Dy­lan Ker­ri­g­an

One of the key tasks of an­thro­pol­o­gy is to make vis­i­ble how pow­er mech­a­nisms like state prac­tices, such as leg­is­la­tion and lan­guage, fix and con­struct what pop­u­la­tions come to see and un­der­stand as "nat­ur­al."This sense of nat­u­ral­ness is of­ten tied to a na­tion's his­to­ry and cul­ture. And a state of­ten us­es crim­i­nal law to po­lice and pun­ish de­vi­a­tions from the dom­i­nant ideas of moral­i­ty and re­li­gion that ex­ist in any so­ci­ety.

In the case of sex­u­al­i­ty, crim­i­nal law in T&T has been and is cur­rent­ly de­ployed to de­ter­mine what is "nor­mal" sex­u­al be­hav­iour–het­ero­sex­u­al­i­ty–and what is "de­viant" sex­u­al be­hav­iour–ho­mo­sex­u­al­i­ty, or more cor­rect­ly same-sex de­sire.Far more puni­tive­ly than the cul­tur­al codes of moral­i­ty and re­li­gion, the law la­bels, sterotypes and po­lices par­tic­u­lar sex­u­al iden­ti­ties as un­nat­ur­al.This con­struc­tion of our so­cial re­al­i­ty by the State makes in­vis­i­ble cer­tain facts about the his­to­ry of sex and sex­u­al­i­ty.

For ex­am­ple, sex­u­al­i­ty stud­ies has shown the ac­tu­al cat­e­gories of "het­ero­sex­u­al­i­ty" and "ho­mo­sex­u­al­i­ty" do not ex­ist in na­ture or in an­cient sources, and were in­vent­ed by west­ern so­ci­ety in the mid-19th cen­tu­ry.The sci­en­tif­ic re­al­i­ty is that all con­sent­ing hu­man be­ings de­sire and can en­gage in a wide va­ri­ety of sex­u­al be­hav­iour.Put most blunt­ly, we are all bod­ies with phys­i­cal func­tions and de­sires.

It is cul­ture and the law, among oth­er things, that po­lice our un­der­stand­ings of which of these func­tions and de­sires are some­how more "nat­ur­al" and ac­cept­able than oth­ers.In a 1994 ar­ti­cle called Not Just (Any) Body Can Be A Cit­i­zen, Jacqui Alexan­der point­ed out that T&T and some oth­er na­tion states use the law to make sex­u­al in­scrip­tions on all our bod­ies.

A na­tion­al through birth, she was not an equal cit­i­zen be­cause, since she iden­ti­fied as a les­bian, the jus­tice sys­tem la­belled her a crim­i­nal, an out­law in her own coun­try.Such out­law­ing is achieved in many ways, the most bla­tant is through leg­isla­tive ges­tures such as crim­i­nal­is­ing forms of non-pro­cre­ative sex.In this way, the State can po­lice peo­ple's in­ti­mate be­hav­iours and crim­i­nalise con­sen­su­al acts be­tween adults in pri­vate.

This rais­es the ques­tion: should the State even be al­lowed in­to the bed­rooms of con­sent­ing adults?Sec­tion 13 of the Sex­u­al Of­fences Act, writ­ten in 1986 and amend­ed in 1994 and 2000, is an ob­vi­ous ex­am­ple of this state over-reach.It out­laws, crim­i­nalis­es and makes pun­ish­able by im­pris­on­ment of 25 years, pri­vate sex­u­al acts be­tween con­sent­ing male adults. It al­so crim­i­nalis­es anal sex be­tween con­sent­ing male and fe­male adults.

An­oth­er more sub­tle law is Ar­ti­cle 8 (18/1) of the Im­mi­gra­tion Act, which states "ho­mo­sex­u­al" men and women are not al­lowed to en­ter the coun­try, as if they aren't equal­ly men and women.Suc­ces­sive gov­ern­ments have al­so re­in­forced these laws by pass­ing strong ver­bal crit­i­cisms of any or­gan­i­sa­tion or per­son who sup­ports the re­peal of laws crim­i­nal­is­ing con­sen­su­al gay re­la­tions.For ex­am­ple, in 2000 the then At­tor­ney Gen­er­al sug­gest­ed that the ex­is­tence of such a law was not a hu­man rights is­sue.

Sim­ply put, crim­i­nal­i­sa­tion is a tech­nique of pow­er owned by the State.In T&T and else­where, it is used to imag­ine a na­tion and re­con­struct a self, so that cit­i­zens are specif­i­cal­ly het­ero­sex­u­al, or at least view het­ero­sex­u­al­i­ty as "nat­ur­al."An­oth­er jus­tice sys­tem tech­nique con­nect­ed to sex­u­al­i­ty and used by the State is dis­crim­i­na­to­ry polic­ing, in­volv­ing the se­lec­tive en­force­ment of cer­tain laws to tar­get mem­bers of the gay com­mu­ni­ty.

Con­nect­ed to this dis­crim­i­na­tion is the way po­lice of­fi­cers rou­tine­ly fail to take se­ri­ous­ly, to make re­ports on and to in­ves­ti­gate crimes re­port­ed by the LGBT com­mu­ni­ty, in­clud­ing al­le­ga­tions of ho­mo­pho­bic at­tacks.An­oth­er dis­crim­i­na­to­ry prac­tice is the ex­emp­tion claus­es of leg­is­la­tion like the one con­tained in the 1999 Equal Op­por­tu­ni­ties Bill. De­signed to legal­ly en­force the right to non-dis­crim­i­na­tion, the bill con­tains a clause de­signed to ex­clude non-het­ero­sex­u­al in­di­vid­u­als from its pro­tec­tions.

For ex­am­ple, ac­cord­ing to the act, kiss­ing or hold­ing hands in pub­lic be­tween mem­bers of the same sex can be deemed of­fen­sive be­hav­iour to­ward oth­er groups and peo­ple in so­ci­ety.We don't in­di­vid­u­al­ly crim­i­nalise sex­u­al­i­ty; the State does. And the State is al­ways a col­lec­tion of ac­tors with par­tic­u­lar his­tor­i­cal in­ter­ests.

We think we make up our own minds about who is al­lowed equal cit­i­zen­ship in so­ci­ety but law and moral­i­ty dis­ci­pline us too, mean­ing that the State nat­u­ralis­es in­equal­i­ty be­tween cit­i­zens, en­sur­ing some hu­mans have more rights and re­spect than oth­ers.

�2Dr Dy­lan Ker­ri­g­an is an an­thro­pol­o­gist at UWI, St Au­gus­tine