A Swift and Simple Solution

Most Bermudians are grateful for the fact that we live in a pluralist, democratic society.

We elect successive governments with the support of the majority of the people. We hold those governments to account every five years. We boast a whole chapter on fundamental rights in our Constitution, ensuring protection for minority groups, and we outlaw discriminatory behaviour under the Human Rights Act.

The essence of democratic theory is that governments rule on behalf of the majority but are also responsible for protecting minority groups. However, in 2012 Bermuda, all is not as it should be because not all minority groups are afforded equal protection under the law. For example, at present, an employer may not refuse to hire someone because he or she is black. A restaurant cannot ban customers because they are Muslim. A public authority is not allowed to enforce a higher tax on supporters of an opposition party.

Members of the lesbian, gay, bisexual and transgender (LGBT) community do not enjoy such protection. In 2012, there is no safeguard under Bermuda law for individuals who are discriminated against on the basis of their sexual orientation. None. It’s also important to note that while the LGBT community bears the major burden of this gap in the law, we all have a sexual orientation.

This is not just about gay rights; it’s about human rights.

Since it is the Human Rights Act that provides protection for so many in our community, Centre for Justice is calling for an amendment to the Act to prohibit discrimination on the basis of sexual orientation. Efforts toward such an amendment demonstrate Bermuda’s long and tortured struggle with the topic of sexual orientation.

The Government first proposed making the amendment in 2004. However, the issue then went quietly on to the back burner until 2006 when former MP Renee Webb sponsored a private member’s bill covering sexual orientation. Shockingly, her bill wasn’t even afforded the opportunity for debate, much less a vote.

The Government then announced plans to review Bermuda’s human rights laws in 2007. The Department of Human Affairs engaged in a consultative process which covered, among other subjects, sexual orientation. These consultations culminated in the Hucker/Hunt report urging Government to modernise the Human Rights Act by adding sexual orientation to the prohibited grounds of discrimination.

Everything went quiet on the topic after that — until 2011 when, to the surprise of many in the community, Government stated in its November Throne Speech that it would “assess whether it is feasible to introduce an Equality Act”. This past July, the House of Assembly engaged in a take-note debate on the idea of an Equality Act, and most legislators expressed their support for expanding protection to include sexual orientation. However, there is still no legislative proposal on the parliamentary agenda.

Centre for Justice initially expressed concern about the Equality Act concept; there are no proposals beyond a vague commitment to meet ‘international best practices’ but in a ‘Bermudian context’. If it is the Government’s intention to look to the British Equality Act 2010, then it is worth noting that, according to the opinion of an English Queen’s Counsel instructed by Centre for Justice:

The [UK’s Equality Act] does confer greater rights to individuals to protection against discrimination on the grounds of sexual orientation than the [Human Rights Act] would if it were amended to include [sexual orientation].

This certainly sounds good. However, the lengthy process required to generate new legislation means that it could be years before any such Equality Act came into force. Much of the consultative process preceding the Hucker/Hunt report will be unnecessarily replicated and/or disregarded. The British Equality Act is 244 pages long and so it will undoubtedly take some time for politicians and government lawyers to draft their proposals.

The result, we fear, will in fact set the equal rights agenda back several years. But the community cannot wait any longer, and we shouldn’t have to: we have had commitments, we have had consultations, we have had reports. Now it’s time for action.

It’s admirable that Government wishes to introduce a robust Equality Act, but in the meantime, we need to address the situation, with swift, simple, concrete steps. Let’s amend the Human Rights Act immediately to embrace everyone under its protection. A petition calling for the amendment is open for signature by the public on Centre for Justice’s website.

The Centre for Justice is an Atlantic grantee through a re-grant from The Centre on Philanthropy.