Jamaican TV Stations TVJ and CVM Sued for Not Airing Ad Promoting Tolerance Towards Homosexuals

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Attorney-at-law Maurice Tomlinson has filed suit in the Supreme Court against Jamaican free-to-air television stations TVJ (the 1^st Defendant) and CVM (the 2^nd Defendant), claiming breach of his constitutional rights for refusing to air a Public Service Announcement (PSA) promoting tolerance towards homosexuals. He has asked the court to make declarations stating that by refusing to air the PSA the stations breached his constitutional rights. He is also asking the court to order the stations to air the ad, and has asked for damages.  

This case, if it goes forward, will be an important test of the new Charter of Rights, and could be a significant test case for freedom of expression and the gay rights lobby.

In his court papers, Mr. Tomlinson says that homophobic laws, policies and attitudes throughout the region discourage homosexuals from seeking effective HIV prevention support and treatment.   

Against that background, the PSA, dubbed “Love and Respect PA,” is said to be part of a campaign to promote tolerance for Men who have Sex with Men (MSM) and homosexuals. The 30-second ad is described as depicting a man and his aunt, in which the man (played by Mr. Tomlinson) tells his aunt that he continues to try “to get Jamaicans to respect (his) human rights as a gay man.” The aunt tells the man that she loves him even though she does not know why he is gay.   

He says he contacted CVM in February 2012 , and TVJ in March 2012, asking for the ad to be aired, and despite communication over several months, never received a final  decision on the matter from either station. He last wrote to both stations on September 18, stating that he would take lack of response as an indication that they did not intend to air the ad. 

The sections of the Charter of Rights on which Mr. Tomlinson is relying are as follows:

s. 13 (1) (c ) which states that all persons are under a responsibility to respect and uphold the rights of others recognized in this Chapter;

s. 13 (5) which states that the Charter binds natural or juristic  persons  if,  and  to  the  extent  that,  it  is applicable, taking account of the nature of the right and the  nature of any duty imposed by the right;

s. 13 (c) which sets out the right to freedom of expression;

s. 13 (d) which sets out the right to seek, receive, distribute or disseminate information, opinions and ideas through any media.

Photo by http://www.freedigitalphotos.net

The Claimant says that under the Charter, private entities as well as government have an obligation to protect the constitutional rights of citizens. He says TVJ and CVM therefore had a duty to respect his rights to freedom of expression and to seek, receive, distribute or disseminate information, opinions and ideas. He states that the companies should have aired the ad because:

1. airing a paid advertisement with public interest content can be  described as a public function;
2. the broadcasting licences which the state granted to the companies place an obligation on them to operate in the public interest;
3. it is in the public interest that MSM are free to receive and distribute information to enhance public awareness about homosexuality and the national HIV response;
4. TVJ and CVM operate Jamaica’s major TV stations,  and therefore have “immense power over the information, opinion and ideas that are  disseminated and distributed to the public;”
5. free speech is guaranteed not only to media owners and workers but also to members of the public who wish to use the media to share their views,
6. the constitutional guarantee of freedom of speech can be enforced against private media owners since they control mass media and provide a service under a government license.

Mr. Tomlinson  says there was no justification for refusing to air the ad as the Broadcasting Commission had stated in writing that the ad did not breach any broadcasting regulations. By not airing the PSA, therefore, he says that the stations abused their “power over the dissemination and distribution of ideas and opinions via television.”

Disclosure: I work for TVJ.

That Health and Family Life Education Manual – Bad Move!

English: Symbols for heterosexuality (middle), male homosexuality (upper right), male bisexuality (lower right), female homosexuality (lower left) and female bisexuality (upper left). Česky: Symboly pro heterosexualitu (uprostřed), mužskou homosexualitu (vpravo nahoře), mužskou bisexualitu (vpravo dole), ženskou homosexualitu (vlevo dole) a ženskou bisexualitu (vlevo nahoře). (Photo credit: Wikipedia)

Somebody messed up. Big time. This is not about being liberal, tolerant or open-minded. The people who managed to get what has turned out to be a hugely controversial Health and Family Life Education manual into Jamaican schools must have known that sections of the manual would be offensive to many Jamaican parents.

The manual, funded by UNICEF, is over 400 pages long, for Grades 7-9, and covers four themes, eating and fitness, managing the environment, self and interpersonal relationships and the one that has come in for criticism, sexuality and sexual health. The vast majority of the programme is uncontroversial, but some sections, dealing with sexuality, have raised concerns.

TVJ broke the story about some of the contents of the manual last week, which resulted in an immediate public backlash.

Within 24 hours of the story first airing, Education Minister Ronald Thwaites said that:

“I consider sections of the manual inappropriate for any age and certainly for the Grade 7 and 8 students for which it was designed. I have instructed that the material be withdrawn from all schools and re-written then redistributed…”

It doesn’t matter if you believe that the law making buggery a criminal offence should be repealed, or if you think Jamaican society is homophobic and more tolerance is needed (or not), or if you are a gay rights activist who wants to see same-sex marriage legalized at some point. That is really not what this is about.

It’s about trying to sneak a controversial curriculum into schools without the knowledge of most of the parents of the children in those schools. It’s about trying to force change in a way that is certain to bring a social backlash. It’s about being respectful enough of other people’s views to understand that whatever you think children ought to be taught, parents have a right to have a say in that decision. This is not just a desirable principle, it’s a legal requirement. Section 44 of our Education Act says:

In the exercise and performance of the functions assigned to him by this Act, the Minister shall have regard to the general principle that, so far as is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure, the wishes of parents are to be considered in the education of students.

I used the words “sneak a controversial curriculum into schools” quite deliberately. I don’t care who in the Education Ministry approved that manual, how much donor money was spent or that focus groups were involved. Anybody, and I mean any honest person, would have known that most Jamaican parents would have objected to sections of that manual. If you were serious about wanting buy-in, the controversial sections would have been published, widely disseminated and discussed in the media to truly gauge public and parental reaction. Any bets as to what the outcome would have been?

One of the most publicized aspects of the manual is the activity aimed at Grades 7 and 8 students with the stated objective of increasing ‘awareness of an individual’s personal risk of HIV infection.’ The questions include:

-       Have you ever had sexual intercourse?

-       Have you ever had sex without a condom?

-       Have you ever had casual sexual partners?

-       Have you ever had anal sex without a condom?

-       Do you know your HIV status?

-       Do you know the HIV status of all your partners?

Someone has just emailed me to point out that the activity is for the students to assess themselves, and that the answers are not meant to be shared with the teachers. So what happens when a teacher is inadvertently made privy to one of the answers? What if a child decides to share his or her experiences thinking the teacher can be trusted? Not all can. Also, are ordinary classroom teachers really equipped to handle the possible ramifications of raising some of these issues?

We hear a lot about children having sex at an early age. The 2008 Jamaica Reproductive Health Survey, conducted by the National Family Planning Board, indicates that 66% of young women and 75% of young men say they have had sex. These figures are actually a bit lower than those in the 2002 survey when 69% of young women and 82 % of young men reported having had sex. (Respondents were men aged 15-24, and women aged 15-49.)

In addition, the 2008 report stated that the mean age for first sexual encounter was 16.1 for young women, and 14.5  for young men, compared to 15.8 and 13.5, respectively, in 2002.

Twelve per cent of young women and 35% of young men reported having sex for the first time before they were 15.

Clearly this is cause for concern and must be addressed. A lot of young people are having sex. And inevitably, some of that sex is risky.

English: Adults and children estimated to be living with HIV in 2007. Source: WHO & UNAIDS (here) Ελληνικά: Ενήλικες και παιδιά που εκτιμάται ότι ζουν με τον ιό HIV το 2007. Πηγή: Παγκόσμιος Οργανισμός Υγείας & UNAIDS (εδώ) (Photo credit: Wikipedia)

Jamaica is one of seven out of ten Caribbean countries named by UNAIDS Caribbean on its website as having a prevalence rate for HIV of over 1%. The figure for Jamaica is 1.7%. UNAIDS says:

“When the HIV rate in the general population is higher than one percent this is defined as a general epidemic. That means that while communities with higher risk such as men who have sex with men and sex workers may contribute disproportionately to the spread of HIV, heterosexual transmission is also sufficient to sustain an epidemic independent of those groups.”

So most of us understand that young people must be given information about the dangers of early sexual activity and how to protect themselves when they start having sex. Advocates of  the manual apparently think we don’t. That’s not it. But how far should schools go?

Look at the flip side. Eight out of ten of the girls and two out of every three boys  would NOT have had sex in first and second form, which is the  age group targeted by these activities in the family life manual. Does that really suggest that we need to have discussions about multiple sexual partners and anal sex with the class as a whole?

Is there a way to initiate introductory discussions about sex and risky sexual behavior without going into the kind of detail many parents have said they find offensive? Could we start the general discussions in class, but with a pointer to internet sites where sexually active students who have concerns can discreetly go to access the more detailed information they might need? Or find a way to involve parents in the process, by asking them to discuss sensitive information with their children?  I know, I know, many parents are themselves ignorant, or uncomfortable discussing reproductive health issues. So how do we provide the information our young people clearly need without introducing topics that have been deemed unnecessary and inappropriate for others of the same age? After all, the statistics clearly show that not all teenagers are having sex.  It’s a discussion we need to continue, until we find a generally acceptable  solution.

Another offensive aspect of the manual for many people though, was its emphasis on sexual orientation which the manual rightly identifies as a “controversial topic.” I guess this is where I  say “duh!”

English: Symbols for heterosexuality (middle), male homosexuality (upper right), male bisexuality (lower right), female homosexuality (lower left) and female bisexuality (upper left). Česky: Symboly pro heterosexualitu (uprostřed), mužskou homosexualitu (vpravo nahoře), mužskou bisexualitu (vpravo dole), ženskou homosexualitu (vlevo dole) a ženskou bisexualitu (vlevo nahoře). (Photo credit: Wikipedia)

Again, one can only wonder at the person who really thought it would be appropriate to include in an activities section for Grade Six students, a suggestion that “students volunteer for a panel discussion on the rights of homosexuals. The discussion focuses on the need to show tolerance and respect to all persons.”

The guided imagery activity for Grade 8, asking students to imagine a world where it was normal to be gay but where you, the students, were straight, was also problematic for a number of reasons.

For one thing, many people saw it as “conditioning” children to accept the gay lifestyle. In my view, the aim of the activity was clear, to try to have students walk in the shoes of a gay student and understand his/her feelings and problems a little more. But adapted as it was from a Toolkit by a group called Advocates for Youth to “create safe space for GLBTQ Youth,” this was an inherently wrong choice. NB – GLBTQ means Gay, Lesbian, Bisexual Transgender and Questioning (I had to look up the Q!)

Advocates for Youth is a US-based organization which seems to carry out considerable work in the field of  reproductive health education and advocacy for young people and describes itself, among other things, as an “innovator of new programs to redress homophobia and transphobia in communities of color.”  That should have been a little red flag for people who wanted to borrow material for our purposes, shouldn’t it?

Another recent survey gives us a picture of current Jamaican attitudes to different sexual lifestyles.

The 2012 National Survey of Attitudes and Perceptions of Jamaicans Towards Same-Sex Relationships  was recently released by the Jamaica Forum for Lesbians, All-Sexuals and Gays (J-FLAG), and was  funded by AIDS-Free World.

The survey states that about 50% of respondents become aware of homosexuality by 14 years old, 88% felt male homosexuality was immoral, 83.7% felt female homosexuality was immoral, and 83.5% felt bisexuality was immoral.

When questioned, 76.7 percent of respondents did not want to see the buggery law amended, and 65% did not want the constitution amended to include specific reference to LGBT rights. However, 21.3% said they would support an amendment that would allow consensual sex between adults in private.

One reader commented that there was “extensive island-wide” consultation with stakeholders. If that is so, then the persons designing the field testing needs to revamp his or her methodology entirely, because it clearly was useless in gauging true public opinion on the most controversial issues.

Should tolerance be taught? I would say yes, absolutely, but there must be serious questions asked about the methodology which the Education Ministry chose to use here. The attempt by the people behind this manual to tackle this issue in the schools in the way we saw here was not just inadvisable, it was disrespectful as well.

People who are so quick to speak about the need to respect others, need to understand that respect works both ways. Parents’ wishes, much as you may disagree with them, must be respected as well. And if you have trouble accepting that, refer again to section 44 of the Education Act.

Portia, that Time 100 List and Gay Rights

Prime Minister Portia Simpson Miller
Photo - Office of the Prime Minister

Jamaica House and the People’s National Party (PNP) have been making much of Prime Minister Portia Simpson Miller’s inclusion on Time Magazine’s List of the 100 Most Influential People in the World. The list comprises, Time says, “the people who inspire us, entertain us, challenge us and change our world… the breakouts, pioneers, moguls, leaders and icons.”
It sounds really great for the Prime Minister of a small country like Jamaica to be included on the list. She is one of 38 women listed, more, the BBC reports, than ever named before.  And after all, she’s not in the rogue section populated by people like North Korean leader Kim Jong Un or Syrian president Bashar al-Assad!

But why is she there?

The blurb about her is written by US Congresswoman Yvette Clarke, daughter of former NY city councilwoman Una Clarke, herself a Jamaican, and a longtime friend of Jamaica.

Yvette clarke (Photo credit: Wikipedia)

Clarke says that Portia is :

“the embodiment of perseverance and strength.”

I have no quarrel with that description. It says a lot for her that she emerged from the recent political campaign with her head held high after one of the most vicious series of sustained and personal attacks I have seen on a political candidate.

Clarke goes on:

“In 2006 she made history, becoming the first woman to be elected Prime Minister of Jamaica. She was re-elected in December 2011.”

That is a fact. No room for quibbling there. She goes on:

“While she has worked for many years as a public servant representing all Jamaicans, there is a great sense that her leadership will expand far beyond her island nation.”

I’m not going to argue with that statement. Whether it’s true or not will be seen soon enough.

But then Clarke goes on to say:

“In addition to her call this year to break with the British monarchy and make the island a republic,  Portia is promoting full civil rights for gays and lesbians, a courageous move in a country with a violent history of homophobia.”

WHOA! STOP. Cue screeching brakes. What? What the hell? When did we in Jamaica and the media miss such a ground-breaking and phenomenal development?

Oh, come on. The Prime Minister is doing  nothing of the kind.

This all started at the leadership political debate on December 20, 2011 in response to a question I asked, which was originally directed to then Prime Minister Andrew Holness. The question was related to former Prime Minister Bruce Golding’s  famous statement in a 2008 BBC interview that gays were not welcome in his cabinet.

At the debate I asked this:

Q: Mr. Holness, Jamaica has an international reputation for homophobia. What do you think of former Prime Minister Golding’s statement that homosexuals were not welcome in his Cabinet, and do you share that sentiment?

Mrs. Simpson Miller, in her rebuttal, said this:

“Our administration believes in protecting the human rights of all Jamaicans. No one should be discriminated against because of their sexual orientation. Government should provide the protection. And I think that we should have a look at the buggery law and that Members of Parliament should be given the opportunity to vote with their conscience on consultation with their constituents but for me, I do not support the position of the former Prime Minister because people should be appointed to positions based on their ability to manage.” (My emphasis.)

Now, this was a courageous stance, and one for which Simpson Miller took a lot of flak. But do you remember how fast the PNP rushed to “clarify” her statement when the anti-gay lobby began denouncing her for allegedly promising to repeal the buggery law? (And clearly she had done nothing of the sort.)

But the PNP made sure to emphasise the limits on Simpson Miller’s statement. The party said in a statement on December 27, 2011:

“The People’s National Party (PNP) has labeled as deliberate mischief making by the Jamaica Labour Party (JLP), suggestions that it supports a repealing of the Buggery Act. The PNP says that is not its position.

“PNP Campaign Director, Dr. Peter Phillips said … that the PNP has no position to repeal the Buggery Act, and that the issue arose out of a question posed to party leader Portia Simpson Miller during the recent national debate with prime minister and JLP leader, Andrew Holness.

“…there is no position taken by us of a repeal…” Dr. Phillips said. He adds that the Party Leader has proposed a review of the Act, and not a repeal of it.”

All this is true, but you must admit that Simpson Miller’s position falls short of “promoting full civil rights for gays and lesbians” as is being claimed.

Dare I suggest we remind ourselves of the recently enacted Charter of Rights. The Jamaica Forum for Lesbian, Allsexuals and Gays (JFLAG) was pushing for a clause prohibiting discrimination on the grounds of sexual orientation. Ha! They would have had a better chance promoting non-discrimination on the basis of being vegetarian or not liking track and field. Point is, I didn’t see any politician, including the Prime Minister, in Parliament championing that cause.

Instead we now have a constitutional amendment in the Charter of Rights in section  13 (3) (i) which provides for:

The right to freedom from discrimination on the ground of being male or female; race, place of origin, social class, colour, religion or political opinions.

The PM has been in the spotlight a lot recently, whether hugging Prince Harry or being called upon to comment on the fake flag fiasco in Montego Bay. That spotlight is likely to shine throughout her tenure as Jamaican Prime Minister. Part of that attraction is that she has made history and continues to do so. Has Simpson Miller overcome a lot to arrive at the pinnacle of politics in Jamaica? Clearly she has. Her memoirs will make fascinating reading.

Did she take a courageous stance on the buggery law? Yes she did.

But is she “promoting full civil rights for gays and lesbians”? No, she isn’t.

Let’s not oversell the stance she did take, or re-write history. Perhaps the PNP should once again “clarify” the PM’s position? But there’s no political benefit to be gained from that now, is there?

What’s your take?

Related articles

• Remember your promise, Madam Prime Minister! (newsandviewsbydjmillerja.wordpress.com)
• Jamaica gets ‘nudge’ toward repeal of anti-LGBT laws (76crimes.com)