The grounds for discrimination would be valid if marriage was allowed between same sex couple.
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Introduction
A few weeks ago, we learned of a same sex couple who got married in Florida and wanted spousal resident permit in the Turks and Caicos Islands. The matter was heard before the Supreme Court and the judge ruled that it is discrimination not to give the same rights to a homosexual couple as it is given to a heterosexual couple. Ironically, the judge acknowledges that a marriage between a same sex couple is not lawful in Turks and Caicos even if they got married in a jurisdiction outside of Turks and Caicos.
If the judge rules that the marriage is not lawful in Turks and Caicos, then how can he grant spousal rights. How does one become a spouse? In the Turks and Caicos, a spouse is a spouse through the marriage between a man and a woman.
The rights of individuals and respect for the law of the country
Let me say this, adults have the right and the freedom to choose whether they want to be in a relationship with the opposite sex or the same sex. The constitution does provides the rights and freedom of individuals which states “Whereas every person in the Islands is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, without distinction of any kind, such as race, national or social origin, political or other opinion, colour, religion, language, creed, association with a national minority, property, sex, sexual orientation, birth or other status.”
However, despite the rights of individuals, they must respect and honour the laws of the country. Our law is clear as night and day and the judge knows that and people that want to live in this country must know the law and respect the desires of the local people.
The United States and many other countries have changed their laws to accommodate same sex marriages but, in the Turks, and Caicos we have not done so, and I don’t think we will change our law unless it isforced upon us by the British and other International Agencies. Therefore, spousal rights for same sex couple do not apply in the Turks and Caicos.
A God-fearing people.
At the very beginning of our constitution, it states that “The people of the Turks and Caicos Islands as a God-fearing people with convictions based on sound Christian culture, values and principles, tolerant of other religions.” This is clearly something that the judge ignored. Our Constitution is based on our sound Christian culture which recognizes marriage between a man and a woman.
Protection of right to marry and found a family.
In section 10, subsection 1 of our constitution, it states “Every unmarried man and woman of marriageable age (as determined by or under any law) has the right to marry a person of the opposite sex and found a family.”
In section 10, subsection 3 of our constitution, it states “Nothing in any law or done under its authority shall be held to contravene subsection (1) to the extent that it is reasonably justifiable in a democratic society—
(a)in the interests of public order, public morality or public health;
(b)for regulating, in the public interest, the procedures and modalities of marriage; or
(c)for protecting the rights and freedoms of other persons.”
You see it says that nothing shall contravene subsection 1 and even the judge recognized that.
In section 10, subsection 4, it refers to spouse which states “Spouses shall be entitled to equal rights and shall be subject to equal responsibilities as between themselves.”
Obviously, spouses were meant to be between a man and a woman and so there should be no grounds for discrimination between a same sex couple because again marriage in our constitution is defined between a man and woman. The judge’s ruling is wrong.
Protection from discrimination
The judge is using section 16 of the constitution to state that there is discrimination based on sexual orientation and therefore the same sex couple should be entitled to spousal rights.
Section 16 subsection 1 states that “Subject to subsections (4), (5) and (8), no law shall make any provision which is discriminatory either of itself or in its effect.”
Section 16 subsection 3 states “In this section, “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions such as by race, national or social origin, political or other opinion, colour, religion, language, creed, association with a national minority, property, sex, sexual orientation, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”
Despite what the judge stated, our Immigration Department did not discriminate against the couple because of their sexual orientation. The Immigration Department denied them spousal rights because marriage is between a man and a woman. That is not discrimination. That is our law.
Protection for private and family life and for privacy of home and other property
In the judge’s ruling, he also referred to a breach of section 9 of the constitution. Section 9 of our constitution states that “Every person has the right to respect his or her private and family life, his or her home and his or her correspondence, and except with his or her own consent.
I absolutely agree that everyone has a right to respect his and privacy and family. However, in this same sex case, there has been no breach because in section 10 of our constitution, a family is founded between a man and a woman.
Conclusion
In my opinion, the grounds for discrimination would be valid if marriage was allowed between same sex couple in the Turks and Caicos and then one of the couples was denied spousal rights. However, in the Turks and Caicos, marriage is between a man and woman and so there is no spousal rights or discrimination if there is a marriage between the same sex.