Consensual same-sex intimacy in Trinidad and Tobago was originally criminalised under the Offences Against the Person Act 1925, which prohibited buggery, with a term of five years imprisonment, and gross indecency between males, with a term of two years imprisonment.
In 1976, the current Constitution of Trinidad and Tobago was adopted. The Constitution includes a ‘savings law clause’, in other words, a clause that provides that laws that existed prior to the adoption of the Constitution cannot be invalidated by the courts, even if they violate fundamental human rights. The savings law clause also provides that where an existing law has been modified by a subsequent enactment, and that enactment goes further in violating fundamental rights than the existing law did, then the provisions of the existing law must substitute the provisions of the enactment.
In 1986, Trinidad and Tobago adopted the Sexual Offences Act to repeal and replace the laws relating to sexual crimes. This Act prohibits buggery under section 13 with a maximum term of imprisonment of 25 years, and ‘serious indecency’ under section 16, extending this prohibition to women, with a maximum term of imprisonment of five years.
In 2018, the High Court ruled that sections 13 and 16 of the 1986 Act were unconstitutional, despite the savings law clause, and consequently ‘null’ and ‘void’.
In a judgment dated 25 March 2025, the Court of Appeal disagreed with the High Court’s analysis of the savings law clause, finding that the clause did apply. It held that the 1986 Act repealed and re-enacted the corresponding provisions of the 1925 Act with modifications, which included stiffer custodial sentences, the inclusion of women in the crime of serious indecency and the change of name from ‘gross’ indecency to ‘serious’ indecency. These modifications went further in violating fundamental rights than the ‘existing’ (original) law. Therefore, the correct interpretation of the savings law clause required the harsher provisions of the 1986 Act to be substituted by the lesser provisions of the original 1925 law. The Court of Appeal noted that it is for Parliament to repeal the criminalisation of buggery and the related offence of gross indecency by legislation.
The immediate effect of the Court of Appeal’s order is that same-sex intimacy is now again criminalised in Trinidad and Tobago between males only, with maximum penalties of five years for ‘buggery’ and two years for ‘gross indecency’.
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