Procedural Posture
The plaintiffs filed a motion for constitutional relief under the Constitution of the Republic of Trinidad and Tobago requesting an order compelling the government to establish an Equal Opportunity Commission and Tribunal as mandated under the recently passed Equal Opportunity Act. The trial judge dismissed the motion on the basis that the Equal Opportunity Act was itself unconstitutional in several respects and that, given this, a claim for constitutional relief could not be sustained. The plaintiffs appealed.
Facts
The Equal Opportunity Act had been adopted with the aim of prohibiting discrimination on a range of grounds. However, a change in government occurred shortly after the Act entered into force and the new Attorney General took the view that the law was unconstitutional. The government therefore took no steps to establish the Equal Opportunity Commission and Tribunal. In response to the plaintiffs’ motion, the Attorney General contended that the government could not be compelled to establish an Equal Opportunity Commission or Tribunal because the Equal Opportunity Act was unconstitutional on several grounds, one of which was that it explicitly excluded sexual orientation from the grounds of discrimination that it prohibited.
Issue
Whether the Equal Opportunity Act was unconstitutional because, among other reasons, it explicitly excluded sexual orientation from grounds of discrimination that it prohibited.
Domestic Law
Constitution of Trinidad and Tobago, Chapter I, Sections 4 and 5.
Equal Opportunity Act 2000, Sections 3 and 7.
Comparative Law
Vriend v. Alberta, Supreme Court of Canada, 1998 (holding that omission of sexual orientation as protected ground of discrimination in IRPA violated S. 15 of the Canadian Charter).
Reasoning of the Court
The plaintiffs alleged that they had suffered discrimination on grounds prohibited under the Equal Opportunity Act. They argued that the failure of the government to take steps to constitute and appoint members to the Commission and Tribunal established under the Equal Opportunity Act deprived them of protection afforded by the law.
According to the Attorney General, the Act‘s deliberate exclusion of sexual orientation from its definition of “sex” (a prohibited ground for discrimination) supported the claim that the Act was unconstitutional. Persons alleging discrimination on grounds of sexual orientation were denied the right to equality before the law and equal protection as provided for in the Constitution.
With respect to this argument, the Court first agreed that the definition of “sex” under the Equal Opportunity Act did explicitly exclude persons claiming discrimination on the basis of sexual orientation. At the same time, however, the Act prohibited discrimination based on gender. The Court then considered the distinction between sex and gender and observed that, while “sex” was generally understood to refer to the biological differences between male and female, “gender” was a broader concept, socially and culturally construed. The term “gender” could thus be understood to include sexual orientation.
Next, the Court considered the criminalisation of homosexual acts under the domestic law of Trinidad and Tobago and distinguished between sexual orientation and sexual conduct. Whereas homosexual sexual activity was subject to criminal sanction, being a homosexual person was not a crime.
Affirming that all legislation had to be construed in conformity with the constitutional provision on protecting equality of treatment and equality before the law, it concluded that every law that created a discriminatory effect must show that the distinctions it made were reasonable and did not violate the Constitution. Sexual orientation was not a reasonable basis for distinction, because the distinction in question was subjective and often based on prejudice and stereotyping.
The Court held that the specific exclusion of sexual orientation from the prohibited grounds of discrimination effectively excluded people who claimed discrimination on the basis of sexual orientation or sexual preference from the protection granted by the Equal Opportunity Act. The exclusion thus denied a particular category of persons protection of the law and equality of treatment under the law.
The Court held that, although laws criminalising same-sex sexual conduct were in place, and taking into account the difference between sexual orientation and sexual conduct, discrimination on grounds of sexual orientation based on homosexual conduct was not justifiable. Fundamental rights arose from the inherent dignity and value of every human being and were universal, regardless of an individual’s sexual orientation. It would amount to double punishment to deny a person his or her fundamental rights and to impose the severe criminal sanctions established under the law for committing homosexual acts.
While a criminal conviction or even homosexuality could be considered relevant in certain situations (when selecting a candidate for certain jobs, for example), the general discrimination permitted by the Equal Opportunity Act was unjustified and unconstitutional.
The Court held the Equal Opportunity Act to be unconstitutional in several respects and thus void. For this reason, the appellants could not be considered as having been deprived of protection under the law and their appeal was therefore dismissed.
Postscript
In 2007 the Court of Appeal decision was overturned by the Privy Council, which ruled that the Equal Opportunity Act was not inconsistent with the Constitution of Trinidad & Tobago. However, the Privy Council did not mention the exclusion of sexual orientation from the Act but only the other alleged grounds of invalidity. It held that the other grounds of invalidity argued by the Attorney General did not render the law unconstitutional.
Kenneth Suratt and Others v. Attorney General, Court of Appeal of Trinidad and Tobago (full text of judgment, PDF)
