Equality before the Law for All

Twinkle, Transgender Activist & Member of GTU

March 31, 2016 (Georgetown, Guyana) Transgender persons in Guyana face grave levels of discrimination, harassment and humiliation and social exclusion in their daily lives. On Transgender Day of Visibility, the Guyana Trans United (GTU), Society Against Sexual Orientation Discrimination (SASOD) and the UWI Faculty of Law Rights Advocacy Project (U-RAP) call attention to the fundamental principle affirmed in the Universal Declaration of Human Rights that ‘all human beings are born free and equal in dignity and rights’.

It is the duty of judges to respect a person’s gender identity, consistent with the Constitution of Guyana which guarantees that ‘the State shall not deny to any person equality before the law or equal protection and benefit of the law’, universal principles of equality and non-discrimination under international law and regional and international standards of judicial conduct.

During the course of March 2016, in at least three separate incidents in the Magistrates Courts, transgender women have been prohibited by sitting Magistrates from attending court or appearing before the court in matters that relate to them because they have been dressed as women.

In one instance, Magistrate Dylon Bess in Georgetown alluded to section 153(xlvii) of the Summary Jurisdiction (Offences) Act which makes it an offence for any person who, ‘being a man in any public place or way, for an improper purpose, appears in female attire’. Magistrate Bess said that the law had not changed and that the defendant would not be permitted to be remain in his courtroom to answer the charges dressed as a woman.

Contrary to the Magistrate Bess’ assertions, the laws of Guyana do not prohibit a trans woman from attending court dressed as a woman. This was explicitly confirmed by the then Honourable Chief Justice, Mr. Justice Chang, in his 2013 decision in the challenge to the constitutionality of section 153(xlvii), the case of McEwan and others v The Attorney General. Individual members of GTU and SASOD as an organisation are the applicants in that case which has been appealed and is awaiting a date for a hearing before the Court of Appeal.

Specifically, Chang C.J. (A.G.) held (at page 26 of his judgment) that:

“It is instructive to note that it is not a criminal offence for a male to wear female attire and for a female to wear male attire in a public way or place under section 153(1)(xlvii). It is only if such an act is done for an improper purpose that criminal liability attaches. Therefore, 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.”

Justice Chang reinforced this holding by continuing strongly: “Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act therefore does not proscribe trans-gender dressing per se (where such conduct is not for an improper purpose).”

Even though the term ‘improper purpose’ is not very clear, attending court could hardly qualify as an improper purpose, and there is no basis for the refusal of Magistrates to allow trans women to attend court dressed as women. Indeed, during the hearing of McEwan motion, the Chief Justice remarked in open court that attending court would not qualify as an improper purpose.

Moreover, the conduct of these Magistrates is in clear violation of the Code of Judicial Conduct of Guyana’s final court of appeal, the Caribbean Court of Justice. That Code upholds regional and international standards related to equality of treatment.

The CCJ’s Code of Judicial Conduct provides that ‘Ensuring equality of treatment to all before the courts is an indispensable precept that governs the due discharge of the duties of judicial office.’ More specifically, Code 5.1. provides that ‘A judge shall strive to be aware of, and to understand, diversity in society and differences arising from various sources, including but not limited to race, colour, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes (“irrelevant grounds”).

The Magistrates also fall afoul of Code 5.2. which provides ‘A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds.’

No law prohibits transgender women from appearing in court to answer charges or attend court dressed as women. The repeated refusal of magistrates to allow trans- women to appear in court consistent with their gender identity undermines their dignity and guaranteed rights to non-discrimination and equality before the law. GTU, SASOD and U-RAP call on the Magistracy to ensure that trans persons have equal access to justice and to the Courts of Guyana and intend to provide further details on the various incidents to the Chancellor and Chief Magistrate, calling for their intervention.