The ruling by acting Chief Justice Ian Chang that the law against cross-dressing does not discriminate against any gender has been labelled as “dubious” by several groups advocating for gay rights who have indicated an intention to appeal.
On Friday, Justice Chang delivered his judgment in the case of Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) vs. the Attorney General of Guyana and ruled that the law against cross-dressing does not discriminate against any gender. He also ruled that both men and women are free to cross-dress in public as long as the reason for doing so is not an improper purpose. What constitutes an “improper purpose” is now being questioned following the decision.
Through a Notice of Motion, McEwan, Clarke, Fraser, 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. In his decision, Justice Chang denied almost all of the constitutional redress sought by four men who were fined for wearing female attire and SASOD and who challenged Section 153 (1)(XLVII) of the Summary Jurisdiction (Offences) Act.
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 in 2009. 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.
In a joint statement yesterday, SASOD, Guyana Trans United (GTU), Caribbean Vulnerable Communities Coalition (CVC), Caribbean Forum for Liberation and Acceptance of Genders and Sexualities (CariFLAGS) and the Faculty of Law University of the West Indies Rights Advocacy Project (U-RAP) noted that Justice Chang also decided that section 153 (1) (XLVII) of the Summary Jurisdiction (Offences) Act, is immune from the constitutional challenge brought by the four transgender litigants and their supporting organisations.
The statement pointed out that according to the ruling, 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 statement said that the litigants are preparing to appeal this and other aspects of the 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.” 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, according to the statement.
In reacting to the judgment, the first-named applicant, McEwan, better known as Gulliver, who is also the Director of Guyana Trans United (GTU), noted that, “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,” he said. The court did not clarify what improper purposes gave rise to the arrests in this case, the statement said.
It noted that 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.
“The constitutional moment presented by this case demanded more detailed assessment of the issue of discrimination against transgender persons,” said Se-shauna Wheatle, a Jamaican and Lecturer in law at Exeter College at the University of Oxford.
“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,” said Wheatle who is also a researcher in the fields of comparative human rights law and comparative constitutional law and the author of the 2013 report “Adjudication in Homicide Cases involving Lesbian, Gay, Bisexual and Transgender (LGBT) Persons in the Commonwealth Caribbean.”
The statement also noted that the court also ruled that 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. “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 which the litigants expect to argue before the Court of Appeal,” the statement said.
“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,” Zenita Nicholson, Secretary of SASOD’s board of trustees, 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,” said Dr. Arif Bulkan who argued the case on behalf of the litigants.
Bulkan, 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, 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. “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,” he said.
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.
The 1893 law makes it a criminal offence for men to wear female attire and for women to wear male attire “in any public way or public place, for any improper purpose.” 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 $7,500 (GYD) each,” the statement said.
“The law is plainly at odds with the Guyana Constitution which states that it is committed to ‘eliminating every form of discrimination’,” Dr. Bulkan said.