Judgment in cross dressing appeal case expected early next year

A hearing on the appeal of the decision of former acting Chief Justice Ian Chang that both men and women are free to cross-dress in public once the reason for doing so is not improper, was held last Friday at the Court of Appeal in Georgetown.

The appellants, Quincy McEwan, Seon Clarke, Joseph Fraser and Seyon Persaud, were all charged and fined in 2010 for wearing women’s clothing for an improper purpose under Section 153 (1) (XLVII) of the Summary Jurisdiction (Offences) Act Chapter 8:02.

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.      

Justice Chang had 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. The meaning of “improper” was, however, questioned by the four appellants, in part because of what they refer to as the inherent uncertainty in the terminology employed in the statute. Their contention too is that it contravenes the prohibition of discrimination and the guarantees of equality and freedom of expression, under Articles 149 and 146 of the Constitution.

Representing the State is attorney Kamal Ramkarran who acknowledged being served with the appeal to which he has responded.

Meanwhile, the appellants have been given four weeks to respond. Thereafter, if need be, the State will also be given four weeks to respond. The court will thereafter make a ruling in the matter.

The case has been adjourned to a date yet to be announced. Notices will be sent out, informing the date for the next hearing.

In a statement issued yesterday, however, the Society Against Sexual Orientation Discrimination (Sasod) said the Court of Appeal is expected to set a date for judgement in early 2017 after both sides have presented their further written submissions.

It also noted that ever since the case was filed in February, 2010, transgender persons are “overpoliced, underprotected and have suffered physically and mentally because of the vagueness of the cross-dressing law in Guyana.”

Presiding over the appeal are acting Chancellor of the Judiciary Justice Carl Singh, Chief Justice Yonette Edwards-Cummings and Justice Brassington Reynolds.

The appellants are represented by attorneys Miles Fitzpatrick SC, Nigel Hughes, Gino Persaud and Dr Arif Bulkan.

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 ‘attire’ for the purpose of expressing or accentuating his or her personal sexual orientation in public.”

At the time of the criminal trial, then Chief Magistrate Melissa Robertson had told 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.

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