The Tribune

By RICARDO WELLS

Tribune Staff Reporter

rwells@tribunemedia.net

IN an effort to “silence the unnecessary noise in the market” surrounding the fourth Constitutional Amendment Bill, an official from the YES Bahamas campaign said yesterday that a “yes” vote to this bill would “effectively close the door on same-sex unions” in The Bahamas.

This is according to Cheryl Bazzard, co-executive director of the YES Bahamas campaign.

The former Progressive Liberal Party senator, expanding upon a statement from the Office of the Attorney General released Sunday night, said the Christie administration has treaded carefully in its crafting of the fourth bill. The amendment seeks to end discrimination based on sex in the Constitution, by inserting the word “sex” into Article 26.

She admitted yesterday that the Constitution was weakened through the contradictory positions of Article 15 and Article 26 (4)(c).

Article 15 protects the fundamental rights and freedoms of Bahamians, and in part, protecting individuals from discrimination based on “sex”.

However, there is no established legal definition of the term “sex” in Article 15, or in any other section of the Constitution.

According Mrs Bazzard, this is where the legal issues are derived and underscores the need for an amendment.

She said the government has recognised that the Constitution has left itself exposed in this area, and because of the legal constraints of Article 26 (4)(c), the government cannot amend the Constitution to reflect a needed change without the approval of the people.

Article 26 (4)(c) states that the non-discrimination provisions of Article 26 do not apply to laws enacted before 1973 – laws such as Article 15.

“Sex” in amendment four is defined as “male or female,” which supporters of the referendum have said means at birth.

“What this effectively does is close the door to an open interpretation of what (sex) means under Article 15. This now gives the court a direction to what it needs in saying that sex means male or female and not sexual orientation, not sexual preference; it effectively closes the door on same-sex marriage,” she said.

“When we look at Article 26 (4)(c) which enshrines marriage and the right of Parliament and the Constitution to discriminate on areas such as marriage, what the definition of sex in the Constitution does in defining it as male and female is that it points the court to a specific definition that it must look at when it is interpreting exactly what sex means.”

Those that oppose the enactment of the bill four have argued that if a case in support of gay marriage is taken through the courts all the way to London’s Privy Council, The Bahamas’ highest court of appeal, the English court would rule in the favour of same-sex marriage.

Speaking directly to that assertion, Mrs Bazzard used the example of the Privy Council’s ruling on the death penalty.

She indicated that the court made its decision not on international merit, but on the rights enshrined in the Bahamian Constitution.

She pointed out that under Article 15 of the Constitution, all Bahamians’ right to life is protected and cannot be infringed upon.

“They didn’t use British law or international rulings, it is our law that makes that call. Similar to the same sex-marriage (concern). Our Constitution gives rights to all. We want to ensure that rights based on sex are protected for males and females. A male at birth is assured all rights granted to a male and a female at birth is granted all rights assured to a female.”

“Transgender, homosexuals and all other groupings are granted their rights assured to them through the sex they were born with. Now we are looking to define that ‘sex’ is referring to ‘sex’ at birth and not sexual orientation, preference or anything else that can be perceived,” she added.

The referendum is set for June 7.