The constitutional challenge to the cross-dressing law

Alissa Trotz is editor of the In the Diaspora Column

This column is dedicated to the memory of Dwayne Jones, murdered in Montego Bay, Jamaica, in July of this year. Jones had been attacked and beaten to death by a crowd after attending a party dressed in female attire.

in the diasporaJust a little over two weeks ago, acting Chief Justice Ian Chang delivered his decision on a motion that had been filed in Guyana’s high court in 2010, and which challenged a law under which seven persons were arrested and charged with dressing in female attire for an improper purpose under Section 153 (1) (XLVII) of the Summary Jurisdiction (Offences) Act Chapter 8:02. Four of the seven arrested persons and the Society for Sexual Orientation Discrimination, represented by a group of lawyers under the Faculty of Law UWI Rights Advocacy Project (U-RAP) and Gino Persaud who served as instructing counsel, challenged the law as violating several fundamental rights as guaranteed by the Guyana constitution. In his judgment, Justice Chang upheld the law in its entirety, rejecting all arguments about its unconstitutionality. At the same time, he emphasized that there is nothing to prohibit “a person wearing an ‘attire’ for the purpose of expressing or accentuating his or her personal sexual orientation in public.”

There is guarded optimism in some quarters that Justice Chang’s ruling that there is nothing improper per se about cross-dressing goes some way to recognizing LGBT rights. I am a layperson when it comes to the law, but for me the ruling clarified that we have a long way to go to combat homophobia and transphobia, as well as to unequivocally uphold the Guyana Constitution, and the fundamental rights provisions it enshrines, as the supreme law of the land.

Several dimensions of the ruling are deeply concerning. At the time of the criminal trial, Chief Magistrate Melissa Robertson reportedly instructed the defendants that they were “confused” and should “go to church and give their lives to Christ.” The applicants to the High Court sought a declaration that such statements from the bench disregarded their rights to freedom of thought and religion and violated the constitutional declaration that Guyana is a secular state. Justice Chang’s response that the Chief Magistrate was merely proselytizing like any religious leader, and that her exhortations could therefore not be considered a constitutional infringement, seems strange. Article 149 (1) of the constitution tells us that “no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.” Is a magistrate not appointed to perform the functions of a public office? And what does it mean that in executing such duties, the chief magistrate should tell defendants that they should become Christians (presumably to clear up any confusion about their gender and sexual identity)? This position cannot be compared to that of a religious leader, not least because none of the seven defendants brought before the court chose to be there and to receive the ‘advice’ handed down to them. It is extremely difficult to see how a direct rebuke and instruction, made by a magistrate in the middle of a hearing over which she is presiding and over which she has ultimate authority and sentencing power, could be construed as harmless proselytising.

The applicants also sought a declaration that the law discriminates against persons on the basis of sex and gender, contrary to article 149 of the constitution. In rejecting this argument, the Chief Justice opined that the law could not be considered to be discriminatory since it applied equally to men (dressing in female attire) and women (dressing in male attire). Justice Chang’s decision that fairness has to do with the equal application of the law to men and women rules out careful attention to the content of the law itself. We could come up with other examples to show how this thinking is deeply flawed and short-sighted, say a ruling that upholds a racist law that criminalizes inter-racial marriages between Indians and Chinese, arguing that since both Indians and Chinese are equally liable to face charges and go to jail if they intermarry, then the law is not racially discriminatory. In short, what this judgment says is that the law is not discriminatory because men and women are equally vulnerable to its discriminatory provisions. It not only forecloses consideration of how the discrimination at work here turns on penalizing people for not conforming to stereotypes based on ideas of masculine and feminine gender roles, but by adhering to the law’s binary notion of women and men in Article 153, it reinforces the marginalization of transgendered persons.
In his ruling, Justice Chang stated that cross-dressing by itself is not a criminal offence; it only becomes one when done for an improper purpose. Improper here seems to be akin to illegal, but what exactly constitutes an improper purpose has been left completely undefined. Is a purpose the same as an act, or does it refer simply to an intention to do something (in which case can you be charged for having an improper
intention?). And if improper purpose refers to illegal acts like robbery, fraud, surely those are already covered by existing legislation? What this law effectively does is punish people for cross-dressing, thus bringing us full circle to its discriminatory intent. If a friend and I are charged with loitering and I am seen as a biological woman wearing men’s clothes, then I face additional charges under Section 153 (1). It is my clothing that singles me out as liable in a way that my friend is not. Let us not even get into the question of what is men’s and women’s clothing. One clue is supplied in the judgment, when in a truly torturous section discussing attire which is seen as covered by the law, and accoutrements which are not, earrings are referred to as women’s and finger rings as men’s. Really?

In his decision, Justice Chang rightly awarded damages to the four litigants on the basis of the police officers’ failure to inform them of the reasons for the arrests, violating their constitutional rights to due process. But leaving the law as it stands reinforces the LGBT community’s vulnerability. As Gulliver, one of the applicants and director of Guyana Trans United (GTU), stated, “…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 imprecision attached to ‘improper purpose’ gives wide discretionary powers to the police and the justice system in a context where the cards are heavily stacked against LGBT persons. In a 2012 report, author Christopher Carrico noted that persons interviewed spoke of regular police harassment, arbitrary arrest, abuse and prosecution. What is to stop the police from threatening people who cross-dress, or holding them on suspicion of having an improper purpose? Nothing in this judgment prevents such an arbitrary application of the law because we are no clearer on what ‘improper purpose’ means. In the face of seven transgendered persons who went to prison, the learned Chief Justice could not give us any answer.

This brings us to a final point, Justice Chang’s refusal to accept that the law was unconstitutional, ruling that it had been in existence since 1893 and was therefore protected from challenge under Article 152 (1) of the constitution (the savings law clauses, which essentially preserved pre-existing laws at the time of independence from constitutional scrutiny).

Diana Paton, Reader in Caribbean History at Newcastle University, points out that “the vagrancy laws in the Caribbean, including those included in the Guyanese Summary Jurisdiction Act, date from a period shortly after slavery when the colonial authorities were looking for new ways to control the population. Part of this drive was focused on ensuring that people took on wage labour, but vagrancy legislation was also used to enforce specific norms of behaviour that were mostly derived from Victorian ideas of respectability and proper behaviour.” In addition to cross-dressing, some of the other ridiculous offences that remain on the lawbooks as part of Section 153 (1) penalize anyone who:

(xi) in any public way or public place in any town, beats or shakes any mat between seven in the morning and six  in the afternoon;
(xxix) in any public way flies any kite or plays at any game;

Having a sense of the context that produced Section 153 (1) underlines how an independent country continues to breathe life into colonial laws designed to keep the majority of Caribbean peoples in a state of bondage. Arif Bulkan, one of the lawyers representing the applicants, identifies the irreconcilable tension between “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.” Justice Chang took a decidedly conservative approach, ruling that this was a matter that required legislative not judicial action, missing a golden opportunity, as SASOD member Zenita Nicholson put it, to give life to the constitution. Some may not find this altogether surprising, in light of his past judgments on indigenous rights and sexual offences/women’s rights.

In the former, Justice Chang has ruled in the first case ever decided in Guyana regarding an indigenous land title claim on the basis of a doctrine long overturned around the Commonwealth, including in Belize. In that case, Chang CJ said in his judgment that if mining operations were affecting the claimant community, they would have retreated to other areas! In relation to sexual offences/women’s rights, in the Greene case last year the acting CJ quashed a rape charge against the former police commissioner after embarking on a lengthy dissection of the complainant’s evidence. Some might say that this is ordinarily the function of the jury, but aside from those procedural questions the decision underlined how modern legislation is often underused in this country (in this case the much-touted Sexual Offences Act), and it also highlighted the CJ’s conservatism in relation to rights’ issues – in this case those being the rights of victims.

But Justice Chang’s ruling comes as a timely reminder that our efforts to ensure that the constitution is not a hollow instrument should also be directed beyond the courts. The role of parliamentarians rightly deserves scrutiny. In 1997, instead of updating and harmonizing the laws, the government simply increased penalties for all offences across the board (begging the question as to whether these changes nullify the immunity of Section 153 (1) from constitutional challenge). What does it mean that those persons elected to represent all Guyanese, and who have overseen important constitutional reforms that are completely at odds with many of these laws, have never bothered to address whether the offences should be kept in the first place? Remember too that parliament capitulated to objections emanating mainly from some religious quarters, sidelining the sexual orientation bill in the constitutional reform process so that it is not included as a basis for discrimination in the Guyana Constitution.

The constitutional challenge to the cross-dressing law in Guyana holds crucial lessons for the Caribbean, and we should pay close attention to the case as it makes its way through the appeals process. It brings us face to face with the violent and exclusionary legacies of our colonial past that haunt our laws and lives today, marking some as more deserving and equal than others. It reminds us that laws can be selectively applied to uphold a status quo that protects the few, where those without the so-called respectability of money and power can be regularly and readily targeted for persecution. Those who have brought the case and the organizations they have formed like Guyana Trans United and the Society Against Sexual Orientation Discrimination, are keeping a necessary spotlight on discrimination on the basis of sexual orientation and gender identity. Their advocacy asks us to consider whether the freedoms that some of us enjoy in the Caribbean are based on the unfreedom of others. Surely this is not the lesson to be learned from the struggles of our ancestors.

This struggle, at a fundamental level a struggle for psychic decolonization, is captured by Bob Marley’s summons to emancipate ourselves from mental slavery. What futures are we constrained to imagine if we tether ourselves to the worst dimensions of our pasts? If we are to see ourselves as one people (Guyana), one people out of many (Jamaica), a space where every creed and race find an equal place (Trinidad & Tobago), then let us work together for a more generous and compassionate notion of freedom that can truly include all of us and all of ourselves.

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