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.
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.”
Joel Simpson, Managing Director of SASOD
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.”
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