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.
Six
years ago on February 19, 2010 – on the eve of the United Nations’
World Day of Social Justice - four transgender persons who were
prosecuted the year before in February 2009 and SASOD filed a
constitutional challenge to the laws against cross-dressing. This was
the first case in the English-speaking Caribbean to challenge
discriminatory laws against sexual and gender minorities.
On
September 6, 2013, Acting Chief Justice Ian Chang, sitting as the
constitutional court, delivered his judgment in McEwan and others versus
the Attorney General ruling that cross-dressing in a public place is an
offence only if it is done for an “improper purpose.”
No definition, examples or any type of clarity was given to the term “Improper purpose.”
In
October 2013, the four transgender litigants and SASOD filed an appeal
to Chang’s decision for which they are currently awaiting a date from
the Court of Appeal. The Registrar of the Court of Appeal has recently
notified litigants to pay filing fees.
The
first-named litigant and Executive Director of Guyana Trans United,
Quincy McEwan (popularly known as Gulliver) sat on a panel along with
Managing Director of SASOD, Joel Simpson, and Attorney-at-Law Wanda
Fortune of the Guyana Legal Aid Clinic to discuss the legal groundings
of the case, cross-dressing and the social impact to the LGBT community.
Social Impacts of “Improper Purpose”
According
to Simpson, transgender persons who cross-dress as an expression of
their gender are particularly affected. He described the law as
out-dated, ridiculous and stuck in a time warp of nineteenth-century,
colonial rule. Nigeria and Malaysia are the only other countries in the
world that outlaw cross-dressing, and these bans are found in their
Sharia law, under Islamic theocracies. Guyana is supposed to be a
secular state not dictated by any particular religion in state policies
with constitutional protections of the fundamental rights and freedoms
of all citizens, without exception.
“There
has been a failure of political leadership, especially the legislative
arm of government. People are still being charged for cross-dressing. It
is one thing to have these antiquated laws still on the books, but it’s
another thing when the state itself is actively enforcing these laws.
Police are making arrests with these laws and the magistracy is
sentencing with them,” Simpson pointed out.
Quincy
McEwan expressed that some transgender persons are afraid to step out,
knowing that the law is on the wrong side of the gate for them. McEwan, a
transgender woman herself, noted that people should be free to live
their lives, they should feel comfortable on the streets but police are
constantly “picking trouble” and even when people from the public throw
insults, harass and even threaten transgender persons, the police give
no sense of protection for them.
McEwan
called for strength and bravery in the transgender community. “Some of
we does still come out. It’s we life. We got work to do and things to
do,” she said.
Section of the participants
The Law and Society
Simpson
called for judicial intelligence in finding that dubious “improper
purpose” clause undermines the rule of law. “These are old, archaic laws
written in the sixteenth and seventieth century – there is no place for
them in our society and time. The world has progressed and moved beyond
institutional bigotry and prejudice,” he remarked.
Attorney-At-Law
Wanda Fortune opined that the law against cross-dressing needs to be
tackled at the legislative level. “The law is the law” she posited,
stating that once passed and on the books, then it must be applied. It
is the police, according to Fortune, that first have to decide what the
“improper purpose” is. She also shared that if the transgender persons
had pleaded “not guilty,” then the court would have had to consider if
their actions were improper or not. “It is unfortunate and a
disadvantage that they [the litigants] pleaded “not guilty.” This would
have paved the way for the court to actually make a judgement and
clarify what “improper purpose” means,” Fortune added.
Simpson
interjected, noting that with fear, physical and psychological abuse
and lack of legal representation, the transgender litigants opted for
what seemed like the fastest way out of this unwarranted conflict with
the law. “The police denied them a phone call, a right as basic as that.
If they couldn’t call their families and friends to tell them, how
could they call a lawyer?” Simpson questioned.
Again
Fortune called for a systematic approach to these issues, noting that
the police themselves need support with basic principles and guidelines.
Simpson agreed that it’s a matter of all stakeholders, including the
Guyana Police Force, Parliament and the local transgender community.
“It’s ridiculous. I can’t emphasise this enough. Simple acts that harm
no one like flying a kite near the seawalls, dusting a map in public
before 6 am and after 6pm, rollerblading on certain public streets are
against the law in Guyana, along with cross-dressing. Do the police also
arrest people around Easter and if they’re sweeping their cleaning in
their yards before sunrise or after sunset? Or are we only enforcing the
cross-dressing because the legal system is transphobic? These
antiquated, colonial-era laws need to go. They’re not set in stone. It
would take very simple repeal bills to take these laws of our books,” he
said.
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