His Excellency Mr Stuart Jack CVO
Governor
Cayman Islands
Dear Governor Jack:
On behalf of Human Rights Watch, I write to urge your government's support for full protections against discrimination in the new constitution of the Cayman Islands, a British Overseas Territory. The present draft of the proposed constitution contains severely restricted protections against discrimination, at the apparent urging of civil-society groups anxious that it not prevent discrimination based on sexual orientation and gender identity in many crucial walks of life. It is unacceptable that discrimination against a specific group or identity be allowed to persist and given constitutional permission. It is equally unacceptable that animus against that group lead to a rollback of rights protections for all.
As you know, The Cayman Islands' existing constitution dates from 1972 and has been the subject of a debate over revision for eight years. A referendum on the third draft of a new constitution will take place on May 20, 2009. It is critical that language restoring full protections for equality and against discrimination be submitted to the voters, rather than the present restrictive text.
The present draft of section 16 of the Bill of Rights does not recognize any free-standing right of equal treatment. As a result, it offers no protection against discrimination by the government in relation to rights not set out in the Bill of Rights. Discrimination in social and economic areas such as health care, provision of services, housing, employment and many others will be left out.
The new proposal also limits the scope of protection to discrimination by the the government. Horizontal discrimination by non-state actors is not barred.
Human Rights Watch is aware of the fact that the original section 16 of the draft Bill of Rights stated that the Cayman Islands' Government could not discriminate against anyone at any time and that the right to equality applied in all areas of daily life. This already limited approach (no protection against horizontal discrimination between people or groups of people) was abandoned in its final draft.
Unfortunately, the revised and even more limited version of the draft constitution was approved by the Foreign and Commonwealth Office on behalf of the British government. Reports in the press indicate that officials in the FCO have described the proposed constitution as ‘less than ideal.'
Human Rights Watch is deeply concerned by this proposal and its limited approach.
Human Rights Watch brings to your attention that the 2007 constitution of another British Overseas Territory, the British Virgin Islands-approved by the FCO--contains a free-standing protection against discrimination in all areas of life. . There can be no rationale for offering different treatment and lesser protection to the population of the Cayman Islands.
The member governments of the Organization of American States (OAS) have expressed their concern about acts of violence and related human rights violations committed against individuals because of their sexual orientation or gender identity. In 2008, OAS member states unanimously adopted resolution AG/Res 2435 (XXXVIII-O/08) on "Human Rights, sexual orientation and gender identity," condemning such abuses
The OAS resolution exemplifies how governments around the Caribbean regard discrimination on the grounds of sexual orientation and gender identity as something they should actively oppose.
As you know, the United Kingdom is a party to the International Covenant on Civil and Political Rights (ICCPR) and to the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). The treaties have been extended to the Cayman Islands. The ICCPR affirms the right to equal treatment (article 2) and the right to equal protection before the law without any discrimination (article 26). The Human Rights Committee affirmed in its decision in Toonen vs Australia (1994) that the ground ‘sexual orientation' is covered by the protection against discrimination, as described in articles 2 and 26.
Article 2 of the CEDAW obliges State parties to pursue by all appropriate means and without delay a policy of eliminating discrimination against women, and to this end embody the principle of the equality of men and women in their national constitutions.
The proposed section 16 of the new constitution violates the fundamental rights of equality and non-discrimination in those areas which are not reflected in the Bill of Rights, and it limits its protection only to acts of discrimination by the government.
The United Kingdom has also extended the European Convention on Human Rights, and therefore the jurisprudence of the European Court of Human Rights, to the Cayman Islands. The European Court of Human Rights has established a consistent jurisprudence in support of the elimination of discrimination based on sexual orientation and gender identity.
On July 2, 2008, the 1031st meeting of the Committee of Ministers of the Council of Europe issued a press release reaffirming the Council's strong attachment to the principle of the equal rights and dignity of all human beings, including lesbian, gay, bisexual and transgender persons. The press release also states that "the Council of Europe's standards on tolerance and non-discrimination apply to all European societies and that discrimination on grounds of sexual orientation or gender identity is not compatible with these standards." The Parliamentary Assembly of the Council of Europe has specifically called upon member states ‘to include sexual orientation among the prohibited grounds for discrimination in their national legislation" (Recommendation 1474, September 24, 2000).
We urge you and your government to support the introduction of a new section 16 in the Cayman Islands constitution that will include a free-standing right not to be discriminated against in all aspects of life. This right should apply to all people in the Cayman Islands on a broad range of grounds, including sexual orientation and gender identity. This free- standing right should apply against discrimination originating both from acts by the government and by private parties in the Cayman Islands.
We thank you for your attention to this issue and look forward to your reply.
Sincerely,
Boris O. Dittrich,
Advocacy Director
Lesbian, Gay, Bisexual and Transgender Rights Program
Human Rights Watch
