GEORGETOWN, Guyana — On Friday afternoon, Guyana’s acting chief justice, Ian Chang, delivered his judgment in a case involving the Summary Jurisdiction (Offences) Act, which makes it a criminal offence for a man to wear female attire, and a woman to wear male attire, publicly, for any improper purpose.
The chief justice said that cross-dressing in a public place is an offence only if it is done for an improper purpose.
The chief justice also found that the police violated the human rights of the four litigants in the case during their crackdown in February 2009, when they arrested them under section 153(1)(xlvii) of the Act and he awarded each of the four arrested compensation of GY$40,000 (US$197) for breach of their rights to be informed as soon as reasonably practicable as to the reason(s) for their arrests under Article 139 (3) of the Guyana constitution.
Chang also decided that section 153 (1) (xlvii) of the Act is immune from the constitutional challenge brought by the four transgender litigants and their supporting organisations. As an 1893 law, pre-dating Guyana’s independence, the chief justice said, “Legislative rather than curial action is necessary to invalidate the provision.”
The litigants are preparing to appeal this and other aspects of Friday’s court decision.
Colin Robinson, manager of the CariFLAGS secretariat based in Trinidad, praised the court’s finding that “It is not criminally offensive for a person to wear the attire of the opposite sex as a matter of preference or to give expression to or to reflect his or her sexual orientation.”
CariFLAGS is a lesbian, gay, bisexual, transgender and intersex (LGBTI) Caribbean advocacy network with offices in Castries, Kingston, Port of Spain and Santo Domingo, and affiliate organizations across the region.
The court also found that the law applies only to “attire” and not other gendered accoutrements such as head wigs, ear rings or even shoes.
“The learned chief justice, however, has confused sexual orientation with gender identity,” Robinson commented.
Reacting to the judgment, the first-named applicant, Quincy McEwan, better known as Gulliver, who is also the director of Guyana Trans United (GTU), noted, “The chief justice was relatively clear that once you are expressing your gender identity, it’s not criminal for a man to wear female attire. But the law really stifles us, because what could be an improper purpose? The trans community is very worried, and still fearful of arrests, in light of this decision.”
The court did not clarify what improper purposes gave rise to the arrests in this case.
The chief justice was not convinced the cross-dressing law amounted to “discrimination” on the basis of gender, which would have been in violation of the Guyana constitution.
The court also ruled that the prohibition in the 1893 law is against persons of both genders for the same conduct and, as such, does not amount to discrimination based on gender.
Se-shauna Wheatle, a Jamaican author and lecturer in Law at Exeter College at the University of Oxford and a researcher in the fields of comparative human rights law and comparative constitutional law, said, “The constitutional moment presented by this case demanded more detailed assessment of the issue of discrimination against transgender persons.”
She observed, “The reasoning of the learned judge omitted any discussion of the prescription of gender roles to individuals according to their sex and the consequent requirement that individuals dress according to those prescribed gender roles. There was no discussion of the way in which the challenged section reflected such prescription of gender roles or the impact of this dynamic on persons who are transgender.”
The court also ruled that the Society Against Sexual Orientation Discrimination (SASOD) had no locus standi (standing) in the matter since the individual applicants brought the claim in their own names as the persons who were personally aggrieved.
However, the Guyana constitution was the first in the English-speaking Caribbean to give “an association acting on behalf of its members” the right to bring a claim before the constitutional court that there has been a breach of the guaranteed fundamental rights.
The standing of SASOD is one of the issues that the litigants expect to argue before the court of appeal.
Similar sentiments were echoed by Zenita Nicholson, secretary of SASOD’s board of trustees.
“I feel the court lost a golden opportunity to give life to the Guyana constitution by vitiating this 1893 law against cross-dressing and establishing that all Guyanese are entitled to fundamental rights and freedoms, including our transgender citizens, who unfortunately will continue to be vulnerable to human rights abuses, with this dubious decision. We must appeal it,” she said.
Dr Arif Bulkan, who argued the case on behalf of the litigants, is a lecturer in constitutional law and human rights law at the Faculty of Law, UWI, St Augustine and a coordinator of the Faculty of Law UWI Rights Advocacy Project (U-RAP), which has managed the litigation.
Bulkan said, “This case raises issues of great public and constitutional importance relating to the scope of the restrictive savings law clauses in the constitution that limit challenges to repressive colonial laws and the new provisions in the Guyana constitution dealing with equality and non-discrimination. The region is closely watching this case.”
He added that the legal team for the litigants, which includes Gino Persaud as instructing counsel, looks forward to arguing these important human rights concerns before the Court of Appeal.
He said, “In the content of our laws and details of our conduct, we must give meaning to the strong commitment in the constitution to eliminate ‘any and every form of discrimination’ in Guyana.”
The case of McEwan, Clarke, Fraser, Persaud and SASOD v. Attorney General was initiated four years ago following the February 2009 conviction and fine of seven individuals for violating section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act.
Other activities criminalised in section 153(1) are: grooming an animal in a public place; placing goods in a public way in town; beating a mat in a public way; flying a kite in the city; loitering around a shop and hauling timber in a public way. Unrepresented and unaware of their rights, the defendants were detained in police custody over the weekend, and then hustled through the legal system and fined GY$7,500 each.
Bulkan explained that this colonial law was part of repressive penal regimes instituted in the second half of the 19th century throughout the Caribbean to severely constrain the lives and actions of recent freed Africans and the newly arrived indentured servants.
Bulkan noted, “Despite the discriminatory aspects of these colonial laws, and their low regard for the majority colonial populations, vagrancy laws like section 153(1) have been kept in effect long after independence.”
He added, “The law is plainly at odds with the Guyana constitution, which states that it is committed to ‘eliminating every form of discrimination.’”