Guyana’s Court of Appeal is expected to hear the case McEwan, Clarke, Fraser, Persaud and SASOD versus Attorney General of Guyana on Wednesday, July 13, 2016 at 9:00 AM at the Court of Appeal, 60 High Street, Kingston. The Chancellor of the Judiciary, the Hon. Justice Carl Singh, is expected to preside over the hearing with a panel of appellate judges.
The case was filed in February 2010, following the widely reported arrests and convictions of seven transgender persons for the 1893 summary offence of ‘being a man’ and wearing ‘female’ attire in a public way or public place, for an improper purpose. Four of the convicted persons filed this action, along with SASOD who approached the Faculty of Law UWI Rights Advocacy Project (U-RAP) for advice in relation to the arrests. U-RAP proposed a constitutional challenge to the cross-dressing law, working with counsel Gino Persaud, who had already been counsel retained in the criminal matter.The entire legal team includes Mr. Miles Fitzpatrick SC, Mr. Nigel Hughes, Dr. Arif Bulkan, U-RAP Coordinator and Senior Lecturer at the Faculty of Law, UWI, St Augustine, and Mr. Gino Persaud.
After the case was filed, the organisation Guyana Trans United (GTU) was established to ensure respect for the dignity of transgender persons in Guyana and the protection of their human rights. The first named applicant/appellant Quincy (Gulliver) McEwan is a founder and the Executive Director of GTU. That organisation and its members are closely following this case.
first named applicant/appellant Quincy (Gulliver) McEwan is a founder and the Executive Director of GTU
The McEwan case argues that the archaic cross-dressing law, found in section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act 1893, is inconsistent with the Constitution of Guyana. It also argues that the conduct of the Chief Magistrate, who told the individual appellants that they were confused about their sexuality and should follow the teachings of Jesus Christ, also was not consistent with the Guyana Constitution.
Sitting as the Constitutional Court, then Chief Justice, Ian Chang, heard the case and delivered his decision in September 2013. Chang ruled that cross-dressing per se is not a crime, unless done for an “improper purpose.” The four convicted of this crime, who to this day do not know what ‘improper purpose’ was identified in their case, and SASOD appealed this ruling in part because of the inherent certainty in this terminology. With that uncertainty, state officials have virtually unlimited discretion in applying the law. After the ruling, Gulliver McEwan stated, “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 vagaries of this vague language were seen as recently as March, when a magistrate cited the cross-dressing law to explain why he would not allow transgender women to appear in court wearing women’s clothing. Many were puzzled that going to court could be seen as an ‘improper purpose’. Twinkle Kissoon, a transgender woman who had first-hand experience of this treatment from a magistrate, described it as a violation of her human rights and said, “If I respect the magistrate on his bench, I do think the magistrate should also respect me as a human being.” (See news video: https://www.youtube.com/watch?v=9ltKGuD0J18)
In Guyana and elsewhere, transgender persons are overpoliced and underprotected. Caribbean sexualities scholar, Professor Rosamund King of Brooklyn College, in her award winning 2015 book, Island Bodies: Transgressive Sexualities in the Caribbean Imagination confirms the historical discrimination against transgender persons in the Caribbean. She says that “Those who inhabit unconventional genders … are often considered ineligible to be full, legitimate members of Caribbean societies.” Professor King added that “their sexuality is automatically suspect, and since they are far from ideal citizens, too often the state sees no need to treat them as full citizens or to protect them from others’ mistreatment.”
As recently as last year, 2015, the UN Committee on Economic, Social and Cultural Rights evaluated Guyana’s compliance with the International Covenant on Economic Social and Cultural Rights (ICESCR), which is listed as a core human rights treaty in the Guyana Constitution. The Committee expressed concern about the cross-dressing law and recommended its repeal. Joel Simpson, Managing Director of SASOD, described the cross-dressing law as “outdated, ridiculous and stuck in a time warp of 19th century, colonial rule.”
The lawyers for four individual appellants, McEwan, Clarke, Fraser, Persaud and SASOD will present arguments on Wednesday July 13 that the savings law clause in the Constitution is not an impediment to the Court of Appeal’s resolution of the case. Although the Constitution does give some immunity to some colonial laws, making it difficult to argue that they violate the fundamental rights in the Constitution, the lawyers for the appellants will argue that this particular 1893 law does not fall within the ambit of the savings law clause. “On this point alone, the proper interpretation of the very restrictive savings law clause, this case could have ground-breaking significance throughout the Caribbean,” said Dr. Arif Bulkan, one of the lawyers in the case and co-author of the 2015 Sweet and Maxwell text, Fundamentals of Caribbean Constitutional Law.
Dr. Arif Bulkan, U-RAP Coordinator and Senior Lecturer at the Faculty of Law, UWI, St Augustine
The appellants will also present arguments to demonstrate that the cross-dressing law is “hopelessly vague” and, as a result, does not meet the constitutional requirement associated with the rule of law. It is a well-established principle that if law is to rule, it must be certain and ordinary citizens, as well as state officials, must know precisely what is being prohibited. The appellants will also argue that the cross-dressing law is inconsistent with the guarantee made in the Guyana Constitution that all persons are equal before the law and entitled to the equal protection and benefit of the law. Dr. Arif Bulkan also said, “This case provides a unique opportunity for the Court of Appeal to explain the significance of the wide-ranging constitutional reforms enacted between 2000 and 2003, which were designed to promote inclusiveness, recognize diversity and deepen the protection of fundamental human rights in Guyana.”