A historic decision: The Caribbean Court of Justice and the cross-dressing case

Alissa Trotz is Editor of the In The Diaspora Column

On Tuesday 13th November 2018, the Caribbean Court of Justice (CCJ), Guyana’s final court of appeal, struck down a law that was first passed in Guyana in 1893. Known popularly as the ‘cross-dressing’ law, section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, it prohibited conduct of being a man, in a public place, appearing in female clothing for an improper purpose, and the same for a woman in male clothing. It was the only prohibition of its kind in the Caribbean, and its history and impact tell a useful (and interesting) story. This week, the column focuses on what the CCJ judges actually said about the law and why they struck it down as invalid.

The roots of the case go all the way to 2009. Quincy McEwan, Seon Clarke, Joseph Fraser and Seyon Persaud along with three others, all persons who were assigned male at birth but who identify as female, were attired in female clothing in Georgetown when in two separate instances they were arrested by the police, taken to the police lock-ups, detained over a weekend. They were charged under the cross-dressing law along with various other offences. When they were eventually taken to court three days later, they each pleaded guilty to this offence and were fined. After imposing sentence, the Magistrate told them that they were confused about their sexuality and that they were men not women. The Magistrate added that they should go to church and give their lives to Jesus Christ. The remaining charges (such as loitering) were subsequently dismissed.

These charges were reported and came to the attention of Tracy Robinson and Arif Bulkan, two law teachers at the University of the West Indies who both taught Caribbean Human Rights Law at the Cave Hill campus in Barbados. Robinson and Bulkan at that time had just founded, along with a third colleague Douglas Mendes, the UWI Rights Advocacy Project (U-RAP), with the aim of working towards social justice and human rights in the Caribbean through litigation and advocacy. When news of the arrests of the McEwan and others broke, they were at the time doing the preliminary work in preparation for a constitutional challenge in Belize.  The McEwan arrests raised glaring issues of discrimination and abuse of police authority, and through SASOD they reached out to the litigants to inquire whether they would be interested in challenging the constitutionality of the law. The rationale was that even though those arrests were over, with the law in existence and being utilized, there was nothing to prevent the police from charging both those seven persons and others, night after night, for the way they were dressed in public. McEwan and the other three named agreed readily, and along with the Society against Sexual Orientation Discrimination (SASOD), the constitutional challenge was filed in 2010. 

The crux of the claim was that the challenged section, which criminalised dress in the way described above, was vaguely worded and thus a violation of the rule of law, and secondly that it contravened the rights of equality and freedom of expression. The litigants also complained that the remarks of the Magistrate were improper and infringed their rights to fair treatment and amounted to breaches of their freedom of religion. The case was argued by Arif Bulkan in the High Court and Court of Appeal; and by Douglas Mendes SC (the other U-RAP co-founder) in the CCJ, because by that time Bulkan was sitting as Judge in the Guyana Court of Appeal. The case was argued on behalf of the State by Kamal Ramkarran.

The action was dismissed both in the High Court and the Court of Appeal. In September 2013 the acting Chief Justice (CJ) Chang held that the section did not make cross-dressing per se unlawful, and that it was permissible for persons to dress so as to reflect their gender identity or sexual orientation. What made such dress unlawful was doing so for an ‘improper purpose’. The CJ rejected the submission that this term was unconstitutionally vague, declaring that its meaning could be ascertained on a case by case basis. The appeal brought by the four persons was dismissed by the Court of Appeal in February 2017. In agreeing with the CJ, the court of appeal held that the law was not vague or useless, nor was it discriminatory. The acting Chancellor gave an example of its use against persons who dress in the clothing of the opposite sex to rob unsuspecting others. Moreover, since both the High Court and Court of Appeal felt that cross-dressing per se was not prohibited, they held that there was no violation of equality or freedom of expression. As for the Magistrate’s comments, the CJ held that at worst she was merely proselytizing and that there was nothing inappropriate in so doing.

The CCJ unanimously upheld the appeal and invalidated the law. All five judges (Saunders P, Wit, Anderson, Rajnauth-Lee and Barrow JJCCJ) agreed that the challenged section was unconstitutionally vague because it failed to meet the minimum objectives of certainty and fair notice required of criminal statutes. Such vagueness lent itself to discriminatory enforcement by the police and magistrates. The CCJ rejected the submission on behalf of the State that details of what conduct constituted a criminal purpose could be given by Magistrates at the time of trial, holding that individuals must be given prospective notice of prohibited conduct to allow them to regulate their behaviour and avoid getting into trouble in the first place.

In a separate judgment, Justice Anderson elaborated that since the State had argued that cross-dressing by itself is entirely innocuous, causing no harm or involving no deception, the essence of the crime lay wholly in the state of mind of the person charged, namely, the existence of some ‘improper purpose’. This, he said, could not be done. To criminalise merely an intention or purpose was an unconstitutional extension of the criminal law. As to the example given by the acting Chancellor in the court of appeal, that the section could be useful to apprehend men who conceal themselves as women in order to rob taxi drivers, Anderson J said that in such a case the correct approach would be to punish the cross-dresser for the actual crime of robbery or attempted robbery, and not merely for having the ‘improper purpose’ of committing the robbery. Further, Anderson J cautioned, ‘if an individual cross-dressed and possessed the intention as hypothesized by the Chancellor but repents of this intention and abandoned the enterprise whilst standing on the road awaiting the approach of the taxi it would seem inappropriate and indeed impermissible to punish the mere existence of a wrongful intention abandoned before undertaking an act sufficiently proximate to constitute an attempt to commit the offence.’

Three of the judges (Saunders P, Wit and Barrow JJ) went further and in a joint judgment held the challenged section to be unconstitutional on the basis of infringing the rights to equality and freedom of expression enshrined in the Guyana Constitution. In a breath-taking judgment, demonstrating not just impressive scholarship but also an unprecedented empathy and sensitivity, Saunders P began by acknowledging the ubiquity of difference in the natural world. This, he said, meant that ‘Civilised society has a duty to accommodate suitably differences among human beings. Only in this manner can we give due respect to everyone’s humanity.’ Noting how the appellants’ own personal differences rendered them vulnerable to societies’ prejudices and harm, he insisted that it was for the courts to afford them the protection of the law.

Saunders further described the principle of equality as being premised at its core on the inherent dignity of all human beings and their entitlement to personal autonomy. By choosing to dress in clothing and accessories traditionally associated with women, the first four appellants were in effect expressing their identification with the female gender, which forms a fundamental part of their right to dignity, which therefore necessitated constitutional protection. Saunders P insisted that a society which promotes respect for human rights is one which supports human development and the realisation of the full potential of every individual. However, such goals were undermined by the cross-dressing prohibition, which disproportionately exposed LGBTI persons to the risk of discriminatory treatment in many aspects of their daily lives, including employment, public accommodation, and access to State services.

The majority judgment authored by Saunders P also noted the integral role of free expression to democracy and in achieving progress. He added: ‘No one should have to live under the constant threat that, at any moment, for an unconventional form of expression that poses no risk to society, s/he may suffer such treatment. But that is the threat that exists in section 153(1)(xlvii). It is a threat particularly aimed at persons of the LGBTI community. The section is easily utilised as a convenient tool to justify the harassment of such persons. Such harassment encourages the humiliation, hate crimes, and other forms of violence persons of the LGBTI community experience. This is at complete variance with the aspirations and values laid out in the Guyana Constitution…’

Finally, in keeping with this sensitivity to the vulnerability faced by LGBTI persons, Saunders P had strong words for the remarks made by the Magistrate after she had sentenced the appellants and too for the HC and CA which excused them. These remarks, he said, may well have led the first four appellants to the belief that they did not receive a fair hearing by an impartial tribunal, as required by Article 144 of the Constitution. Saunders P explained, ‘Judicial officers may not use the bench to proselytise, whether before, during or after the conclusion of court proceedings.  Secularism is one of the cornerstones upon which the Republic of Guyana rests.  But these remarks went beyond proselytising. They revealed stereotypical thinking about transgendered persons.  It is not possible to know whether the 1st – 4th named appellants would have been dealt with differently by a Magistrate with impartial views about persons of the LGBTI community.  On the charge being read, a more informed Magistrate may have, for example, rejected the guilty pleas and stated a case for the Constitutional court; or, recorded a conviction but discharged the 1st – 4th named appellants; or taken some other step short of the punishment which was actually recorded against the 1st – 4th named appellants.’

In his opening remarks before the CCJ, Justice Saunders laid out what we described as the “simple verities on which this case is premised”: “Difference is as natural as breathing. Infinite varieties exist of everything under the sun. Civilised society has a duty to accommodate suitably differences among human beings. Only in this manner can we give due respect to everyone’s humanity. No one should have his or her dignity trampled upon, or human rights denied, merely on account of a difference, especially one that poses no threat to public safety or public order.” This was a landmark ruling, one that has far-reaching implications; as Trinidadian activist Colin Robinson noted in a commentary in Trinidad and Tobago Newsday, “It’s a ricocheting decision about justice for the Caribbean small-man, brought to him by four courageous transwomen. And a Caribbean court.” Indeed. All respect to Gulliver (Quincy) McEwan, Angel (Seon) Clarke, Pheches (Joseph) Fraser and Isabella (Seyon) Persaud and the three others who were litigants in this historic case.

In a follow-up column, we will take a broader look at what this decision means for Caribbean people and our struggle for social justice and equality.

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