The Court questioned counsel for the appellants on their contention that the law was uncertain, asking whether it was not possible for a Magistrate to define the term ‘improper purposes’ on a case by case basis by reference to its dictionary meaning. Dr Bulkan responded that permitting this would offend the requirement of the rule of law, since penal statutes had to be defined with sufficient clarity to give citizens prospective notice of how to conduct themselves. He pointed out that even if a person was eventually acquitted by a Magistrate, the fact of being charged and subjected to the state’s coercive powers would have already resulted in violations of their fundamental rights. He added that the term ‘improper purpose’ had no boundaries whatever, and thus gave police unfettered discretion in enforcing the law.
In his response, Counsel for the state, Kamal Ramkarran, insisted that since the appellants had pleaded guilty before the Magistrate, they were barred from bringing this constitutional action. He added that the case was hypothetical and academic and should be thrown out. Mr Ramkarran further stated that in order to bring a constitutional claim a person had to allege a past, present or future breach of their rights, whereas the appellants provided no evidence that they were likely to be charged in the future. Ramkarran stated that there are far more serious crimes deserving of a constitutional challenge, “like the buggery law”. He pointed out that a conviction for cross-dressing is punishable by only $15,000, whereas a conviction for buggery carries life imprisonment. He concluded by saying that to charge the police would have to peep in someone's room to see them committing the act, at which point the court indicated that it was obliged to consider the case before it
This case was initially filed in February 2010, following the widely reported arrests and convictions of seven trans 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, after approaching the Faculty of Law UWI Rights Advocacy Project (U-RAP) for legal advice. Thereafter, with the assistance of U-RAP and local counsel, a constitutional challenge to the cross-dressing law was filed.
Even since the case was filed in February 2010, transgender persons are overpoliced, underprotected and have suffered physically and mentally because of the vagueness of the cross-dressing law in Guyana. 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, was also not consistent with the Guyana Constitution.
The legal team for the appellants included Mr. Nigel Hughes, Dr. Arif Bulkan, and Mr. Gino Persaud.
The Court of Appeal is expected to set a date for judgement in early 2017 after both sides have presented their further written submissions.