CIVICUS speaks with Tim Prudhoe, a lawyer with Stanbrook Prudhoe, about a legal challenge brought against discriminatory legislation against LGBTQI+ people and the struggle for equal rights of same-sex married partners in Turks and Caicos Islands (TCI).
Stanbrook Prudhoe is a law firm specialising in complex and cross-border cases in the Caribbean region.
What legal action are you involved in?
Since 2021 we have been representing Tim Haymon, a US citizen, and Richard Sankar, a Turks and Caicos Islander, in legal proceedings against the TCI government. The case is now up on appeal after findings of breaches of rights protected under the TCI constitution. The couple married in Florida in 2020, but Tim has been denied an exemption from the need to obtain a work permit, although that exemption is available to the spouse of a Turks and Caicos Islander. There is no definition of ‘spouse’ under the relevant immigration legislation and the definition used in the letter of refusal referenced the marriage legislation. The Marriage Ordinance treats same-sex marriages as void.
The refusal of the spousal exemption was by the Director of Immigration. Tim and Richard brought proceedings against him alleging breaches of the protected rights of equality before the Law, the right to family and private life and freedom from discrimination on the basis of sexual orientation.
The trial took place in November 2022 and the decision was delivered in March 2024. The TCI Supreme Court upheld two of our three claims, finding violations of the constitutional rights to private and family life and to protection against discrimination on the basis of sexual orientation. However, the court did not uphold the claim of equality before the law. That is the subject of an appeal that will be heard on 23 and 24 October.
The government has also appealed. Although it relied on no evidence during the trial, it now disputes any findings of constitutional breach. The government’s legal team remains headed by Ivan Hare KC of Blackstone Chambers in London, UK. Colours Caribbean, an LGBTQI+ rights organisation, successfully applied to join the appeal as an interested party.
Before the claims were first started, Tim and Richard offered to abandon their legal action if the government enacted civil partnership legislation giving same-sex couples the same rights and benefits as opposite-sex couples. Unfortunately, this offer was ignored. Our appeal document itself repeats that offer. When we first made that offer, we even provided the government with a copy of the Cayman Islands legislation recognising civil partnerships as a precedent they could work from. But, again, no response.
The Supreme Court’s decision was a significant step forward for LGBTQI+ rights in TCI. Former TCI Premier Michael Misick criticised it publicly, calling for Richard to have his Turks and Caicos Islander status revoked. If successful, the government’s appeal would be a major setback for equality. Either way, the outcome will have broader implications for LGBTQI+ rights across the Caribbean.
What’s the status of LGBTQI+ rights in TCI, and what difference have recent Privy Council rulings made?
The status of LGBTQI+ rights in TCI has a long way to go still. The government’s reliance on traditional moral standards and recent rulings on marriage issues by the UK Privy Council, the final court of appeal for TCI and other British Overseas Territories, are significant barriers to the advancement of LGBTQI+ rights.
Recent Privy Council rulings on same-sex marriage in Bermuda and the Cayman Islands have significantly influenced the discourse on LGBTQI+ rights in TCI. The combined appeal on the right to marry in the Ferguson case in Bermuda and the Bodden Bush case in the Cayman Islands is particularly noteworthy.
In Bermuda, same-sex couples had the right to marry for a period before the law was changed. Marriages already performed remained valid, but no new marriages could be celebrated – a situation that led to a case being taken to the European Court of Human Rights on the grounds that those left out were in practical effect facing discrimination. The Privy Council ruled that marriage was a unique legal institution and those jurisdictions could decide the scope of marriage without violating their constitutions.
This gave us an insight into the Privy Council’s position. However, we distinguished our case in TCI by focusing on recognition of equivalent legal rights rather than the establishment of a right to marry. The government argued we were trying to introduce the right to marry via the back door, because of the attempt to invoke the spousal exemption from immigration restrictions.
The Privy Council’s decision, which confirmed that jurisdictions can define marriage, wasn’t that surprising. TCI’s constitution, like Cayman’s, includes a preamble about TCI being a God-fearing nation. The government’s arguments in TCI appeal rely heavily on this. This is pretty odd, in light of the fact that it failed to present any actual evidence at trial.
Despite these challenges, the LGBTQI+ community and its advocates continue to press for equality and recognition, reflecting a wider struggle in many small jurisdictions.
What are the challenges for LGBTQI+ activism in TCI?
A major challenge is stigma, which is keenly felt in a place as small as TCI. Despite the presence of people who identify as LGBTQI+, there isn’t a well-developed community infrastructure such as gay pubs or clubs. There’s been a slight improvement in visibility following recent decisions, but it hasn’t yet become a significant movement. For example, there’s now anticipation for an upcoming gay pride event, a notable first for the TCI, albeit modest, as a boat trip during Gay Pride Week in June.
Living as an LGBTQI+ person in TCI often means necessarily leading a discreet life. While there are both locals and expatriates in same-sex relationships, such partnerships are not flaunted or embraced as a popular lifestyle choice. Rather, they tend to remain private, perhaps implicitly acknowledged by the community but not openly discussed.
There’s a complex interplay between legal processes and government responses. Despite government appeals against decisions concerning LGBTQI+ rights, such actions are influenced by political dynamics, particularly when elections are approaching. The electorate consists solely of Turks and Caicos Islanders and has strong opinions on issues such as same-sex marriage, which politicians must navigate with caution.
Constitutional protections theoretically guard against discrimination, but practical enforcement is uncertain. While legal recourse exists in principle, instances of intimidation and hostility, such as aggressive media commentary or social media harassment, deter people from pursuing anti-discrimination cases.
In essence, while there is a legal framework to combat discrimination, the challenges of social stigma, political sensitivities and intimidation hinder progress towards full LGBTQI+ equality in TCI.
What role has civil society played in the case?
We’ve worked with the Pride group that’s recently emerged. Although not gay myself, I was pleased to attend their meeting to have a chance to explain relevant parts of the legal challenge. I have been a friend of Richard for many years, and more recently Tim as well.
The only outside group involved was Colours Caribbean, whose involvement in the Cayman case I had been aware of for some time. When they heard of our legal victory, despite ongoing appeals from both sides, they approached us to join the proceedings. We don’t control their involvement, but the fact that we haven’t objected to it apparently influenced the court’s decision to give them a speaking role in the October appeal.
What are your expectations?
I expect that Tim and Richard will win their appeal on the failure by the judge to deal with the equality before the law claim. Whatever the outcome of the government’s appeal, I expect that the British government will have to exercise its power of override, as it did in the Cayman Islands context, to introduce civil partnership recognition legislation. In TCI, the Governor, a British-appointed official, has a constitutional power to legislate in the best interests of the jurisdiction. For example, previous governors have forced through legislation decriminalising same-sex sexual activity – a move still resisted in other parts of the Caribbean.
I think our success will primarily relate to the anti-discrimination aspect of the lower court judge’s decision. Right now, we are in a perplexing situation: the judge has agreed with our argument that Richard and Tim’s constitutionally protected rights are being violated but he stopped short of implementing the necessary remedial measures.
This creates a glaring inconsistency: existing violations are acknowledged but no remedy is provided. So if another same-sex couple were to seek spouse treatment, they would be denied the exemption, even though the Court has recognised this as a breach of constitutional rights. It is unlikely that the Court of Appeal will accept this situation. We argue that the judge made a fundamental mistake in finding breaches but not proposing remedies. Moreover, the judge’s criticism of our approach fails to recognise alternative ways of remedying the situation, such as amending immigration laws to include same-sex couples in the eligibility criteria for spousal exemptions.
The delay in the judge’s decision, despite mounting pressure, suggests a rushed outcome in the end. It appears that in his haste, the judge failed to thoroughly explore possible solutions to the violations identified. I therefore anticipate that the Court of Appeal will scrutinise the lower court’s handling of the case and consider remedies in line with constitutional obligations.
What are the next steps?
The trajectory of progress depends heavily on the outcome of the Court of Appeal hearing. It’s unlikely a decision will be made immediately after the hearing, given the complexity and scale of the case. As we have argued that the lower court judge erred in his decision, the matter could be escalated to the Privy Council for constitutional review.
However, in terms of broader progress and the continued advancement of LGBTQI+ rights, increased visibility and public awareness are paramount. The greater the exposure and discussion surrounding the case, particularly at the appellate level, the more likely it is that attitudes will evolve positively. Increased awareness fosters confidence within the LGBTQI+ community, encouraging people to live more openly and authentically.
Historically, many people who identify as LGBTQI+ have felt compelled to leave TCI and seek more accepting environments abroad, primarily in cities in the UK or the USA. This trend underscores the prevailing reluctance to accept LGBTQI+ identities in the local context. It will undoubtedly take time to overcome this suspicion and foster a culture of acceptance, but progress is evident and ongoing.
It is my hope as a legal practitioner that church groups engage in this discussion in a constructive and inclusive way, avoiding regressive interpretations of religious doctrine. Such interpretations, rooted in outdated beliefs, only serve to hinder progress. It’s worth noting that TCI, essentially a tourist destination, relies heavily on its reputation as a progressive and welcoming place. Failure to address LGBTQI+ rights risks tarnishing this image, with negative implications for tourism and therefore for economic prospects.
Advancing LGBTQI+ rights in the TCI requires ongoing advocacy, awareness-raising and a concerted effort to foster a culture of inclusion and acceptance within the local community and wider society.
Get in touch with Stanbrook Prudhoe through its website and connect with Tim Prudhoe on Linkedin.
