I knew an elderly man who was not in agreement with women and girls wearing pants. A teenager at the time, I used to be fearful about him seeing me when I was dressed in pants even when I was not on the premises of the religious institution where most of the admonishment occurred.
He based his criticisms on Deuteronomy 22:5: “The woman shall not wear that which pertaineth unto a man, neither shall a man put on a woman’s garment: for all that do so are abomination unto the Lord thy God.”
After a while, in the spirit of rebellion, I wore pants with little thought as to what the elder or other persons thought or said about it. I reject any attempt by individuals, state or religion to control one’s freedom. And no one should stay silent if any system encroaches on their fundamental rights.
The Summary Jurisdiction (Offences) Act Chapter 8:02, which dates back to 1893, states at Section 153(1)(xlvii) that a fine of not less than $7,500 or more than $15,000 shall be imposed on every person who “being a man, in any public way or public place, for any improper purpose, appears in female attire; or being a woman, in any public way or public place, for any improper purpose, appears in male attire.”
There is no definition about what an “improper purpose” is. The ambiguity of this law is enough reason for it to be removed from our laws. Those who possess the power can use that law to oppress others with any given reason as to what “improper” is. And I am quite sure those who have been affected can attest to this.
The persecuted and prosecuted
But who are the people who have been persecuted and prosecuted in recent times because of this law? The evidence tells us that it is members of the Lesbian, Gay, Bisexual and Transgender (LGBT) community.
It can be assumed that this law may have been inspired by what is written in the Bible, as quoted above, since Guyana was still a colony of England at the time it was written. Many nations were enslaved and colonized, and that also meant Christianization. With newly emancipated Africans and Indentured Servants, the laws were no doubt an attempt to maintain control over them. Today, 52 years after Independence, we are still abiding by laws invented during colonialism.
Law in effect
Seven persons spent a weekend in jail in February of 2009 because they were found to be in violation of the 1893 law. The seven persons were eventually charged and fined $7,500 each, not before being told by a magistrate that they were confused about their sexuality. Four of them, who are transgender women–Gulliver (Quincy) McEwan, Angel (Seon) Clarke, Peaches (Joseph) Fraser and Isabella (Seyon) Persaud—brought a constitutional claim that the law was inconsistent with Guyana’s 1980 Constitution.
Former acting Chief Justice Ian Chang, SC, subsequently found that, “It is instructive to note that 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. 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 was argued that the 1893 law is very vague and that a person with ordinary intelligence could be at a disadvantage because they might not be able to fully comprehend what is prohibited; the law violates the right to freedom of expression and constitutional guarantee of equality before the law and non-discrimination.
It should be noted that in the Summary Jurisdiction (Offences) Act, the following are also prohibited:
If a person:
(xi) in any public way or public place in any town, beats or shakes any mat between seven o’clock in the morning and six o’clock in the afternoon.
(xxix) in any public way flies any kite or plays at any game; or
(xxx) flies any kite within the City of Georgetown or at any place situate east of the Demerara River and within one mile of the boundaries of the said City.
The grooming of animals in a public place, the placing of goods in a public way, loitering around a shop and hauling timber in a public way are also criminal offences under this law. Many would find these laws ridiculous and laughable at this point in time. But there is nothing amusing when the lives of people are affected, especially when it is a small section of an already oppressed group that suffers.
Members of the LGBT community not only suffer under the law that speaks to crossdressing, but they are also often harassed for loitering, they are threatened with arrests without being charged, they are not told what the charges are when they are arrested, they are violated during detention and they are convicted for various minor offences.
It is no secret that many Guyanese reject and abhor the LGBT community. And much of this rejection and hate exists because of religion, misunderstanding and fear. Some argue that the LGBT population is destroying the ‘moral fabric’ of society.
It is troubling when people are seen as outcasts for living their truth. And when one talks about the “moral fabric” of society, don’t we have very real social issues that have been destroying our society? These include the many fathers who reject their children, the men who murder their partners, incest and armed robberies. Why is there silence about the prevalence of child abuse? Aren’t those offenders found in every section of our society? Where is the constant outrage about that?
The decision was made to uphold the law by the High Court in 2013 and the Appeal Court in 2017 even though it was stated that cross-dressing itself is not a crime. One reason given by both courts for their decision is that the 1893 colonial law enjoys the protection of the Constitution’s Savings Law clause. The Savings Law clause limits constitutional challenges to laws that existed before the date the 1980 Constitution came into effect.
The case was recently heard by the Caribbean Court of Justice and a decision is expected in the next few months. Members of the LGBT community are hopeful that the law will be expunged.
Freedom is being your authentic self without fear of persecution, prosecution or condemnation. Freedom is respecting each other even though there may be disagreements, misunderstandings or disapproval. Freedom is using our power to correct mistakes from the past.
As a teen, I was scolded because of biblical scripture for simply choosing to sometimes wear pants. Now, I do not have to live with the fear of reproach because I no longer comply with rules and laws of that religion. And while I am not a member of the oppressed group who is affected by the 1893 law, I think laws that affect one’s freedom of expression have no place in a progressive nation. Are we really a progressive nation though?