Joint Media Release from the
Society Against Sexual Orientation Discrimination (SASOD), Guyana Trans United
(GTU), Caribbean Vulnerable Communities Coalition (CVC), Caribbean Forum for
Liberation and Acceptance of Genders and Sexualities (CariFLAGS) and the
Faculty of Law University of the West Indies Rights Advocacy Project (U-RAP)
Constitutional
Court Rules Cross-Dressing is Not a Crime if Not for “Improper Purpose”
- Rights Groups Plan Appeal on Dubious
Decision
Georgetown, Guyana
On Friday afternoon, September 6,
2013, the Honourable Chief Justice (Ag.), Mr. Ian Chang delivered his judgment
in Quincy McEwan, Seon Clarke, Joseph
Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination
(SASOD) vs. Attorney General of Guyana.
Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) provision makes a
criminal offence of a man wearing female attire, and a woman wearing male
attire, publicly, for any improper purpose. The Chief Justice said that cross-dressing
in a public place is an offence only if it is done for an improper purpose.
The Chief Justice also found that
the police violated the human rights of the four litigants in the case during
their crackdown in February 2009 when they arrested them under section
153(1)(xlvii) of the Summary Jurisdiction (Offences) Act and he awarded each of
the four arrested compensation of $40,000 (GYD) for breach of their rights to
be informed as soon as reasonably practicable as to the reason(s) for their
arrests under Article 139 (3) of the Guyana Constitution.
Chief Justice Chang also decided
that section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act, is
immune from the constitutional challenge brought by the four transgender
litigants and their supporting organisations. As an 1893 law, pre-dating
Guyana’s independence, the Chief Justice said “legislative rather than curial
action is necessary to invalidate the provision.y to invalidate the provision”.” The litigants are
preparing to appeal this and other aspects of Friday’s court decision.
Colin Robinson, manager of the CariFLAGS
secretariat based in Trinidad, praised the court’s finding that “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.” The court also found that the law applies only to “attire” and
not other gendered accoutrements such as head wigs, ear rings or even shoes.
“The learned Chief Justice, however, has confused sexual orientation with
gender identity,” Robinson commented.
Reacting to the judgment, the
first-named applicant, Quincy McEwan, better known as Gulliver, who is also the
Director of Guyana Trans United (GTU), noted that, “The Chief Justice was relatively clear that once you are expressing
your gender identity, it’s not criminal for a man to wear female attire. But
the law really stifles us, because what could be an improper purpose? The trans
community is very worried, and still fearful of arrests, in light of this
decision.” The court did not clarify what improper purposes gave rise to
the arrests in this case.
The Chief Justice was not
convinced the cross-dressing law amounted to ‘discrimination’ on the basis of
gender, which would have been in violation of the Guyana Constitution. The
court also ruled that the prohibition in the 1893 law is against persons of
both genders for the same conduct and, as such, does not amount to
discrimination based on gender. Se-shauna Wheatle is Jamaican and Lecturer in
Law at Exeter College at the University of Oxford and a researcher in the
fields of comparative human rights law and comparative constitutional law. Wheatle,
who is the author of the 2013 report “Adjudication in Homicide Cases involving
Lesbian, Gay, Bisexual and Transgender (LGBT) Persons in the Commonwealth
Caribbean,” said that “The constitutional
moment presented by this case demanded more detailed assessment of the issue of
discrimination against transgender persons.” She observed that “The reasoning of the learned judge omitted
any discussion of the prescription of gender roles to individuals according to
their sex and the consequent requirement that individuals dress according to
those prescribed gender roles. There was no discussion of the way in which the
challenged section reflected such prescription of gender roles or the impact of
this dynamic on persons who are transgender.”
The court also ruled that SASOD
had no locus standi (standing) in the
matter since the individual applicants brought the claim in their own names as
the persons who were personally aggrieved. The Guyana Constitution was the
first in the English-speaking Caribbean to give “an association acting on
behalf of its members” the right to bring a claim before the Constitutional
Court that there has been a breach of the guaranteed fundamental rights. The
standing of SASOD is one of the issues which the litigants expect to argue
before the Court of Appeal.
Similar sentiments were echoed by
Zenita Nicholson, Secretary of SASOD’s board of trustees. “I feel the court lost a golden opportunity to give life to the Guyana
constitution by vitiating this 1893 law against cross-dressing and establishing
that all Guyanese are entitled to fundamental rights and freedoms, including
our transgender citizens, who unfortunately will continue to be vulnerable to
human rights abuses, with this dubious decision. We must appeal it,” she
said.
Dr. Arif Bulkan who argued the
case on behalf of the litigants is a lecturer in constitutional law and human
rights law at the Faculty of Law, UWI, St. Augustine and a coordinator of the
Faculty of Law UWI Rights Advocacy Project (U-RAP), which has managed the
litigation. Dr. Bulkan said that “This
case raises issues of great public and constitutional importance relating to
the scope of the restrictive savings law clauses in the Constitution that limit
challenges to repressive colonial laws and the new provisions in the Guyana
Constitution dealing with equality and non-discrimination. The region is
closely watching this case.” He added that the legal team for the
litigants, which includes Mr. Gino Persaud as instructing counsel, looks
forward to arguing these important human rights concerns before the Court of
Appeal. He said “In the content of our
laws and details of our conduct, we must give meaning to the strong commitment
in the Constitution to eliminate ‘any and every form of discrimination’ in
Guyana.”
The case of McEwan, Clarke, Fraser, Persaud and SASOD v. Attorney General was
initiated four years ago following the February 2009 conviction and fine of
seven individuals for violating section 153 (1) (xlvii) of the Summary
Jurisdiction (Offences) Act. The 1893 law makes it a criminal offence for men
to wear female attire and for women to wear male attire “in any public way or
public place, for any improper purpose.” Other activities criminalised in
section 153(1) are: grooming an animal in a public place; placing goods in a
public way in town; beating a mat in a public way; flying a kite in the city;
loitering around a shop and hauling timber in a public way. Unrepresented and
unaware of their rights, the defendants were detained in police custody over
the weekend, and then hustled through the legal system and fined $7,500 (GYD)
each.
U-RAP co-founder, attorney-at-law
and public law lecturer at the University of the West Indies (UWI), St.
Augustine, Dr. Arif Bulkan explained that this colonial law was part of
repressive penal regimes instituted in the second half of the nineteenth
century throughout the Caribbean to severely constrain the lives and actions of
recent freed Africans and the newly arrived indentured servants. Bulkan notes
that “Despite the discriminatory aspects
of these colonial laws, and their low regard for the majority colonial
populations, vagrancy laws like section 153(1) have been kept in effect long
after independence.”
He adds that "The law is plainly at odds with the Guyana
Constitution which states that it is committed to 'eliminating every form of
discrimination.'”
---
Hon. Mr. Justice Ian Chang – Chief Justice (Ag.) [Photo Credit: Stabroek News]
Notes to editors
SASOD is a local human rights
organization working to promote equality and justice for all Guyanese, and is particularly
focused on eliminating discrimination based on sexuality, gender, sexual
orientation, gender identity and gender expression in Guyana.
GTU is a local transgender group working
to empower the Guyanese trans community, advocate for their human rights and
participate as equal citizens in decisions which affect their lives.
CVC is a regional coalition of
community leaders and non-governmental agencies providing services directly to
and on behalf of vulnerable populations who are marginalised and excluded in
the Caribbean.
CariFLAGS a 16-year-old lesbian,
gay, bisexual, transgender and intersex (LGBTI) Caribbean advocacy network with
offices in Castries, Kingston, Port of Spain and Santo Domingo, and affiliate
organizations across the region.
U-RAP’s objective is to promote
human rights and social justice in the Caribbean by undertaking and
participating in human rights litigation in collaboration with human rights
lawyers and organisations. The team of lawyers involved in this case includes
Gino Persaud, Nigel Hughes and Miles Fitzpatrick, S.C.
Media Spokespersons:
Zenita Nicholson for SASOD: +592
662-8278
Quincy McEwan for GTU: +592
674-8741
Ivan Cruickshank for CVC: +1 876 631-7299
Colin Robinson for CariFLAGS: +1 868
758-7676
