Marking World Day of Social Justice, Transgender citizens, supported by SASOD, move to the courts to challenge Guyana’s law against ‘cross-dressing’

Long misunderstood and seen as legitimate targets for discrimination and abuse, transgender citizens used the occasion of the international commemoration of World Day of Social Justice to file a motion against Guyana’s law criminalizing ‘cross-dressing.’ On Friday, February 19, 2010, the notice of motion was filed before the Supreme Court of Judicature for redress claiming, among other relief, to have section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, Chapter 8:02, invalidated as irrational, discriminatory, undemocratic, contrary to the rule of law and unconstitutional. The law makes an offence of “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.”

February 20, 2010, marks the second annual commemoration of World Day of Social Justice, which recognizes, in the words of United Nations General Assembly Resolution (A/RES/62/10), that “social development and social justice cannot be attained… in the absence of respect for all human rights and fundamental freedoms.” In his message to mark the day, UN Secretary General Ban Ki-moon explained that “social justice is based on the values of fairness, equality, respect for diversity, access to social protection, and the application of human rights in all spheres of life.”

The day was chosen to address an act of social injustice against one of Guyana’s most marginalised social groups which took place last year. Transgender persons refer to people whose gender identity and/or expression differs from the sex they were assigned at birth, including cross-dressers, female or male impersonators, pre-operative, post-operative or non-operative transsexuals. Trans people may define themselves as female-to-male (FtM, assigned a female biological sex at birth but who have a predominantly male gender identity) or male-to-female (MtF, assigned a male biological sex at birth but who have a predominantly female gender identity); others consider themselves as falling outside binary concepts of gender or sex.

In a series of crackdowns last year between February 6 and 7, the Guyana police arrested a number of male-to-female transgender persons (MtF Trans) and charged them for ‘cross-dressing’ under the archaic Colonial section 153(1)(xlvii) statute. Unrepresented and completely unaware of their rights, the defendants were detained in police custody over the week-end and then hustled through the legal system. When they appeared before Chief Magistrate Melissa Robertson on February 9, 2009, they were further ridiculed and told that they are men not women, before being fined by the learned Chief Magistrate. Seon Clarke, also known as Falatama, one of the persons arrested, said: “It was one of the most humiliating experiences of my life. I felt like I was less than human.” The motion also pleads that the Chief Magistrate was improperly influenced by irrelevant considerations, discriminated against the MtF Trans on the basis of religion, and violated a fundamental norm of Guyana as a secular state. Vigorous and wide-ranging calls within and out of Guyana for the repeal of these discriminatory laws which facilitate such injustices have been ignored by the government.

Since then, SASOD has forged partnerships with human rights interests in the local and regional arenas who have been working collectively and consistently on a voluntary basis over the past year to assist this marginalized group to obtain access to justice for the atrocities endured at the instance of the law enforcement authorities. The 2009 ‘cross-dressing’ crackdowns and prosecutions provided clear illustrations of how discriminatory laws are facilitating grave human rights’ abuses, in spite of the existence of an entrenched regime of human rights protection in the Guyana constitution. Leading the research initiatives to support strategic-impact, human-rights litigation in the region, Tracy Robinson of the University of the West Indies Rights Advocacy Project (U-RAP) based at the Cave Hill campus’ law faculty in Barbados described the arrests and prosecutions as “an unfortunate embodiment of the patriarchal use of coercive state power for no clear or rational purpose,” highlighting the need for law reform to ensure social justice and gender equity in Guyana and across the region.

SASOD has mobilized support from local and regional human rights attorneys to provide representation in what amounts to a ground-breaking constitutional case. According to Dr. Arif Bulkan, also of U-RAP and one of Guyanese attorneys involved in the litigation, “unless the wide-ranging constitutional reforms conducted in 2001 and 2003 are to be dismissed as pure window-dressing, then the emphasis placed on non-discrimination during that process should guide the High Court to interpret the expanded equality rights generously in order to protect one of our society’s most marginalised groups.”

Veronica Cenac, a St. Lucian attorney who serves as the human rights focal point on the Caribbean Vulnerable Communities Coalition board of governors, lauded SASOD for spearheading the case. “For way too long, we have allowed abuses against the most affected populations to go unchallenged,” she said, quoting the closing words of the UN Secretary-General’s message: “Lack of social justice anywhere is an affront to us all.”

2009 No. DEMERARA

IN THE HIGH COURT OF THE SUPREME COURT OF JUDCIATURE

CIVIL JURISDICTION

In the matter of the Constitution of the Co-operative Republic of Guyana.

-and-

In the matter of an application by QUINCY McEWAN, SEON CLARKE, JOSEPH FRASER, SEYON PERSAUD and SOCIETY AGAINST SEXUAL ORIENTATION DISCRIMINATION (SASOD) for redress under Article 153 of the Constitution for contravention of the applicants’ fundamental rights guaranteed by Articles 1, 40, 139, 144, 145, 146, 149 and 149D of the Constitution of the Co-operative Republic of Guyana.

BETWEEN:

1. QUINCY McEWAN
2. SEON CLARKE
3. JOSEPH FRASER
4. SEYON PERSAUD
5. SOCIETY AGAINST SEXUAL ORIENTATION DISCRIMINATION – a duly constituted and registered Trust in Guyana by Trust Deed No. 1032 of 2006.

Applicants

-and-

THE ATTORNEY GENERAL

Respondents

ORIGINATING NOTICE OF MOTION

TAKE NOTICE that this Honourable Court will be moved on Monday the 21st day of February, 2010, at 9:00 o’clock in the forenoon or so soon thereafter as Counsel can be heard by MESSRS MILES FITZPATRICK S.C., C.A. NIGEL HUGHES, ARIF BULKAN and GINO PERSAUD, Counsel on behalf of the applicants, for redress under Article 153 of the Constitution of the Republic of Guyana in the following terms:

1. a declaration that the refusal of the police to inform the first to the fourth named applicants of the reason for their arrest on February 6^th and February 7^th, 2009 and subsequent detention constituted a violation of their rights to be so informed as guaranteed by Articles 139(3) and 144(2)(b) of the Constitution of Guyana, for which they are entitled to redress;
2. a declaration that the refusal by the police to permit the first to the fourth named applicants to retain and instruct a legal adviser of their choice upon their arrest and before they were first taken to court violated their rights under article 139(3) of the Constitution, for which they are entitled to redress;
3. a declaration that the conduct proscribed by section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, Chapter 8:02 of the Laws of Guyana, under which the first to the fourth named applicants were subsequently charged, is vague and of uncertain scope, rendering the offence purportedly created thereunder contrary to the Rule of Law and unconstitutional;
4. a declaration that the said offence under s. 153(1)(xlvii) of Chapter 8:02 is irrational, discriminatory, undemocratic and contrary to Articles 1 and 40 of the Constitution;
5. a declaration that the said offence under s. 153(1)(xlvii) of Chapter 8:02 affords different treatment to different persons because of non-conformity to stereotypes based on sex in contravention of the prohibition of discrimination on the grounds of sex and gender contained in Article 149(1) of the Constitution;
6. a declaration that the said offence under s. 153(1)(xlvii) of Chapter 8:02, by authorizing different treatment based on sex stereotypes, contravenes the guarantee of equality before the law in Article 149D of the Constitution;
7. a declaration that the said offence under s. 153(1)(xlvii) of Chapter 8:02, by preventing persons from giving expression to their gender identity and dressing in conformity with their innermost beliefs and orientation, contravenes the guarantee of freedom of expression contained in Article 146 of the Constitution;
8. a declaration that all criminal proceedings against the first to the fourth named applicants arising out of their arrest between February 6^th and 7^th, 2009 based on the allegation of wearing female attire were unconstitutional, null, void and of no legal effect by reason of the contraventions of the Rule of Law and the explicit guarantees contained in Articles 1, 40, 139, 144, 149 and 149D of the Constitution;
9. a declaration that the learned Chief Magistrate, in telling the first to the fourth named applicants in the course of the hearing that they must attend church and give their lives to Christ, was improperly influenced by irrelevant considerations, discriminated against them on the basis of religion, and violated a fundamental norm of the Co-operative Republic of Guyana as a secular State, in contravention of Articles 1, 40, 145 and 149(1) of the Constitution;
10. damages
11. such further or other relief as may be just;
12. costs.

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Attorneys-at-Law for the Applicant

Dated at Georgetown, Demerara,

This 19^th day of February, 2010

AND TAKE NOTICE that this Honourable Court is asked to make

such orders, issue such writs and give such directions as it may consider necessary for the purpose of enforcing the applicants’ fundamental rights guaranteed under the Constitution.

AND TAKE FURTHER NOTICE that the following are the grounds of this application:

1. On Friday the 6^th day of February, 2009 at approximately 8:30 p.m. the first and second named applicants were arrested at the corner of North Road and King Street in Georgetown, Demerara by members of the Police Force then on mobile patrol. At the time, these applicants were merely waiting on a taxi in order to meet up with friends at the D&J Snackette at 67 Leopold and Cross Streets in Werk-en-Rust, Georgetown.

2. Upon their arrest the first and second named applicants were ordered into the police vehicle and taken to the Brickdam police station. They inquired as to the reason for their arrest but the police refused to tell them. At the station they were photographed and then made to undress, after which they were placed in the lock-ups until Monday February 9^th when they were taken to the Georgetown Magistrates’ Court.

3. In the course of the same night, at about 3:30 in the morning of February 7^th, 2009, the third and fourth named applicants along with a third person were arrested out of an incident which arose while they were eating at the K&VC Snackette in Stabroek Market, Georgetown. At the time, these three were dressed in skirts and were wearing wigs, which attracted verbal abuse from onlookers.

4. When the three responded, the said onlookers began to pelt them with bottles and other objects. They attempted to defend themselves, but outnumbered by the hostile crowd they were overpowered and forced to retreat.
5. In the course of running away, the three persons were stopped in the vicinity of Parliament Buildings by members of the Police Force, arrested and taken to Brickdam police station.
6. At the police station the three persons each inquired why they were being detained, but the police refused to answer, instead stating that they were not obliged to answer questions asked by “certain people”. They were all made to undress, in the course of which they were also subjected to full body searches.
7. The three persons asked for medical attention because of the injuries received in the course of the incident at Stabroek Market at the hands of the hostile crowd, but the police denied their request.
8. All four applicants along with the fifth person were detained at Brickdam police station until Monday, February 9th, and they did not learn of the charges against them until they were taken to court, when the Chief Magistrate informed them that they were charged with “loitering” and “wearing female attire” contrary to section 153(1)(xlvii) of Chapter 8:02.
9. The four applicants along with the fifth person all pleaded guilty to the charge of “wearing female attire”, though at the time they were unrepresented and did not fully understand the nature of the proceedings or the applicability of the charge to them.
10. After imposing sentence, the learned Chief Magistrate, Her Worship Ms. Melissa Robertson, told the applicants that they must go to church and should give their lives to Jesus Christ. Her Worship also told the applicants that they are confused about their sexuality and that they are men, not women. Her comments, which we are informed and verily believe to be true, were reported in the newspapers, including the Stabroek News of February 10^th and 15^th, 2009.
11. The remaining charges against the applicants were eventually dismissed for want of prosecution.

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Attorneys-at-Law for the Applicant

Dated at Georgetown, Demerara,

This 19th day of February, 2010

AND TAKE FURTHER NOTICE that the applicant intends to use the affidavits of the Applicants filed in support of this Originating Notice of Motion and such other affidavits and/or viva voce evidence as Counsel may advise.

THIS ORIGINATING NOTICE OF MOTION is issued by MESSRS MILES FITZPATRICK S.C., NIGEL HUGHES, ARIF BULKAN and GINO PERSAUD whose address for service and place of business is at the Chambers of

De Caires, Fitzpatrick and Karran, 80 Cowan Street, Kingston, Georgetown, Demerara, Attorneys-at-Law for the Applicant.

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Attorneys-at-Law for the Applicant

Dated at Georgetown, Demerara,

This 19th day of February, 2010

2010 No. DEMERARA

IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE

CIVIL JURISDICTION

In the matter of the Constitution of the Republic of Guyana.

-and-

In the matter of an application by QUINCY McEWAN, SEON CLARKE, JOSEPH FRASER, SEYON PERSAUD and SOCIETY AGAINST SEXUAL ORIENTATION DISCRIMINATION (SASOD) for redress under Article 153 of the Constitution for contravention of the applicants’ fundamental rights guaranteed by Articles 1, 40, 139, 144, 145, 146, 149 and 149D of the Constitution of the Co-operative Republic of Guyana.

BETWEEN:

1. QUINCY McEWAN
2. SEON CLARKE
3. JOSEPH FRASER
4. SEYON PERSAUD
5. SOCIETY AGAINST SEXUAL ORIENTATION DISCRIMINATION – a duly constituted and registered Trust in Guyana by Trust Deed No. 1032 of 2006.

Applicants

-and-

THE ATTORNEY GENERAL

Respondent

AFFIDAVIT IN SUPPORT OF MOTION

I, Joel Simpson, of ……………………………………………………………………………, being duly sworn, make oath and say as follows:

1. I am the agent of the fifth-named applicant herein and am authorised to swear this Affidavit on its behalf.

2. The Society Against Sexual Orientation Discrimination (hereinafter referred to as ‘SASOD’) is a Trust, duly constituted and registered in Guyana by Trust Deed No. 1032 of 2006, and whose registered office is at 180 Charlotte Street, Lacytown, Georgetown.

3. SASOD is a non-profit organisation whose registered objects are to advocate for the human rights of all persons in accordance with the Universal Declaration of Human Rights, to encourage acceptance of diversity in a plural society, and to work towards the elimination of discrimination particularly on the grounds of sexual orientation and identity as well as gender identity and expression.

4. The first to the fourth named Applicants herein were variously arrested between February 6^th and February 7^th, 2009, though at no time were they informed by any officer of the charge for which they were arrested, after which they were taken to Brickdam Police Station and detained without charge until February 9^th, 2009.

5. On Monday the 9^th February 2009 the first to the fourth named applicants were taken to the Georgetown Magistrate’s Court along with one Anthony Bess who had also been arrested with them, where they were all charged (inter alia) with ‘wearing female attire’ contrary to section 153(xlvii) of the Summary Jurisdiction (Offences) Act, Chapter 8:02 of the Laws of Guyana.

6. The said applicants, who were all unrepresented, pleaded guilty to the charge of ‘wearing female attire’ and were fined the sum of $7,500.00. In the course of the arraignment they were told by the Chief Magistrate Madame Melissa Robertson that they are confused about their sexuality in that they are men and not women, and that they must go to church and give their lives to Jesus Christ.

7. On 13^th February, 2009 the first to fourth named Applicants came into the registered office of the fifth named Applicant where I interviewed and took statements from them as related above.

8. SASOD has been advised by its Attorneys-at-Law Messrs. Miles Greeves Fitzpatrick S.C., C.A. Nigel Huges, Arif Bulkan and Gino Peter Persaud and verily believes that the refusal of the police to inform the first to the fourth named applicants of the reason for their arrest and detention was contrary to article 139(3) of the Constitution and accordingly unlawful.

9. SASOD has been further advised by its Attorneys-at-Law herein and verily believes that by instructing them to attend church and give their lives to Jesus Christ the Chief Magistrate discriminated against them on the basis of religion, and violated a fundamental norm of the Co-operative Republic of Guyana as a secular State, in contravention of Articles 1, 40, 145 and 149(1) of the Constitution.

10. Because the first to the fourth named applicants are transgendered persons who are accordingly compelled to dress in the manner of the gender with which they identify, there exists an ever-present danger of them being arrested and charged in the future under the same section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act. In these circumstances SASOD has been advised by its Attorneys-at-Law herein and verily believes that the provisions of this offence pose a continuing threat to the Applicants’ right to be protected from discrimination on the ground of sex and gender under article 149 of the Constitution of Guyana, as well as their right to equality before the law and equal protection and benefit of the law under article 149D and their right to freedom of expression under article 146 of the said Constitution. SASOD is further advised by its Attorneys-at-Law herein and verily believes that this likelihood renders the said offence unconstitutional, null, void and of no effect.

11. SASOD is further advised by its Attorneys-at-Law herein and verily believes that section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, Chapter 8:02 of the Laws of Guyana is vague and of uncertain scope as well as irrational and discriminatory on the ground of sex, rendering it a violation of articles 1, 40, 149 and 149D of the Constitution and thereby null, void and of no effect.

12. In the premises I respectfully pray that this Honourable Court would be pleased to grant the orders as prayed for in the Notice of Motion filed herein.

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Joel Simpson

Sworn to at Georgetown, Demerara,

This 19th day of February, 2010

BEFORE ME

A COMMISSIONER OF OATHS TO AFFIDAVITS