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.