Feature image created using a photo by Janine Mendes-Franco (used with permission) and Canva Pro elements.

Following the March 25 overturning on appeal of a landmark 2018 High Court decision in Trinidad and Tobago that deemed the criminalisation of anal sex between consenting adults “unconstitutional,” respondent Jason Jones will take his case to the UK's Judicial Committee of the Privy Council, which still remains the twin island republic's highest court of appeal.

Given that two out of three appeal court judges overturned the 2018 ruling on the grounds that the clauses in question are part of “savings law” – colonial era legislation that was carried over post-independence, the irony of having to go before British law lords to resolve the case was not lost on Jones, who called it “an enormous anomaly and mockery of our Independence that a British Court will make the final decision in this matter.” On Facebook, Trinidadian actor/director Rhoma Akosua Spencer agreed, calling it “a travesty.” Still, Jones admitted he “always knew the case would end up there.”

Key points in the appeal judgement included the finding that the “savings clause” protects colonial-era laws from being invalidated, regardless of whether they infringe upon modern-day constitutional rights. “As unpalatable as that may be,” Justice Bereaux explained, “that is the effect of Section 6(2) of the Constitution.”

To Jones, however, the “effect” has been much more tangible. He called the ensuing 48 hours after the overturning of the judgement “deeply traumatic,” and accused the judges of “unleash[ing] a wave of homophobic hatred” in which he was “singled out for a particularly vile amount of online harassment and bullying.”

While the judges reduced the penalty for buggery from 25 years’ imprisonment to five, criminalisation of the act remains on the books. To this point, the judges laid the responsibility of changing these laws on the country’s parliament.

Jones, however, maintains that the two appeal court judges “went out of their way” to overturn the 2018 judgement, which he said “has so far been cited in [five] other cases, including the world’s largest democracy India 🇮🇳 and led to decriminalisation there of over 80 MILLION LGBTQ+ people!” He added that the rationale of “overturning this landmark judgment [by] reverting our Republican Constitution back to 1925 BRITISH COLONIAL LAW” was “an absolute MOCKERY of our Constitution and our Republic!”

Yet, as one jurist told Global Voices, laws can only be changed via the legislative process. Against this reality, the Law Association of Trinidad and Tobago (LATT) issued a statement on the appeal court ruling in the high-profile case, noting that “the Court ruled unanimously that sections 13 and 16 of the Sexual Offences Act which criminalise buggery and gross indecency did not pursue a legitimate aim, disproportionately interfered with freedom of thought and expression and were not reasonably justifiable. They were accordingly inconsistent with the fundamental rights provisions of the Constitution. The Court also noted that the sections were rarely enforced.”

While Jones was pleased to see LATT “supporting important Constitutional reforms and protections for the LGBTQ+ community,” he also addressed the perception surrounding the enforcement of the law:

Thankfully, I no longer get idiotic questions asking me WHY as an activist I focus my energy and resources on fighting to remove these discriminatory laws. […] The comments regarding the recent homophobic ruling REVERSING the 2018 decriminalisation victory reveals how deeply entrenched homophobia is in our society and how threatening and violent citizens can be towards our marginalised communities citing these laws as needed to protect THEIR rights to be homophobic!

The LATT statement continued, “The Court noted the broad scope of the savings law clause, which applies even when a later act repeals and replaces an existing law with modifications, as occurred in this case. The dissenting judge disagreed with this latter conclusion.” The fact that the buggery law remains on the country’s statue books, the law association concluded, “highlights the need for urgent constitutional reform to remove the savings law clause.”

Citing its its own recommendations to the National Advisory Committee on Constitutional Reform, LATT data showed that as much as 54 percent of its membership agrees that the savings law clause should be abolished, while “65 percent believe that Section 4 of the Constitution should be amended to include protection from discrimination based on gender and sexual orientation.”

Noting that “the savings law clause has attracted sustained criticism, including from preeminent Caribbean constitutional scholars,” and that removing the immunity of “colonial laws and punishments from being declared unconstitutional” will be far from catastrophic, LATT explained that there has been regional precedent: “Such clauses only applied for a short period in Belize, and they are read to conform with the Constitution in Barbados, Dominica, Guyana and St. Lucia.”

As if to emphasise the absurdity of the savings law, LATT observed that in Trinidad and Tobago, it applied to everything from loitering and sedition to “singing a profane ballad, being an incorrigible rogue and trundling a hoop,” all of which “have questionable place in any modern democracy [but which] remain fossilised in our statute books.”

In closing, the association said it hoped “that urgent legislative action will be taken to correct this state of affairs,” since the Constitution, as the “supreme law, “sets out the rights and freedoms of all individuals, and celebrates the dignity of us all. It should no longer preserve legislation that clearly violates human rights and fundamental freedoms.”

It is a position that has been echoed by Jones himself, as well as in local newspaper articles and by the Inter-American Commission on Human Rights, which spoke out against the re-criminalisation of the buggery law. On Facebook, Liam Rezende added that “laws that criminalise same-sex intimacy legitimise discrimination and harassment, fuel violence and fear, create barriers to healthcare, and deny LGBTQ+ people the dignity, safety, and equality we deserve”:

Beyond the grave human rights implications, LGBTQ+ discrimination also carries significant business and economic costs.

It stifles talent, discourages investment, limits innovation, and makes it harder for companies to attract and retain diverse, high-performing teams. In today’s global economy, inclusion isn’t just a moral imperative — it’s a business one. Countries that fail to protect LGBTQ+ rights risk being left behind.

This news is deeply disappointing — a stark reminder that progress is not linear, and hard-won rights can never be taken for granted.

As for Jones, the fight continues. Part of his argument before the Privy Council may involve the fact that Trinidad and Tobago, under its new Republican Constitution, created a new law within the Sexual Offences Act dubbed “Serious indecency,”which Jones contends makes it “no longer colonial-era law.” He also believes that “the fight for queer rights in the Global North has a direct impact on us in the Global South […] We as a community need to come together and make sure that we're not leaving people behind.”