Acting Chief Justice Ian Chang has ruled that the law against cross-dressing does not discriminate against any gender, while finding that both men and women are free to cross-dress in public as long as the reason for doing so is not improper.
In a decision handed down on Friday, Justice Chang denied almost all of the constitutional redress sought by four men who were fined for wearing female attire and the Society Against Sexual Orientation Discrimination (SASOD), who challenged Section 153 (1)(XLVII) of the Summary Jurisdiction (Offences) Act.
“…It is not a criminal offence for a male to wear female attire and for a female to wear male attire in a public way or place under Section 153 (1) (XLVII). It is only if such an act is done for an improper purpose that criminal liability attaches,” Chang noted in his 34-page ruling.
“Therefore, 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. It is the improper purpose for such conduct to which criminality is directed,” he added.
Through a Notice of Motion, Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and SASOD had asked for declarations that the cross dressing offence banned under Section 153 (1)(XLVII) contravenes the prohibition of discrimination and the guarantees of equality and freedom of expression, under Articles 149 and 146 of the Constitution.
Justice Chang did, however, hold that it did not appear that McEwan, Clarke, Fraser and Persaud were informed by police of the reason for arrests and detention prior to their being charged. As a result, he said that their constitutional right to be informed of the reason for their arrest as soon as reasonably practicable under Article 139(3) of the Constitution was deliberately denied and each of them was awarded $40,000 in damages.
Attorneys Gino Persaud, Arif Bulkan, Tracy Robinson and Nigel Hughes, who make up the legal team for the applicants, have already indicated their intention to appeal.
Persaud said the team was disappointed with the ruling and is optimistic about an appeal. “We feel confident about opening the judgment to the scrutiny of appellate courts,” he further said. “A lot is at stake here in relation to the dignity of all Guyanese,” he added.
According to Persaud, the case raises important questions about the appropriateness and constitutional validity of colonial vagrancy laws, like the cross dressing law and the meaning of the both older constitutional provisions like savings law clauses and newer guarantees like equality. “These are the kind of issues of public and legal significance that appellate courts are accustomed to addressing,” he also observed.
Section 153 (1) (XLVII) makes every man who appears in “female attire” and every woman who appears in “male attire,” in any public way or public place, “for any improper purpose,” liable to a fine not less than of $7,500 or more than $10,000.
Chang noted that the attorneys for the men claimed that insofar as the section bans transsexual dressing in contradistinction to any other form of conduct for criminality where the purpose is improper, it discriminates against persons on the basis of their gender, in contravention of Article 149(2) and also violates their right to freedom under Article 146(1). But he said that the section is directed against the conduct of both men and women.
“It prohibits both males and females… from wearing the attire of the opposite sex in a public way or place for an improper purpose. Since the prohibition is against persons of both genders for doing the same kind of act, it cannot be successfully argued that the provision discriminates against persons on the basis of gender,” he found.
He emphasised that in both “pith and substance” the section creates a prohibition against both males and female persons equally acting in the same manner for any improper purpose. It “does not discriminate against male or female person(s) on the basis of gender,” he said.
Justice Chang also said that the court failed to see, on evidence, in what way the right of any of the applicants to equality before the law or equal protection of the law had been infringed.
In addition to the declarations that the law violates the constitutional protection against discrimination as well as the guarantees of equality and freedom of expression, the applicants also asked the court to declare that the offence under the Section is vague and of uncertain scope, thereby making the offence contrary to the rule of law and unconstitutional; and that the offence is irrational, discriminatory and undemocratic and contrary to Articles 1 and 40 of the Constitution.
However, Justice Chang said it did not appear that the section could be challenged on the ground of constitutional inconsistency, while noting that it had been part of the laws since 1893 and survived both the 1966 and the 1980 Constitutions. “As existing or rather pre-existing law under both Constitutions, it has continued in force without constitutional challenge until now,” he said, while adding that legislative action is necessary to invalidate it.
Addressing the contention that the section is unenforceable due to “vagueness and uncertainty,” the judge noted that the attorneys for the applicants argued that the words “improper purpose” as well as “female attire” and “male attire” created the problem. However, he argued that since social values, mores, customs and attitudes undergo change with time and circumstances, the legislature has “intentionally used free-standing terms,” thereby leaving it to the court to determine whether a particular purpose is improper and whether a particular piece of attire is “male” or “female,” in the prevailing social conditions and circumstances.” Thus, neither terms “improper purpose” nor the terms “female attire” or “male attire” can be viewed as so inherently vague or uncertain that it would be impossible for the court to determine whether a particular piece of attire is female or male,” he said.
Justice Chang also found that SASOD had no locus standi in the matter, since it could not represent the applicants who brought the application in their own names as the persons who were aggrieved. “There is simply no room for a representative applicant when the persons who have been aggrieved have themselves instituted proceedings on their behalf,” he said, while declaring that SASOD was improperly enjoined as an applicant and he ordered that it be struck out.