Repost: Affirming the (Constitutional) Belonging of Sexual Minorities in Saint Lucia: The ECSC Propels a Commonwealth Caribbean Renaissance

by —Amanda Janell DeAmor Quest, Commonwealth Caribbean Lawyer, LLB (Hons), LEC

On July 29, 2025, the Eastern Caribbean Supreme Court (“the ECSC”)[1] delivered its judgment in the landmark decision of Randall Theodule & Ors v The Attorney General of Saint Lucia [2025] ECSC J0729-1 (“the ECSC decision”), where it declared sections 132 and 133 of Saint Lucia’s Criminal Code, Cap. 3.01 of the Revised Edition of the Laws of Saint Lucia (“sections 132 and 133 of the Criminal Code”) unconstitutional. Crucially, it insisted that by criminalising consensual sexual activity between adults of the same sex and anal sex between men, even in private, sections 132 and 133 of the Criminal Code contravened various fundamental rights guaranteed by the Constitution of Saint Lucia (“the Constitution”). Beyond its formal vindication of their constitutional rights, the ECSC decision affirms the (constitutional) belonging of sexual minorities in Saint Lucia and propels a Commonwealth Caribbean renaissance on sexual minority rights.

The ECSC decision

The ECSC began by addressing certain preliminary objections raised by the Defendant. In this respect, it confirmed that section 1 of the Constitution – an “opening section” that enumerates, among others, the right to the protection of the law – conferred enforceable rights and was not just a “preamble”. In so concluding, the ECSC relied upon the holding of the Caribbean Court of Justice (“the CCJ”) in Nervais v The Queen and Severin v The Queen [2018] CCJ 19 (AJ) (“Nervais”), where the CCJ insisted that section 11 of the Barbados Constitution, “which substantially mirrors section 1 of the Saint Lucia Constitution”, was separately enforceable (paragraphs 94-96). The ECSC also concluded that the Claimants possessed the requisite locus standi to “challenge laws which criminalise homosexual conduct”, and did not have “to await prosecution…to experience a violation” (paragraph 109).

The ECSC thereafter considered, in extenso, whether sections 132 and 133 of the Criminal Code qualified as “existing laws for the purposes of section 2 of the Constitution Order” so as to be immunised from constitutional scrutiny (paragraph 140). Given Saint Lucia’s recent accession to the appellate jurisdiction of the CCJ, the ECSC was bound to adopt the CCJ’s unique hermeneutical approach in McEwan and Others v The AG of Guyana [2018] CCJ 30 (AJ) (“McEwan”). Accordingly, after examining their legislative history, the ECSC concluded that sections 132 and 133 of the Criminal Code were not “existing laws” for the purposes of section 2 of the Constitution Order. With regard to section 132, the ECSC emphasised that it “was clearly a new enactment which created an offence not previously known to the criminal law”, and was therefore not inoculated from constitutional scrutiny (paragraph 149). As for section 133, the ECSC clarified that it “in large measure criminalised buggery between consenting homosexual adult males while decriminalising it in the case of  consenting heterosexual couples”, and so was “not impervious to constitutional review” (paragraph 166).

Turning to the claims of substantive rights infringements, the ECSC conducted a thoughtful assessment of arguments advanced by both sides, and concluded as follows:

1. even where unenforced, sections 132 and 133 of the Criminal Code “abridged and emasculated” the Claimants’ fundamental right to liberty – which included sexual autonomy – since homosexual individuals were forced to engage in “private sexual expression…according to statutory dictates” rather than their orientation (paragraph 114).
2. the Claimants’ constitutional rights to freedom of expression and privacy were infringed by sections 132 and 133 of the Criminal Code since, as established by the South African Constitutional Court in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17 (“National Coalition for Gay and Lesbian Equality”), “sexual conduct not only constitutes a form of expression, but one directly linked to the right to privacy” (paragraphs 118 and 172).
3. “by expressly and impliedly excluding heterosexual couples from…[their] ambit”, sections 132 and 133 of the Criminal Code “discriminated against homosexuals and therefore did not cohere with “all modern human rights instruments, which include sex or gender among the prohibited grounds of discrimination” (paragraph 172).

Having established violations of the Claimants’ constitutional rights, the ECSC considered whether there was any constitutionally sanctioned justification for the infringements. It answered this question in the negative (paragraph 173). Amidst virulent socio-cultural disapprobation of homosexuality, the ECSC emphasised that “the criminalisation of homosexual conduct may also have the tendency to deprive homosexual individuals of their right to the protection of the law.” It further identified “public humiliation, vilification and even physical attacks” experienced by homosexuals as a “concomitant effect” of the stigmatisation that criminalising homosexual conduct engendered. Those occurrences, it reasoned, were incompatible with the “dignity of certain categories of citizens” and “evolving standards of decency in a free and democratic society” (paragraph 188).

In conclusion, the ECSC held that sections 132 and 133 of the Criminal Code were unconstitutional, having unjustifiably infringed the Claimants’ constitutional rights to, inter alia, the protection of the law, liberty, freedom of expression, and privacy. It therefore ordered their modification to exclude acts of “gross indecency” between consenting adults of the same sex and “buggery” between “consenting persons aged 16 or older in private” (paragraph 205).

Affirming the (constitutional) belonging of sexual minorities in Saint Lucia

The “need to belong” is inherent in human nature. According to social psychologists, Dr. Roy Baumeister and Dr. Mark Leary, this need is “deeply rooted and powerful”. Moreover, as a “fundamental human motivation”, the need to belong is “found to some degree in all humans in all cultures”. The satisfaction of the need to belong is so essential to actualising human contentment that, as noted social psychologist, Dr. Geoffrey Cohen puts it, “threats to belonging”  can feel “biologically…similar to the experience of pain”. Unfortunately, however, as Dr. Cohen explains, “[a]lthough most of us know what it feels like to be excluded or question our belonging…we don’t do the greatest job of recognizing that feeling when it happens to others”. Dr. Cohen’s observation is especially helpful in contextualising societal apathy towards sexual minorities and other “underrepresented or stereotyped groups”, for whom “threats to belonging” reflect a “continual reality in many…[social] institutions”. For decades, sexual minorities in Saint Lucia have experienced what Dr. Cohen describes as a “crisis of belonging”, largely occasioned by interminable discrimination, social ostracism, exclusion and targeted violence. Quite apart from the obvious physical health consequences, those threats to belonging can produce “a host of negative long-term psychological consequences”. Moreover, discriminatory criminal laws that infringe their fundamental rights, designate them as outlaws, and instigate targeted violence exacerbate the crisis of belonging often experienced by sexual minorities in homophobic socio-cultural contexts.

Against that backdrop, the ECSC decision assumes particular significance for its decidedly counter-majoritarian stance in affirming the (constitutional) belonging of sexual minorities within Saint Lucia. Indeed, beyond any doctrinal significance, it challenges the enduring crisis of belonging experienced by sexual minorities in Saint Lucia due to their systematic exclusion from full membership and moral citizenship within the society. Despite the ECSC’s marked focus on constitutional rights-based doctrinal analysis, its references to notions of “dignity” and “evolving standards of decency in a free and democratic society” strongly implicate the importance of the Constitution’s preamble to human rights adjudication. Attorney General of Barbados v Joseph[2006] CCJ 1 (AJ) (“Joseph”) underscores the importance of judicial attention to the preamble when adjudicating human rights matters and insisted that the Constitution “as a whole has to be understood and interpreted” in light of the preamble as their words reflect, among other things, the “values…of constitutional democracies…” (paragraph 18 of the judgment of Wit J in Joseph). The CCJ has since reiterated this position, maintaining that courts must be guided by the “statements of fundamental principle” espoused by a constitution’s preamble when “adjudicating complaints of human rights infringements” (paragraph 61 of McEwan).

Within Saint Lucia’s constitutional context, some such preambular statements of fundamental principle include, most compellingly, a recognition and acceptance that “all persons have been endowed by God with inalienable rights and dignity”, and “…each person…is under obligation to observe and promote the rights, freedoms and values recognised in this constitution…” These are more than mere abstract ideals. On the contrary, they reflect a commitment– embodied in Saint Lucia’s supreme law – to the equality, human dignity, and empathy that criminalisation denies sexual minorities. Accordingly, in proclaiming statements of fundamental principle that emphasise the inherent dignity, worthiness of all constitutional subjects, the preamble of the Constitution solemnly champions the belonging of sexual minorities, as human beings endowed by God with inalienable rights and dignity.

Thus, by invalidating sections 132 and 133 of the Criminal Code, which exacerbated their crisis of belonging by perpetuating institutionalised discrimination, the ECSC decision has affirmed the (constitutional) belonging of sexual minorities in Saint Lucia with important constitutional implications. To this end, it has legitimised the statements of fundamental principles espoused by the Constitution’s preamble as well as its substantive provisions providing protection from discrimination irrespective of status. In particular, the ECSC’s references to the “dignity of…citizens” and “evolving standards of decency…in a democratic society” throughout its analysis demonstrates how preambular statements of fundamental principles can permeate and guide substantive rights adjudication, even without being explicitly invoked. Accordingly, the ECSC decision demonstrates that – consistent with the preambular vision for an inclusive Saint Lucian polity in which each person is endowed with dignity and ought to respect the rights of other persons – the Constitution must be construed as recognising and affirming the belonging of all persons, including sexual minorities.

Equally important, in rendering its decision vindicating the constitutional rights of sexual minorities, the ECSC has assigned constitutional significance to the socio-psychological concept of belonging, transforming it into a legally recognised form of membership within the Saint Lucian polity. By so doing, it has also validated the fundamental human need to belong, which is said to be “essential for human flourishing”.

As well, with its clear rejection of majoritarian conceptions of morality as a basis for criminalising conduct that is intricately connected to the expression by homosexuals of their full humanity and which does no harm to the society, the ECSC decision legitimises their claims to full moral citizenship. Its decidedly counter-majoritarian approach on the issue of sexual minority rights – as championed in National Coalition for Gay and Lesbian Equality – also positions dignity, equality, social inclusion, and belonging at the heart of Saint Lucian constitutionalism. Ultimately, while the ECSC decision cannot entirely resolve the persistent crisis of belonging experienced by sexual minorities within the Saint Lucian society, it dismantles one of the legal foundations upon which state authored exclusion has rested, and affirms their (constitutional) belonging and inherent dignity as rights-holders deserving of full moral citizenship.

The ECSC Propels a Commonwealth Caribbean Renaissance

Without question, the Commonwealth Caribbean has seen advancements in the promotion of sexual minority rights. Despite this, homosexuality and gender non-conformity remain notorious causes célèbres within Commonwealth Caribbean societies since “…homophobia permeates the region…” and is “part of the culture of the Caribbean”. Be that as it may, amidst this climate of exclusion, the ECSC decision as well as similar ones rendered in Belize, Barbados, Antigua and Barbuda, Saint Kitts and Nevis, and Dominica herald a Commonwealth Caribbean renaissance concerned with dismantling colonial-era criminal laws legitimising and perpetuating discrimination against sexual minorities. In this regard, affirmative judicial interventions are particularly meaningful in a region where colonially transplanted laws have long denied sexual minorities their dignity, rights, and sense of belonging. However, beyond its substantive doctrinal contributions – clarifying the scope of constitutional rights as well as mitigating the debilitating effect of the “existing laws” or “savings law” clause, which precludes courts from declaring colonial-era laws to be violative of constitutional rights – the ECSC decision propels this Commonwealth Caribbean renaissance by building upon the progress advanced by regional judicial renderings on sexual minority rights. The message it conveys is pellucidly clear: majoritarian conceptions of morality should not, without more, determine who belongs.

Suggested citation: Amanda Janell DeAmor Quest, Affirming the (Constitutional) Belonging of Sexual Minorities in Saint Lucia: The ECSC Propels a Commonwealth Caribbean Renaissance, Int’l J. Const. L. Blog, Dec. 5, 2025, at: http://www.iconnectblog.com/affirming-the-constitutional-belonging-of-sexual-minorities-in-saint-lucia-the-ecsc-propels-a-commonwealth-caribbean-renaissance/

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[1] The ECSC has unlimited jurisdiction to hear and determine legal matters in Anguilla, Antigua and Barbuda, Dominica, Grenada, Montserrat, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and the British Virgin Islands.

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