerated in the antidiscrimination provision. Notably, all the aforementioned judgements were delivered before the advent of the revolutionary decision of Nervais and Severin v R294

288 Datar, (n 286).

289 [1992] UKPC 13.

290 [1991] M.R. 90.

291 [2014] UKPC 12 [32]–[33].

292 Ibid.

293 (1998) 229 NR 369 (PC).

294 [2018] CCJ 19 (AJ) [41] where the CCJ engaged in an expansive interpretation of the redress clause and pronounced that rights stated in the opening section of Constitutions are justiciable, regardless of being excluded from the detailed provisions. The author is of the view that this decision has paved the way for the CCJ’s expansive interpretation of the scope of antidiscrimination provisions.

Another case where the restrictive approaches of textualism and originalism were adopted is Nielsen v Barker and Anor. 295 Here, the Court of Appeal of Guyana held that sex was not expressly included as a basis for discrimination within the non-discrimination provision (Article 149(2)) of the Constitution, and so claims of discrimination on the grounds of sex would not prevail.

Massiah JA reasoned that the word discriminatory possessed a limited and precise meaning and its application must be confined to the narrow definition and grounds prescribed in Article 149(2). He further asserted that the enforcement of grounds not stated within the detailed section, is outside the scope of constitutional guarantee “no matter how reprehensible such grounds may appear to be.”296 Massiah JA’s approach proves to be a strong example of both approaches working in tandem – declaring that the discriminatory provision when read reasonably means that only the grounds listed are bases for discriminatory protection (textualism), and that this original meaning of the provision must be upheld absolutely (originalism). Such forceful dicta by Massiah JA reveals the extent to which the Court was willing to go to uphold the letter of the law, even to the detriment of the same citizens it was intended to protect.

Fast forward to the present, the approaches of textualism and originalism continue to operate within some jurisdictions of the Commonwealth Caribbean. In Jeffers et al v A-G of St. Christopher and Nevis297 a police officer had circulated a sexually explicit recording of the claimant engaging in sexual activity in private at home. The claimant, a homosexual and citizen of St. Kitts and Nevis, initiated a constitutional motion claiming that sections 56 and 57 (buggery and sodomy laws) of the Offences Against the Person Act (“OAP”), contravened constitutional rights afforded in sections 3, 12 and 15 of the constitution (the right to protection of personal privacy, the right to freedom of expression, and the right against discrimination based on sex respectively). He sought a declaration that sections 56 and 57 of the OAP were null, void and of no effect on consensual sexual intercourse in the privacy of the home between individuals above the age of majority.298

On this issue of discrimination on the grounds of sex, the claimant argued that the Act violated his right to equality of treatment because it discriminated against gay men. He contended that discrimination on the grounds of sex can be read to include sexual orientation299 relying upon, inter alia, General Comments on the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women which had been ratified by St. Kitts.300 However, the High Court relied on a narrow meaning of ‘sex’ asserting that the natural and ordinary meaning of the word refers to gender, that sexual orientation is not the same as gender, and that sexual orientation is not a prescribed ground for discrimination.301 The Court’s reasoning, inter alia, was that while acts of buggery and sodomy may or may not be an expression of sexual or gender identity,302 the Court regarded these acts as gender neutral as the offence can also be carried out between males and females and between heterosexual and homosexual males.303 The Court declined to grant a declaration of discrimination on the grounds of sex, but ultimately struck down Sections 56 and 57 of the OAP by declaring that it contravened the rights to freedom of expression and protection of personal privacy. This reasoning was also briefly hinted at in Jones v A-G of Trinidad and Tobago304 where Rampersad J held that the buggery and serious indecency laws in Trinidad and Tobago breached the claimants right to freedom of expression, among other things. Though claims of discrimination on the basis of sex was not submitted, the Court in its judgement shot down the thought of such a contention stating that the offences applied to both men and women.305 While the author agrees that sex discrimination cannot arise where the law applies to both sexes equally; where the law produces a more disproportionate effect on one sex more than other, it can equate to sex discrimination.

Nonetheless, it cannot be ignored that the Privy Council and Courts of Caribbean jurisdictions that have acceded to the Privy Council’s appellate jurisdiction, use pointlessly technical arguments to justify their constricted interpretation of non-discrimination rights. Although, the

298 Ibid.

299 Ibid [83] [95].

300 Ibid [95].

301 Ibid [101].

302 Ibid [103]–[105].

303 Ibid.

304 TT 2018 HC 137.

305 Ibid [87].

Privy Council took one step forward with the introduction of the ‘living tree doctrine’ which promoted a broad and liberal reading of the Constitution so that it becomes adaptable with the changing times,306 they have taken ten steps backward by failing to maintain the application of the doctrine in the judicial interpretation of fundamental rights and freedoms. The Courts hide behind the notion of giving effect to the intention of the drafters (as seen in Newbold307) and so they engage in trite application of the law in order to escape the challenges of judicial interpretation and becoming ‘social engineers.’ This laissez-faire approach proves to be flawed. The Privy Council fails to appreciate that courts must use the notion of the framers’ intention flexibly to interpret the language of the constitution and its surrounding circumstances and context.308 This assertion which was made by Professor Tracy Robinson, is indeed merited as fundamental rights must be interpreted generously to endow citizens with the full measure of those rights as constitutions are sui generis instruments.309 This principle equally applies to non-discrimination rights.

B. Modern day approaches to interpreting the scope of discrimination on the basis of sex

1. Purposivism (Expansive approach)

Purposive interpretation, also referred to as purposivism, strikes a balance between subjective purpose i.e., the intent of the drafters of the constitution, and objective purpose i.e., the intent of the system.310 The approach underscores that the meaning to be ascribed to fundamental rights and freedoms ought to be determined from an analysis of the purpose of such guarantees.311 Academics have noted that purposive interpretation came about in response to the textual insufficiency of constitutional provisions and from an effort to avoid the contentions that courts are using judicial decision making as a disguise to engage in law making.312 Purposivism allows for the expansive interpretation of fundamental rights so as to be on par with societal developments, without deviating from the central principles that led to the establishment of those fundamental rights.313 The latter is of critical importance because the fear that tends to arise is not that a plain reading of fundamental rights would protect too little, but that it would protect too much. While such arguments are merited to a certain extent, the constitution has already contemplated such problematic instances of an abuse of rights by citizens, hence providing a finite or closed list of grounds for protection of rights. This is evidently seen in non-discrimination provisions. While the author agrees with Oliphant’s assertions that there are instances where courts have used purposivism as a constraint on constitutional meanings so as to limit the broader interpretation of a right,314 the reader is reminded that this would only amount to purposivism where an assessment is made of the purpose for which the constitutional provisions were included. Where constraints on constitutional meanings emanate from merely confining constitutional interpretation to the four walls of the enumerated grounds this would not amount to purposivism and thus cannot be regarded as such. Notably, the crux of purposivism, particularly in sex discrimination cases, involves going beyond this by allowing the decision maker to venture outside the textual structure of the provision in discrimination claims comparable to the listed grounds. However, the decision maker must still be constrained to the principles and purposes that underly the text.315

306 Edwards v A-G of Canada [1930] AC 124.

307 Newbold (n 291) [24]–[25].

308 Tracy Robinson, Arif Bulkan and Adrian Saunders, Fundamentals of Caribbean Constitutional Law (Thomson Reuters 2015).

309 Fisher (n 272).

310 Datar, (n 286) 143.

311 Ibid.

312 Benjamin Oliphant, ‘Taking Purposes Seriously: The Purposive Scope And Textual Bounds Of Interpretation Under The Canadian Charter Of Rights And Freedoms’ (2015) 65 University of Toronto Law Journal 239, 252.

313 Datar, (n 286) 143.

2. Analogous grounds

In the context of discrimination, the doctrine of analogous grounds focuses on extending express grounds of discrimination to include other bases for discrimination that are conceptually comparable to other personal characteristics within the enumerated provisions.316 Corbiere v Canada (Minister of Indian and Northern Affairs)317 asserted that the listed grounds of discrimination are personal characteristics that are immutable or changeable only at an unacceptable cost to personal identity. As such, to class an unlisted ground of discrimination as analogous to the listed grounds it must be determined whether a particular personal characteristic is immutable or changeable in the same vein as expressed above (immutability test).318 Analogous grounds ought to be based on characteristics that one cannot change or that the state has no legitimate interest in expecting one to change to receive equal treatment under the law.319 In Canada, the enumerated grounds of discrimination are those explicitly listed in the non-discrimination section (section 15(1)) of the Canadian Charter of Rights and Freedoms (i.e. national or ethnic origin, race, sex, religion, color, age, and physical/mental disability). Through the doctrine of analogous grounds, the Supreme Court of Canada has extended this list to recognize comparable grounds of discrimination to those expressly listed – those comparable grounds being marital status, citizenship, sexual orientation, aboriginal residence.320

314 Oliphant, (n 312) 255.

315 Oliphant, (n 312).

316 Rosalind Dixon, ‘The Supreme Court of Canada and Constitutional (Equality) Baselines’ (2013) 50 Osgoode Hall Law Journal 637, 643.

317 [1999] 2 SCR 203 [13].

318 Ibid.

319 Dixon, (n 316) 649.

3. International law

The Equal Rights Trust Declaration on the Principles of Equality asserts that the right against discrimination is a fundamental and free-standing right, included in the right to equality.321 This forms part of international human rights law. In addition, the Universal Declaration of Human Rights (UDHR) notes that everyone is entitled to all the rights and freedoms within the declaration ‘such as’322 the bases listed. By virtue of the word ‘such as’ the grounds for discrimination that are listed are not constricted. Rather this provision provides the elasticity for an expansive interpretation to read other bases of discrimination into it. As such, antidiscrimination provisions of a constitution should also be interpreted bearing in mind a state’s international legal obligations which promotes an open listing of grounds for discrimination.

The CCJ advances that states ought to be compliant with international obligations forming part of the rule of law Where a State ratifies an international treaty which forbids discrimination on the grounds of sex (e.g., International Covenant on Economic, Social and Cultural Rights) and/or has open listed grounds of discrimination, the relevant international treaty would create binding obligations for the state. In dualist systems where a treaty is both ratified and incorporated it will form part of the state’s national laws and its provisions will have binding effect upon the state. This means that the rights within the treaty can be enforced by a citizen claiming discrimination based on sex, where sex may be excluded as a listed ground in the antidiscrimination section of the constitution. Even where a dualist state has merely ratified but not incorporated an international treaty, a citizen can rely on the principle of legitimate expectation as where a state agreed to be bound by international legal obligations, the state expresses the likelihood of its intentions to comply with such obligations.323

320 Ibid 642.

321 The Equal Rights Trust, Declaration of Principles on Equality Section 4 (2008).

322 Art. 2, The Universal Declaration of Human Rights (1948).

323 Fisher (n 272).

The following cases demonstrate the author’s view that purposivism, along with other modernday approaches, can lend to expansive approaches in interpreting the scope of discrimination on the grounds of sex. Orozco et al v A-G of Belize324 depicts both purposivism and the doctrine of analogous grounds operating in tandem. The claimant, a homosexual man, challenged the constitutionality of section 53 of the Criminal Code to the extent that it applied to anal intercourse between two consenting male adults in private. The claimant contended that criminalization of his sexuality was, inter alia, a breach of his right to equality afforded by section 6(1) of the Constitution.325 Though ‘sex’ was a ground for discrimination and not ‘sexual orientation’, the Court engaged in an expansive reading of the listed grounds to include sexual orientation. Markedly, this was done by relying on the 1966 International Covenant on Civil and Political Rights’ (ICCPR) meaning of the word sex which was interpreted by the UN Human Rights Committee (UNHRC) to include sexual orientation.326 Given that Belize had acceded to the ICCPR the Court held that the UNHRC’s interpretation was endorsed by the state and so the court was able to read the ground of sexual orientation into the detailed provision.327 Notably, the application of Canada’s immutability test would have been satisfied in this instance to regard sexual orientation as an analogous ground for sex. As such, it stands to reason that Corbiere328 was fit to serve as persuasive precedent in Orozco.329 Egan and Nesbit v Canada330 provides guidance as it is also illustrative of the Court’s adoption of purposivism. Here the word ‘spouse’ in the Old Age Security Act meant a person of the opposite sex and discriminated against two homosexual men. The court employed an expansive interpretation of section 15 of the Canadian Charter of Rights and Freedoms and used the doctrine of analogous grounds (using the immutability test) to declare discrimination on the grounds of sexual orientation, despite its exclusion from the detailed section. Interestingly, Bermuda has demonstrated an inventive means of giving effect to purposivism, and by extension protection against discrimination on the grounds of sex. To date Bermuda, along with Barbados and the Bahamas, have not listed sex as a ground for discrimination within the detailed provisions of their Constitutions. While there exists the option of making constitutional amendment which Bermuda has demonstrated an eagerness to work towards, the government made the bold move of enacting the Bermuda Human Rights Act (HRA) 1981. The HRA supplements the rights and freedoms endowed by the Constitution by extending the grounds for discrimination to include sex or sexual orientation.331 The author contends that Bermuda, while fully cognizant that its Constitution is a living instrument that must continue to be relevant to the present-day realities and needs of its society, but aware of the timeconsuming nature and rigors involved with constitutional amendments, took the approach of purposivism to an advanced level. The Act struck a balance between subjective and objective intent of discrimination, it was a permanent solution to the textual insufficiency of the provisions of discrimination within the Constitution, it maintained the core of the purpose which underlay the reason for the Constitution’s non-discrimination provisions, and it reduced the risk of the court engaging in judicial law making on issues of discrimination. The adoption of an advanced method of purposivism has afforded claims of discrimination on the grounds of sex or sexual orientation greater chances for success, as applicants rely upon the HRA. In A & B v Director of Child and Family Services and Anor332 an unmarried same-sex couple sought to legally adopt a child whom they were raising within their care. However, section 28(1) of the Adoption Act 2006 prohibited the plaintiffs from making a joint application for adoption because they were unmarried and were unable to marry in Bermuda. They contended that the Adoption Act was discriminatory on the basis of marital status because it precluded them from applying as a couple, and that it was discriminatory on the basis of sexual orientation because it was not open to them to become eligible to adopt as a couple by getting married.333 Relying on section 5 of the HRA and more importantly section 2(2)(a)(ii) of the HRA which afforded sexual orientation as a ground for discrimination, the court held inter alia, that the Adoption Act discriminated against same-sex couples because of their sexual orientation.334 From that point onward in Bermuda, less favorable treatment on the grounds of sex has continuously been declared discriminatory as the Courts have found support for interpreting this right in an expansive and purposive manner, despite its exclusion from the Constitution. Case in point, Godwin and Anor v The Registrar General 335 Here, two males who wished to be married were refused a marriage license by the Registrar citing reasons that marriage was between a man and a woman. The court declared, inter alia, that the Registrar’s actions contravened the HRA by discriminating against the claimants’ sexual orientation and that same-sex couples were permitted to be married under the Marriage Act 1944.336

324 (2016) 90 WIR 161.

325 Ibid [2].

326 Ibid [93].

327 Ibid [94].

328 Corbiere (n 317).

329 Orozco (n 324).

330 [1995] 2 SCR 513.

331 S 2(2)(a)(ii) Bermuda Human Rights Act 1981.

332 [2015] 4 LRC 658.

333 Ibid 659.

334 Ibid 669.

335 [2017] 3 LRC 596.

Other cases include Griffith et al v Minister of Home Affairs et al337 where section 27A of the Bermuda Immigration and Protection Act was discriminatory on the basis of sex because the immigration rights afforded to foreign spouses of Bermudian women were different and less favorable to the immigration rights of foreign spouses of Bermudian men. Also, Bermuda Bred Company v Minister of Home Affairs et al338 where the court affirmed discrimination on the grounds of sexual orientation because immigration rights that were afforded to spouses (man and woman) in section 25 and 60 of the Bermuda Immigration and Protection Act, were less favorable to the rights that could be enjoyed by same-sex partners because of their sexual orientation.

It is noteworthy that the judgement in Bermuda Bred339 shed light on the fact that even where statute is phrased in such a way so as to apply to ‘man’ and ‘woman’, this does not preclude the court from venturing outside the provision’s textual structure to extend it to an analogous ground, if necessary. As such, in Jamaica where prohibited grounds of discrimination include ‘being male or female’, the court can nonetheless rely on the doctrine of analogous grounds to ground a claim of discrimination on the basis of sexual orientation as was done in Orozco.340

IV. Is there Consistency in Commonwealth Caribbean Courts’ Interpretation in Sex Discrimination Cases?

A review of the case law discussed in the previous chapters demonstrate that there has been little to no consistency in the Commonwealth Caribbean, in interpreting discrimination rights in sex discrimination cases Prior to the 21st century, there existed only one apex appellate court with jurisdiction within the Caribbean – the Privy Council. As such the restrictive approach taken by the Privy Council served as binding precedent for all Caribbean jurisdictions. The Poongavanam341 and Peerbocus342 judgements proved to be two seminal precedents during the 1900s which adopted the trite and restrictive textualist and originalist approaches in order to give effect solely to the letter of the law i.e., only listed grounds of discrimination could be a basis for a discriminatory claim. In examining the law during that same period, the author argues that Nielsen343 was inevitably guided by the restrictive precedents of the Privy Council in the interpretation of sex discrimination claims. The argument that Nielsen344 was guided by the sole apex appellate court of its era which amounted to a mere copy and pasting of precedent without consideration of the social realities of the Caribbean and Guyana at that time, is further buttressed by the author’s view that Guyana sought to right its wrongs via constitutional amendments,345 coming out of the 20th century. These constitutional amendments included, inter alia, the inclusion of sex as a ground for discrimination within the non-discrimination provision. Such a move by Guyana is evidence of the fact that its continued reliance on the Privy Council’s precedent was no longer sustainable, and it did not grant the underlying relief of discriminatory protection and other safeguards that were intended for its citizens. With the establishment of the CCJ, there has been a shift within the Commonwealth on the interpretation of non-discrimination rights – moving away from the constricted approaches of textualism and originalism, to that of purposivism. However, despite the advent of the CCJ, merely five Commonwealth Caribbean jurisdictions have acceded to the appellate jurisdiction of the CCJ to-date i.e., Guyana, Barbados, Belize, Dominica, and most recently St. Lucia as of May 2023. All other jurisdictions have retained the Privy Council. Consequently, the Caribbean has experienced a clash of approaches related to the interpretation of fundamental rights, including non-discrimination rights. The restrictive approaches to interpretation continue to thrive within the Caribbean, while at the same time growth of the expansive approach is constrained. This has affected the consistent application of one singular thread of interpretation within the Commonwealth Caribbean.

336 Ibid 598.

337 [2016] SC Bda 62 Civ.

338 [2015] SC Bda 82 Civ.

339 Ibid.

340 Orozco (n 324).

341 Poongavanam (n 289).

342 Peerbocus (n 290).

A. Effect of the clashing approaches to interpretation within the Commonwealth Caribbean

As a result of the differing approaches adopted by these two apex appellate courts, Commonwealth Caribbean countries that have held onto the Privy Council as their final Court of Appeal are bound by the doctrine of stare decisis to follow the precedent set by the Privy Council. However, CCJ rulings only serve as persuasive precedent to these jurisdictions and can be disregarded. Jurisdictions retaining the Privy Council continue to use technical barriers 343 and textual restrictions, to defend their stance of failing to find particular acts as being discriminatory on the basis of sex. Clear evidence of this is seen in Jeffers346 and Jones 347

Conversely, the Commonwealth Caribbean jurisdictions that have the CCJ as their final Court of Appeal are bound by stare decisis to follow the legal precedents laid down by the CCJ. Privy Council judgements are not binding upon these jurisdictions and can consequently be ignored. Accordingly, these Caribbean jurisdictions have consistently interpreted non-discrimination rights in sex discrimination cases expansively or have taken measures to provide for an expansive interpretation of sex discrimination. This is seen in the Guyana Constitution (Amendment) Act348 where the inclusion of sex as a ground for discrimination within the Constitution serves as an amplified mechanism for sex discrimination claims to be construed expansively. While Bermuda is yet to amend its Constitution to list sex as a prohibited ground for discrimination within the detailed section, the country’s enactment of the Human Rights Act adds to the safeguards for protection against discrimination by prohibiting discrimination on grounds inclusive of sex and sexual orientation in specific scenarios. This provides claimants with broad grounds upon which to base their sex discrimination claims; as opposed to the Constitution where ‘sex’ is absent in the detailed section. It is noteworthy that Barbados has taken measures akin to Bermuda to a certain extent in this respect through the adoption of the Employment (Prevention of Discrimination) Act.349 The Act zeros in on the prohibition of discrimination in various employment-related circumstances and notes that grounds for discrimination under the Act includes sex and sexual orientation.350 However, this limitation of the scope of the Act to employment-related instances does not allow claimants to use sex or sexual orientation as a basis to ground a discriminatory claim in other realms such as in other civil disputes, commercial disputes, consumer disputes, criminal disputes, student disputes, administrative disputes by public bodies and officials, etc. In those instances (once legislation does not exist to supplement the non-discrimination rights endowed within the Constitution), section 23(2) of the Constitution, can be relied upon However, this would give both the claimant and defendant an uphill task of proving or disproving that an alleged act was discriminatory on the basis of sex, as ‘sex’ is not included in the listed grounds. Notably, one can rely on the opening section of the bill of rights351, where sex is included, to ground a claim

346 Jeffers (n 297).

347 Jones (n 304).

348 Guyana Constitution (Amendment) Act (n 345).

349 Barbados Employment (Prevention of Discrimination) Act 2020.

350 S 3(2)(g)(h) Ibid.

351 S 11 of The Constitution of Barbados.

352 of sex discrimination As was pronounced in Nervais, rights within the opening section are also justiciable.

V. Restrictive vs Expansive: which approach gives effect to the plentitude of fundamental rights within the constitution?

It cannot be disputed that the approaches of textualism and originalism are relevant and have their place within the judicial and constitutional interpretation of fundamental rights and freedoms. Generally, courts have continuously affirmed that a person cannot have absolute enjoyment of a right and so limitations may be expressly or impliedly read into rights. This was declared in cases such as Panday v Gordon353 in which the court asserted that there are limitations on the right to freedom of expression as it must be balanced with the right to reputation. As such textualism and originalism work in such instances to ensure that rights are bestowed based on its plain and original meaning and that the limitations put in place within the detailed sections of fundamental rights are given effect and not circumvented.

Regarding the right of non-discrimination, to the extent that textualism and originalism function to afford citizens protection on the grounds contemplated by the constitution, these approaches further the intention of the drafters by ensuring that different and less favourable treatment are struck down. However, where different and less favourable treatment results on grounds that were not expressly contemplated for by the detailed section of the constitution (e.g., sex and sexual orientation), a textualist and originalist approach would be of no assistance in furthering the purpose of the provision. The adoption of a restrictive approach in the above instance would prove to be detrimental as it would fail to give effect to the full measure of the right against discrimination. Afterall, it is impossible for constitutions to contemplate each and every instance in which different and less favourable treatment could occur on the basis of one’s personal characteristics which are immutable or changeable only at an unacceptable cost to one’s personal identity.354 It stands to reason that the restrictive approach of interpreting nondiscrimination rights would not give effect to the plenitude of that fundamental right. This

352 Nervais (n 294). “…the Constitution itself envisaged that s 24 of the Constitution was not the only method of bringing proceedings. It should be sufficient to indicate that this has already been decided in A-G v Joseph and Boyce where the argument that s 11(c) protection of the law, was a non-justiciable right because it was excluded from the redress clause (s 24) was rejected on the ground that, independent of s 24, the Court had an implied power or an inherent jurisdiction to grant relief.” approach of interpretation is incapable of granting a remedy, where a right against discrimination has been proven outside the listed grounds.

353 [2005] UKPC 36.

354 Corbiere (n 317).

The purposive approach of interpretation is best suited to give effect to the full measure of fundamental rights, particularly the right against discrimination. This is because it strikes a balance between the intent of the drafters of the constitution, and the intent of the system,355 while remaining bound to the principles and purposes that underly the Constitution.356 However, if the courts in utilizing purposivism go beyond the purpose and intention of the drafters, then they must be stopped and reeled in, as this would amount to clear evidence of law making; not constitutional interpretation.

Within the Commonwealth Caribbean it is important that courts give effect to the full measure of fundamental rights, including non-discrimination rights, because Caribbean societies are continuously evolving, and so West Indian jurisprudence ought to be developed in order to keep up with the changing times. Purposivism allows the bestowal of fundamental rights upon citizens because it forces constitutions to be instruments of conscious change Ultimately, purposivism works to ensure that constitutions evolve with societies to reflect the spirit and will of the people because it is from this, that the constitution derives its operative meaning and force.357

VI. Conclusion

In conclusion, the differing approaches utilized by the Privy Council and the CCJ has led to the result of Caribbean courts inconsistently interpreting non-discrimination rights and equality rights on the grounds of sex. This is buttressed by the fact that Caribbean courts are bound by stare decisis to follow the precedent set by their apex appellate court. Textualism and originalism function to prescribe Courts to interpret the Constitution using the plain and original words clearly stated, and to consider the objective meaning of the non-discrimination provision This approach while favoured by the Privy Council, has been rejected by the CCJ. The CCJ has advocated the use of purposivism to give effect to the full measure of rights. Additionally, the doctrine of analogous grounds, and international law can work in tandem with purposivism to allow comparable grounds of sex and sexual orientation to be read into those listings where sex is excluded. This is the precedent followed by the courts of Caribbean jurisdictions that have acceded to the CCJ as their final appellate court. As noted, this clashes with the Privy Council’s approach that where sex or sexual orientation is not listed as a basis for discrimination in the detailed section of constitutions, textualism and originalism precludes the courts from considering other analogous grounds that claimants may use as a basis for discriminatory claims. This is the precedent followed by Caribbean jurisdictions which have retained the London-based Privy Council as their final Court of Appeal. Ultimately, the expansive approach of interpretation is best suited to give effect to the plenitude of fundamental rights, including the right against discrimination, as it encourages constitutions to be instruments of conscious change reflective of the societies and citizens that it governs.

355 Datar, (n 286) 143.

356 Oliphant, (n 312).

357 Rose-Marie Belle Antoine, Commonwealth Caribbean Law and Legal Systems (2nd edn, RoutledgeCavendish 2008) 100.