A magistrate’s advice to four transgendered men—that they were confused and should give their lives to Jesus Christ—did not amount to discrimination on the basis of religion, acting Chief Justice Ian Chang has ruled.
Then acting Chief Magistrate Melissa Robertson had been accused by Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimi-nation (SASOD) of being “improperly influenced by irrelevant considerations” when the men appeared before her in 2009, on charges of wearing female attire.
The men, who subsequently challenged the constitutionality of Section 153 (1) (XLVII) of the Summary Jurisdiction (Offences) Act, under which they were charged and fined after they offered guilty pleas, had also asked the court to declare that Robertson discriminated against them on the basis of religion, and violated a fundamental norm of the Cooperative Republic of Guyana as a secular state.
In their supporting affidavits, they claimed that when they appeared before the court, Robertson told them that they were confused about their sexuality, that they were men and not women and that they must go to church and give their lives to Jesus Christ.
Article 145(1) of the Constitution states, “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this article the said freedom includes freedom of thought and of religion, freedom to change his belief either alone or in community with others, and both in public and private, to manifest and propagate his religion on behalf in worship, teaching, practice and observance.”
In his ruling on the case last Friday, Justice Chang said the court had “extreme difficulty” accepting the contention that the magistrate’s exhortations to the men constituted a hindrance to their freedom of thought and freedom of religion.
“Otherwise, every religion leader, in propagating the religion to which he or she subscribes would be guilty of infringing the freedom of thought and of religion of anyone who happens to hear him or her proselytising,” he said.
“At the highest, the Chief Magistrate can be accused of proselytising. But proselytising does not constitute a hindrance to freedom of thought and of religion,” he adding, while refusing to grant the declaration sought.
Through a Notice of Motion, the men and SASOD had also asked for declarations that the cross dressing offence prohibited 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.
However, Justice Chang ruled that the section 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. “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 said.
The judge also said it did not appear that the section, which has been part of the laws since 1893 and survived both the 1966 and the 1980 Constitutions, could be challenged on the ground of constitutional inconsistency and added that legislative action is necessary to invalidate it.
The court only found in the men’s favour on their claim that they were not 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.
The legal team for the men, made up of attorneys Gino Persaud, Arif Bulkan, Tracy Robinson and Nigel Hughes, has already announced its intention to appeal. Attorney Kamal Ramkarran represented the Attorney General, who was named as the respondent in the case.
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) have since labelled the ruling as “dubious” and reiterated the intention to appeal it.