Overturning judgments of the local courts, the Caribbean Court of Justice (CCJ) yesterday ruled in favour of a group of Guyanese transgender women that the law prohibiting cross-dressing violates their freedom of expression and said it should be struck from the laws of Guyana.
Declaring Section 153 (1) (XLVII) of the Summary Jurisdiction (Offences) Act to be unconstitutional, the court said the law was from a different time and no longer served any legitimate purpose in Guyana.
In its action against the state, the appellants—Quincy McEwan, known as Gulliver, Seon Clarke, known as Angel Clarke, Joseph Fraser, also known as Peaches Fraser, and Seyon Persaud, known as Isabella Persaud—had argued that the law discriminated against them.
Their main contention had been that Section 153 (1) (XLVII), which prohibits cross dressing “for an improper purpose,” was so vague that it does not define what constitutes an “improper purpose,” which ultimately leads to uncertainty.
That section 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 of not less than $7,500 or more than $10,000.
In 2010, the appellants were all charged and placed before a city court, where they were fined $10,000 each for wearing female attire for an improper purpose under Section 153 (1) (XLVII).
At the time of her arrest, McEwan had been dressed in a pink shirt and a pair of tights along with a black hair piece, while Clarke wore a jersey and skirt. Meanwhile, Fraser and Persaud, who both wore skirts, each also wore red and black wigs.
Neither of them had been told why they were arrested and detained and they spent an entire weekend in the Brickdam lockup. It was only after being taken to court and arraigned that they found out for the first time that they had been charged with cross-dressing.
Having lost at both the High Court and the Appeal Court, the transgender women appealed to the Trinidad-based court of last resort for Guyana to seek clarity on what constituted an “improper purpose.”
Lower courts wrong
In its ruling, which was read by CCJ President Justice Adrian Saunders, the court held that the law was unconstitutionally vague, violated the appellants’ right to protection of the law and was contrary to the rule of law.
On this point, the court upheld the appeal on the basis that the law resulted in transgendered and gender nonconforming persons being treated unfavourably by criminalising their gender expression and gender identity.
Agreeing with arguments advanced by the appellants, Justices Saunders, Maureen Rajnauth-Lee, Jacob Wit, Denys Barrow and Winston Anderson all held that at the heart to the right of equality and non-discrimination lies a recognition that a fundamental goal of any constitutional democracy is to develop a society in which all citizens are respected and regarded as equal.
Against this background, Justice Saunders referenced Article 149 (1) of Guyana’s Constitution, which provides for protection from discrimination.
That article provides, “subject to the provisions of this article, no law shall make any provision that is discriminatory either of itself or in its effect; and no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.”
The court said the while it is true that cross-dressing is practised by persons of several types of sexual orientation, the law had a disproportionately adverse impact on transgender persons, “particularly those who identify with the female gender.”
Justice Saunders said that it infringes on their personal autonomy, which includes both the negative rights to not be subjected to unjustifiable interference by others, and the positive rights to make decisions about one’s life.
“The lower courts are therefore wrong to hold otherwise,” the judge said.
First, examining the historical context surrounding Section 153, which was enacted in Guyana in 1893, as part of the vagrancy laws of post-emancipation, Justice Saunders said that that law was from a different time and no longer served any legitimate purpose in Guyana.
Justice Saunders said that law and society are dynamic, not static, and that a constitution must be read as a whole. Courts, he said, should be wise to avoid hindrances that would deter it from interpreting the constitution in a manner faithful to its essence and its underlying spirit.
According to the judge, if one part of the constitution appears to “run up” against an individual fundamental right, then, in interpreting the constitution as a whole, courts should place a premium on affording the citizen his/her enjoyment of the fundamental right, unless there is some overriding public interest.”
He noted, too, that Guyana’s Constitution protects its people from discrimination and states that no one is to be treated in a discriminatory manner by any public office or authority.
Freedom of expression
In a unanimous decision in February of last year, then acting Chancellor of the Judiciary Justice Carl Singh, then acting Chief Justice Yonette Cummings-Edwards and Justice Brassington Reynolds upheld the ruling of former acting Chief Justice Ian Chang that both men and women were free to cross-dress in public once the reason for doing so is not an “improper purpose.”
Chancellor Singh had noted in the Appeal Court’s ruling that it was not for the court to attempt a definition of a broad term. He stressed that in each case, it is for the magistrate to decide, on a case-by-case basis, based on the facts before him or her, whether a man wearing female clothing was for “an improper purpose,” and vice versa.
He had emphasised further that the term was used broadly and can apply to an infinite variety of circumstances, but that it does not create such a level of vagueness that a court cannot decide on a case-by-case basis.
The CCJ, in its unanimous judgment, however, found that Section 153 infringed the appellants’ right to freedom of expression guaranteed under Article 146 of the Constitution.
The court then went on to reason that a person’s choice of attire is inextricably bound up with the expression of his or her gender identity, autonomy or individual liberty. That choice, the court further reasoned, is an expressive statement protected by under the right to freedom of expression.
The judge said that 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, he or she may suffer such treatment.
The separate opinions of Justice Anderson, which were read and highlighted by the President of the Court, noted that the appeals must be allowed because, in purporting to criminalise the act of cross-dressing for an improper purpose, Section 153 is an unconstitutional extension of criminal liability.
The court heard that he agreed that the purported offence was impermissibly vague and that the section confers unacceptably broad discretion on state officials to arrest and charge at will.
Meanwhile, in her consideration of the issue of vagueness, the court heard from Justice Rajnauth-Lee’s separate judgment that criminal statutes which are vaguely drawn are inconsistent with the right to protection of the law. The court noted that penal statutes must provide fair notice to citizens of the prohibited conduct, must not be vaguely worded and must be define the criminal offence with sufficient clarity that ordinary people can understand and should not be stated in ways that allow law enforcement officials to use subjective moral or value judgments as a basis for enforcement.
Justice Barrow, in his separate opinion, stated that the law in Section 153 belongs to “a different time,” and that the offences created in the Act were in tune with laws of the Victorian era, which were intended to keep the dispossessed and depressed under control.
According to the court, the objective of such laws was not to promote fairness, social justice or equality. It said that the specific offence targeted homosexual conduct and Justice Barrow addressed the state’s argument that the judiciary should be cautious not to succumb to deciding on issues of social policy and legislative reform.
He stated that it is not every law that the executive must feel obliged to defend, especially where the constitution affords aggrieved persons the right to make those challenges, while noting that government must acknowledge on its own accord when a law, such as Section 153, has long passed its expiry date and serves no social or legal purpose.
Allowing the appeal, the CCJ declared that Section 153 violated the appellants’ right to equality and non-discrimination and to their right to freedom of expression. Holding the section as being unconstitutionally vague, the court said it also offended the rule of law.
As a result, the court ordered that the section be struck from the laws of Guyana.
The appellants were awarded costs in the appeal as well as the courts below.
While Senior Counsel Douglas Mendes for the appellants had argued before the CCJ that the cross-dressing law violated constitutional provisions of equality and rights to freedom of expression, attorney Kamal Ramkarran for the state had strongly contested that the “improper purpose” term by its very nature was not capable of definition and must remain broad.
He argued that it is within every adjudicator of the court to decipher “in the specific context, what was for an improper purpose.”
Mendes had argued vehemently that while it is no offence for a man to dress in a different (female) attire once it is not for an improper purpose, and vice versa, the law seems to target men, especially the category to which his clients subscribe and identify themselves. He noted there has never been charges instituted against women who dress like men.
He had said that the absence of clearly defined boundaries and guidelines of the term in question really vests in the police arbitrary powers of arrest, according to subjective standards which that individual police or court may employ regarding what constitutes an improper purpose.
The CCJ also addressed and considered the standing of the Society Against Sexual Orientation Discrimination (SASOD) in the action, which was barred by the lower courts and noted that those courts did not appreciate that SASOD, given its mandate, had a real and genuine interest in the challenged legislation since it could be applied in future to any member of the public including other members of SASOD.
As a result, the court held that courts should adopt a liberal approach in affording standing to individuals and entities.
The CCJ noted further that when litigants appear before the courts, they are entitled to a fair hearing before an impartial tribunal in accordance with Section 144 of the constitution, which caters for provisions to secure protection of the law.
Accordingly, Justice Saunders said that judicial officers must therefore safeguard against any inherent prejudices they may have and not use the bench to express any stereotypical thinking.
The Caribbean Court then turned its attention to remarks made by the magistrate before whom the appellants had been arraigned, calling her statement that the transgender women were confused “inappropriate” and “unacceptable.”
The judge said that secularism is one of the cornerstones on which Guyana rests and therefore the remarks made by the magistrate could not be condoned.
At the time of their arraignment, then Chief Magistrate Melissa Robertson had told the appellants that they were “confused” and should “go to church and give their lives to Christ.”
The appellants had argued that the comments of the magistrate reinforced discriminatory treatment. The lower courts, however, had found otherwise, holding that the comments did not infringe their rights.
In addition to Mendes, the appellants were represented by attorneys Nigel Hughes, Mishka Puran, Isat Buchanan and Clay Hackette.
Meanwhile, the Attorney General of Guyana, against whom the action was brought, was represented by Ramkarran and Solicitor-General Kim Kyte-Thomas, in association with Deputy Solicitor-General Deborah Kumar and Coleen Liverpool.