Transgender Guyanese Women ask CCJ to strike down colonial law

On Thursday June 28, four young working-class transgender Guyanese women will have their final day in court. In Port of Spain at the Caribbean Court of Justice (CCJ), Guyana's final appellate court, justices will hear oral arguments in the final appeal of a matter filed in 2010 by Gulliver (Quincy) McEwan, Angel (Seon) Clarke, Peaches (Joseph) Fraser and Isabella (Seyon) Persaud. The fourtransgender women are challenging the constitutionality of an 1893 post-slavery vagrancy provision under which they and three others were detained, convicted and fined by the then Acting Chief Magistrate following their February 2009 arrest in Georgetown, Guyana.

 

The four litigants had their final day in court in a constitutional challenge lasting over 8 years

The arrests and convictions in 2009 were under Part V: Offences Against Religion, Morality & Public Convenience of Guyana’s 1893 Summary Jurisdiction (Offences) Act. Section 153(1)(xlvii) makes it an offence for a man“in any public way or public place, for any improper purpose” to appear in female attire, or for a woman, “in any public way or public place, for any improper purpose” to appear in male attire.Other offences in the Act include roguery, practising Obeah and witchcraft, flying a kite, beating a mat and grooming an animal on a public way.

While outlawing cross-dressing for both men and women, these small charges disproportionately affectand criminalize transgender women as they inhibit their freedom of expression in public.  The 19th century colonial law contravenes Guyana’s Constitution which affords fundamental rights and freedoms of the individual. This case strikes at the heart of plantation colonial rule that sought to restrict the freedom of the individual and promote racial, religious, ethnic and social division amongst Guyanese.

The core claims being made by the four litigants involved in the case are that the 1893 law itself is unconstitutionally vague, engages in sex stereotyping, and disproportionately affects transgender and gender-non-conforming persons. They also argue that the conduct of state officials was unconstitutional. At stake is also the interpretation of sections of the Guyana Constitutionand how it applies international law to human rights.Of particular relevance to the rest of the Caribbean is the question of whether the law is “saved” from constitutional challenge.Very importantly, the litigants will argue that theConstitution’s “savings law clause” does not prevent the court from reviewing this colonial law.

The four litigants involved in the case have already had some wins. There was an important step forward in 2013 when Guyana’s then Acting Chief Justice, Ian Chang, ruled that dressing to express one’s identity is not a crime. Unfortunately, his ruling did not resolve the uncertainty surrounding “an improper purpose.” A second achievement came in 2017 when Guyana’s Judicial Service Commission said that the practice of a magistrate who repeatedly refused to allow trans women with matters before him to enter his courtroom dressed as themselves, violated their right to access the courts and access justice.

Two Guyanese NGOs are deeply involved in the case. Guyana Trans United (GTU) was formed by McEwan, the first-named litigant,now itsDirector. GTU worksto empower the Guyanese trans community to advocate for their human rights and participate as equal citizens in decisions which affect their lives. The Society Against Sexual Orientation Discrimination (SASOD), a 15-year-old NGOworking to end discrimination based on sexuality and gender identity in Guyana, responded to the initial arrests and was originally also an applicantin the proceedings. One of the policy matters before the CCJ is the decision of the trial judge to strike SASOD out of the case as this precedent may impactmarginalised communities’ access to justice.

Senior Counsel Douglas Mendes will argue the case for the four women, leading a team of pro-bono lawyers from Guyana, Jamaica and Trinidad and Tobago, convened by the Faculty of Law UWI Rights Advocacy Project (U-RAP). U-RAP’s mission is to promote human rights and social justice in the Caribbean in collaboration with Caribbean lawyers, civil society organisations and its students.

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For further background information on the case, visit:

(i)                 10 Frequently Asked Questions Answered: http://bit.ly/mcewanccj

(ii)               Case Summary: http://bit.ly/mcewan180628

Cross-dressing Case Likely Heading to the CCJ

(Georgetown, Guyana) The Court of Appeal today in an oral decision delivered by the acting Chancellor, the Honourable Carl Singh, confirmed the ruling of the then acting Chief Justice Ian Chang in the High Court that the expression of one’s gender identity as a trans person is not in and of itself a crime. However, the Court of Appeal unanimously dismissed the appeal, rejecting the appellants’ arguments that the law in question discriminates based on gender and violates multiple equality provisions in the Constitution. The appellants confirmed that they intend to appeal this ruling to the Caribbean Court of Justice (CCJ).

In 2010 four trans women and one of Guyana’s lesbian, gay, bisexual and transgender (LGBT) organisations brought an action challenging the constitutionality of an 1893 colonial vagrancy law found in the Summary Jurisdiction (Offences) Act which makes it an offence for a ‘man’ or a ‘woman’ to cross-dress in public ‘for any improper purpose’. The essence of the case brought by Gulliver McEwan, Angel Clarke, Peaches Fraser and Isabella Persaud and the Society Against Sexual Orientation Discrimination (SASOD) was that this 19th century vagrancy law is hopeless vague, amounts to sex/gender discrimination because it is based on sex-role stereotyping and has a disproportionate impact on trans persons.

Cross-Dressing Appeal Case for Judgment in 2017

The case McEwan, Clarke, Fraser, Persaud and SASOD versus Attorney General of Guyana was heard on Friday, November 18, 2016 before Guyana’s Court of Appeal. The hearing was presided over by Chancellor of the Judiciary Carl Singh, Chief Justice Yonette Cummings-Edwards and Justice Brassington Reynolds. Gulliver McEwan, the first-named appellant, other representatives of the Guyana Trans United (GTU) and the Society Against Sexual Orientation Discrimination (SASOD) were also present at the hearing.

The Chancellor noted that the Court had received extensive submissions from both the appellants and the state, which did not require rehashing orally. However, Dr Bulkan, counsel for the appellants, noted that there were two issues in the state’s submissions that were raised for the first time and to which he would like to respond. He was permitted to address these issues, but after doing so the Court indicated that these new submissions should be recorded in writing, and both parties were given four weeks to present their further written submissions to the court.

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.

Cross-Dressing Suit Set for Appeal Hearing Tomorrow Friday November 18

As the Guyana Trans United (GTU) and the Society Against Sexual Orientation Discrimination (SASOD) join the global observances of November as Trans Awareness Month, Guyana’s Court of Appeal is expected to hear the case McEwan and others versus Attorney General of Guyana tomorrow, Friday, November 18, 2016 at 9:00 hrs 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 appeal was previously fixed for hearing on Wednesday July 13 at 9 am before Guyana’s Court of Appeal. Gulliver McEwan, the first-named appellant, and representatives of the GTU and SASOD were present in a completely full courtroom.  At this hearing, the appellants filed their skeleton arguments in accordance with the rules of the Court. The arguments of the State were yet to be filed. The Court of Appeal noted that the arguments filed by counsel for the appellants were extensive and that it wished some time to fully review them and to receive the arguments from the State.

The 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, which approached the Faculty of Law UWI Rights Advocacy Project (U-RAP). Thereafter, with the assistance of U-RAP and local counsel, a constitutional challenge to the cross-dressing law was filed.

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.

In September, 2013, then Chief Justice, Ian Chang, heard the case and ruled that cross-dressing per se is not a crime, unless done for an “improper purpose.” The parties appealed this ruling, in part because of the inherent uncertainty in the terminology employed in the statute. With that uncertainty, state officials have virtually unlimited discretion in applying the law.

The entire legal team includes Mr. Miles Fitzpatrick SC, Mr. Nigel Hughes, Dr. Arif Bulkan, and Mr. Gino Persaud.

Cross-Dressing Appeal Put Down until October

The Society Against Sexual Orientation Discrimination (SASOD), Guyana Trans United (GTU) and the University of the West Indies Faculties of Law Rights Advocacy Project (U-RAP) welcome the setting down of the McEwan and Others appeal, related to the cross-dressing law in Guyana, for a full hearing on October 17, 2016.The appeal was fixed for hearing on Wednesday July 13 at 9 am before Guyana’s Court of Appeal. Gulliver McEwan, the first-named appellant, and representatives of SASOD and GTU were present in a completely full courtroom. 

The appellants filed their skeleton arguments in accordance with the rules of the Court. The arguments of the State are yet to be filed. The Court of Appeal noted that the arguments filed by counsel for the appellants were extensive and that it wished some time to fully review them and to receive the arguments from the State.

Speech by SASOD's Secretary at Loyola Documentary Film Festival Launch

Loyola Documentary Film Festival 2014

Launch Ceremony, December 11, 2013

Impeccable Banquet Hall

Georgetown, Guyana

Honourable Minister of Culture, Youth and Sport, Dr. Frank Anthony, Head of the Roman Catholic Church in Guyana, Bishop Francis Alleyne, OSB, Father Justin Prabhu, SJ, other members of the Roman Catholic Diocese, special invitees, members of the media, ladies and gentlemen, good morning to you all. I am indeed honoured to speak with you today on this occasion of the launch of the Loyola Documentary Film Festival, organised by CatholicTV. First, I would like to congratulate the Catholic Church in Guyana on this ground-breaking initiative. Our fledgling film-making industry needs these kinds of initiatives to encourage its development.

Documentary film-making is an important genre of film-making as it provides an avenue to share real-life stories through the powerful medium of film. But not only is the contribution of documentaries to film-making good for the art form, it is also an instrumental tool in our work on addressing social, economic and cultural issues in Guyana. I was particularly pleased to see that the objectives of the Loyola Festival include documenting livelihood issues of the rural and urban poor, exposing situations that affect survival and human rights, and advocating with policy makers for changes in policies, and with social leaders for changes in practices. In this regard, documentaries are a invaluable medium in public education to reach people with visual narratives to which they can relate. Documentaries also contribute to the evidence base which decision-makers often need to build the case for policy changes.

In my own experience, documentaries are effective at highlighting issues of the poor and vulnerable who are often forgotten. At the Society Against Sexual Orientation Discrimination (SASOD), we started using video as a form of documentation for human rights violations when the Guyana Police arrested 7 male-to-female transgender persons for cross-dressing over a 48-hour period in February 2009. With a small camcorder, SASOD was able to respond quickly to record the testimonies of these transgender victims who suffered a range of human rights abuses at the hands of the Guyana Police, including denial of their rights to be informed of the reasons for being arrested, not being allowed to phone calls or contact lawyers – these are all basic rights under the Guyana Constitution. Beyond that, they were kept imprisoned over the 72-hour constitutional limit, and mocked and abused by the police who held them in custody. When they were brought before the court, then acting Chief Magistrate – now Judge – Melissa Robertson, told them that they were men – not women – and that they need to “go to church and give their lives to Christ.” This video documentation contributed to SASOD's first documentary, produced 2 years later in May 2011 by local journalist Neil Marks, aptly titled “My Wardrobe, My Right” - which is a 20-minute feature which highlights the life stories of Peaches and Gulliver, 2 of the transgender women who were arrested during the police crackdown. A preview of “My Wardrobe, My Right” is available on the SASOD YouTube channel. Since then, SASOD has produced several other short video documentaries where lesbian, gay, bisexual and transgender (LGBT) Guyanese share their experiences of social stigma, economic disadvantage and exclusion, which make them even more vulnerable to human rights abuses. The fact that same-sex intimacy and cross-dressing are criminalised also makes it difficult for LGBT Guyanese to access equal protection of the law, which is also a protected right in the Guyana constitution. SASOD is also currently working with Neil Marks and Mark Murray to produce another 20-minute feature on the “Double Stigma” faced by sexual and gender minorities living with HIV in Guyana. It is slated for release in January 2014, and hopefully we will be able to submit it to the inaugural Loyola Documentary Film Festival for your consideration. :)

Documentaries allow us to put real names and faces to our work to end poverty and discrimination in Guyana. In addition to the videos on LGBT human rights issues on the SASOD YouTube channel, I want to encourage everyone here to look at another local documentary on YouTube called “Tin City Voices” which boldly depicts the issues affecting the urban poor in the Georgetown's ghettos. The poor and the marginalised can no longer be ignored or made invisible to the general public and our policy makers, as documentary film-making provides us with a powerful tool to reach millions with personal experiences and visual evidence. And with the undeterminable reach of the internet, our audiences need not be confined to local film festivals or national television. If international 'naming and shaming' is what it will take to effect change, then, as social advocates, we also need to embrace these methods to bring about real change for the poor and the powerless who are depending on us to represent them.

Once again, I want to congratulate CathoicTV and the Catholic Church of Guyana for this innovative venture. If I'm not mistaken, I believe this is the first, local documentary film festival in Guyana, so hats off to the Catholic community for blazing a new trail in the local film industry. I also want to encourage the private sector to come on board, and support the industry. Resources are also needed to make good films.

Thank you, and best wishes for a successful festival. I look forward to attending and seeing the new local documentaries on these issues. 

Zenita Nicholson

Secretary, SASOD Board of Trustees 

Constitutional Court Rules Cross-Dressing is Not a Crime if Not for “Improper Purpose”

Joint Media Release from the Society Against Sexual Orientation Discrimination (SASOD), Guyana Trans United (GTU), Caribbean Vulnerable Communities Coalition (CVC), Caribbean Forum for Liberation and Acceptance of Genders and Sexualities (CariFLAGS) and the Faculty of Law University of the West Indies Rights Advocacy Project (U-RAP)

Constitutional Court Rules Cross-Dressing is Not a Crime if Not for “Improper Purpose”     

- Rights Groups Plan Appeal on Dubious Decision

Georgetown, Guyana

On Friday afternoon, September 6, 2013, the Honourable Chief Justice (Ag.), Mr. Ian Chang delivered his judgment in Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD)   vs. Attorney General of Guyana. 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. The Chief Justice said that cross-dressing in a public place is an offence only if it is done for an improper purpose.

The Chief Justice also found that the police violated the human rights of the four litigants in the case during their crackdown in February 2009 when they arrested them under section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act and he awarded each of the four arrested compensation of $40,000 (GYD) for breach of their rights to be informed as soon as reasonably practicable as to the reason(s) for their arrests under Article 139 (3) of the Guyana Constitution.

Chief Justice Chang also decided that section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act, is immune from the constitutional challenge brought by the four transgender litigants and their supporting organisations. As an 1893 law, pre-dating Guyana’s independence, the Chief Justice said “legislative rather than curial action is necessary to invalidate the provision.y to invalidate the provision”.” The litigants are preparing to appeal this and other aspects of Friday’s court decision. 

Colin Robinson, manager of the CariFLAGS secretariat based in Trinidad, praised the court’s finding that “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.” The court also found that the law applies only to “attire” and not other gendered accoutrements such as head wigs, ear rings or even shoes. “The learned Chief Justice, however, has confused sexual orientation with gender identity,” Robinson commented.

Reacting to the judgment, the first-named applicant, Quincy McEwan, better known as Gulliver, who is also the Director of Guyana Trans United (GTU), noted that, “The Chief Justice was relatively clear that once you are expressing your gender identity, it’s not criminal for a man to wear female attire. 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 court did not clarify what improper purposes gave rise to the arrests in this case.

The Chief Justice was not convinced the cross-dressing law amounted to ‘discrimination’ on the basis of gender, which would have been in violation of the Guyana Constitution. The court also ruled that the prohibition in the 1893 law is against persons of both genders for the same conduct and, as such, does not amount to discrimination based on gender. Se-shauna Wheatle is Jamaican and Lecturer in Law at Exeter College at the University of Oxford and a researcher in the fields of comparative human rights law and comparative constitutional law. Wheatle, who is the author of the 2013 report “Adjudication in Homicide Cases involving Lesbian, Gay, Bisexual and Transgender (LGBT) Persons in the Commonwealth Caribbean,” said that “The constitutional moment presented by this case demanded more detailed assessment of the issue of discrimination against transgender persons.” She observed that “The reasoning of the learned judge omitted any discussion of the prescription of gender roles to individuals according to their sex and the consequent requirement that individuals dress according to those prescribed gender roles. There was no discussion of the way in which the challenged section reflected such prescription of gender roles or the impact of this dynamic on persons who are transgender.”

The court also ruled that SASOD had no locus standi (standing) in the matter since the individual applicants brought the claim in their own names as the persons who were personally aggrieved. The Guyana Constitution was the first in the English-speaking Caribbean to give “an association acting on behalf of its members” the right to bring a claim before the Constitutional Court that there has been a breach of the guaranteed fundamental rights. The standing of SASOD is one of the issues which the litigants expect to argue before the Court of Appeal.

Similar sentiments were echoed by Zenita Nicholson, Secretary of SASOD’s board of trustees. “I feel the court lost a golden opportunity to give life to the Guyana constitution by vitiating this 1893 law against cross-dressing and establishing that all Guyanese are entitled to fundamental rights and freedoms, including our transgender citizens, who unfortunately will continue to be vulnerable to human rights abuses, with this dubious decision. We must appeal it,” she said.  

Dr. Arif Bulkan who argued the case on behalf of the litigants is a lecturer in constitutional law and human rights law at the Faculty of Law, UWI, St. Augustine and a coordinator of the Faculty of Law UWI Rights Advocacy Project (U-RAP), which has managed the litigation. Dr. Bulkan said that “This case raises issues of great public and constitutional importance relating to the scope of the restrictive savings law clauses in the Constitution that limit challenges to repressive colonial laws and the new provisions in the Guyana Constitution dealing with equality and non-discrimination. The region is closely watching this case.” He added that the legal team for the litigants, which includes Mr. Gino Persaud as instructing counsel, looks forward to arguing these important human rights concerns before the Court of Appeal. He said “In the content of our laws and details of our conduct, we must give meaning to the strong commitment in the Constitution to eliminate ‘any and every form of discrimination’ in Guyana.”

The case of McEwan, Clarke, Fraser, Persaud and SASOD v. Attorney General was initiated four years ago following the February 2009 conviction and fine of seven individuals for violating section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act. The 1893 law makes it a criminal offence for men to wear female attire and for women to wear male attire “in any public way or public place, for any improper purpose.” Other activities criminalised in section 153(1) are: grooming an animal in a public place; placing goods in a public way in town; beating a mat in a public way; flying a kite in the city; loitering around a shop and hauling timber in a public way. Unrepresented and unaware of their rights, the defendants were detained in police custody over the weekend, and then hustled through the legal system and fined $7,500 (GYD) each.  

U-RAP co-founder, attorney-at-law and public law lecturer at the University of the West Indies (UWI), St. Augustine, Dr. Arif Bulkan explained that this colonial law was part of repressive penal regimes instituted in the second half of the nineteenth century throughout the Caribbean to severely constrain the lives and actions of recent freed Africans and the newly arrived indentured servants. Bulkan notes that “Despite the discriminatory aspects of these colonial laws, and their low regard for the majority colonial populations, vagrancy laws like section 153(1) have been kept in effect long after independence.” He adds that "The law is plainly at odds with the Guyana Constitution which states that it is committed to 'eliminating every form of discrimination.'”

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Hon. Mr. Justice Ian Chang – Chief Justice (Ag.) [Photo Credit: Stabroek News] 

Notes to editors

SASOD is a local human rights organization working to promote equality and justice for all Guyanese, and is particularly focused on eliminating discrimination based on sexuality, gender, sexual orientation, gender identity and gender expression in Guyana.

GTU is a local transgender group working to empower the Guyanese trans community, advocate for their human rights and participate as equal citizens in decisions which affect their lives.

CVC is a regional coalition of community leaders and non-governmental agencies providing services directly to and on behalf of vulnerable populations who are marginalised and excluded in the Caribbean.

CariFLAGS a 16-year-old lesbian, gay, bisexual, transgender and intersex (LGBTI) Caribbean advocacy network with offices in Castries, Kingston, Port of Spain and Santo Domingo, and affiliate organizations across the region.

U-RAP’s objective is to promote human rights and social justice in the Caribbean by undertaking and participating in human rights litigation in collaboration with human rights lawyers and organisations. The team of lawyers involved in this case includes Gino Persaud, Nigel Hughes and Miles Fitzpatrick, S.C.

Media Spokespersons:

Zenita Nicholson for SASOD: +592 662-8278

Quincy McEwan for GTU: +592 674-8741

Ivan Cruickshank for CVC: +1 876 631-7299

Colin Robinson for CariFLAGS: +1 868 758-7676

High Court Hearing on Guyana’s Cross-dressing Law Adjourned to June 4

Joint Press Release from the Society Against Sexual Orientation Discrimination (SASOD)

and the Faculty of  Law University of the West Indies Rights Advocacy Project (U-RAP)

High Court Hearing on Guyana’s Cross-dressing Law Adjourned to June 4

GEORGETOWN, GUYANA

On Friday 10^th May, 2013, Guyana’s Chief Justice Ian Chang heard arguments in a constitutional challenge to Guyana’s nineteenth century cross-dressing law. The applicants are Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD). The Faculty of Law University of the West Indies Rights Advocacy Project (U-RAP) is coordinating litigation in this case. The matter raises key questions about how the random application of outdated laws can increase the vulnerability of poor and powerless people to others’ prejudices. U-RAP argued that the law is unconstitutional because it violates fundamental rights to equality and non-discrimination.

The case of McEwan, Clarke, Fraser, Persaud and SASOD v. Attorney General was initiated four years ago following the February 2009 conviction and fine of seven individuals for violating section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act. The 1893 law makes it a criminal offence for men to wear female attire and for women to wear male attire “in any public way or public place, for any improper purpose.” Other activities criminalised in section 153(1) are: grooming an animal in a public place; placing goods in a public way in town; beating a mat in a public way; flying a kite in the city; loitering around a shop and hauling timber in a public way.

U-RAP co-founder, and public law lecturer at the University of the West Indies, St. Augustine, Dr. Arif Bulkan explained that this colonial law was part of repressive penal regimes instituted in the second half of the nineteenth century throughout the Caribbean to severely constrain the lives and actions of recent freed Africans and the newly arrived indentured servants. Bulkan notes that “despite the discriminatory aspects of these colonial laws, and their low regard for the majority colonial populations, vagrancy laws like section 153(1) have been kept in effect long after independence.” He adds that “the law is plainly at odds with the ethos and provisions of the Guyana Constitution which states that it is committed to 'eliminating every form of discrimination.'”

Seon Clarke, litigant in the case questioned on Friday, “How can we still have these laws today? They are used to harass a particular set of Guyanese and it is not right. All the lawyers in court today, were in gowns that looked very much like dresses, shouldn’t they be charged too?”

Seyon Persaud, litigant in the case, added that the general attitude of the community is still very discriminatory and violent. This makes it extremely difficult to access employment, health care and to simply live. “I am Guyanese too and deserve to do all these rights like everybody else,” said Persaud.

The applicants argued that the law violates many provisions of the amended Guyana Constitution, particularly the rights to equality and non-discrimination in Articles 149 and 149D. As a general rule, any aspect of a law that is at odds with the Constitution is invalid.

Dr. Alissa Trotz, Associate Professor, Women and Gender Studies, and Caribbean Studies, at the
University of Toronto, and of Guyana’s Red Thread, pointed out that it was especially important to recognize and applaud the conviction of the four applicants as well as SASOD, for keeping a necessary spotlight on discrimination on the basis of sexual orientation and gender identity. “They make me so proud to be Caribbean,” she said. Further, it highlights how laws can be selectively applied to uphold not justice but a status quo that protects and works for the few, and where those without the so-called respectability of money and power can be regularly and readily targeted for persecution, Dr. Trotz contended.

The hearing comes at an opportune time for Guyana. This year the nation has several chances to engage in a rational discourse surrounding key human rights issues. As part of the Human Rights Council’s Universal Periodic Review process, a Special Select Committee of Parliament is considering arguments from a spectrum of stakeholders on law reform related to three issues - corporal punishment in schools, the death penalty and discrimination against lesbians, gays, bisexuals and transgender persons. Additionally, on-going nationwide community consultations will increase public engagement and education which are critical to changing perceptions.

SASOD’s Secretary of the Board of Trustees, Zenita Nicholson, explained that the constitutional challenge is part of this wider network of opportunities to examine the way people interact with one another, whether state agencies uphold the rights and dignity of all citizens, and the extent to which laws undermine equality.

Another hearing is scheduled for June 4^th 2013 in the High Court, Chief Justice’s chambers.

SASOD is a Guyana-based human rights advocacy organisation which is committed to promoting equal rights for all people, with a focus on eliminating discrimination on the grounds of sexual orientation, gender identity and gender expression.

U-RAP’s objective it is to promote human rights and social justice in the Caribbean by undertaking and participating in human rights litigation in collaboration with human rights lawyers and organisations. The team of lawyers involved in the current case includes Gino Persaud and Nigel Hughes. Attorney-at-law and U-RAP co-founder, Dr. Arif Bulkan, presented arguments on behalf of the applicants on Friday.

U-RAP co-founder Dr. Arif Bulkan speaking at a meeting with Transgender Guyanese on Friday.

U-RAP founder Tracy Robinson debriefing transgender Guyanese after Friday's court hearing.

SASOD urges action to stop homophobic bullying in school

Guyana Times article 

October 1, 2012 

By Danielle Campbell

The Society against Sexual Orientation Discrimination (SASOD) has expressed dissatisfaction at a growing trend of bullying in both the public and private education system perpetrated on students perceived to be overweight, of a different race, or a certain sexual orientation.
As such, the organisation is again urging a comprehensive review of a broad range of policy statements and is calling for the development of clear guidelines with specific reference to the education sector.
During an interview with Guyana Times, SASOD co-chair Joel Simpson revealed that the organisation has received complaints from at least two young students, who have faced homophobic bullying – one at a senior secondary school in the city.

Joel Simpson

The society is attempting to have the information provided by the students, documented for research purposes.
"One of the challenges is that when these students are being harassed by classmates, they don't want to complain for fear of reprisal and further victimisation. So our strategy becomes to work with them just after school to see how we can address the issue in a systematic way," Simpson said.
He added that in such cases, school becomes a challenging environment to work in as there are no formal counselling mechanisms in place for support, guidance, and even solidarity when students face discrimination, harassment or any form of bullying.
The organisation was quick to point out that bullying does not have to be homophobic, but can range from racist remarks to jokes about size, stature, physical features, and deformities.
"We have seen in one particular instance where the school administration has sanctioned this type of bullying by sending a strong message that the confused student should change his orientation," Simpson remarked.
He described this dilemma as problematic and said this situation needs to be addressed at the policy level in terms of educating and training school administrations and to provide a mechanism for students to seek redress.
SASOD Secretary Zenita Nicholson emphasised that there is also no systems in place to deal with holding teachers accountable for allowing any form of bullying and even sanctioning and contributing to it.
Nicholson said when it comes to education and children, once a child is different, they are exposed to the worst forms of schoolyard bullyism and discrimination.
"If that child is too fidgety, let's label him as having Attention Deficit Disorder (ADD) or ADHT, and more or less if that child has a suspicion of a sexual orientation, they are called names and taunted and this is encouraged by some teachers."
She noted that when such incidences occur, it is very unfortunate since the child is not encouraged to study and may eventually drop out of school or even commit suicide.
Nicholson believes that this creates unequal rights to education, as well as an imbalance in the way bullied youths have access to schooling without interference.  "They deserve the equal opportunity to an unhindered education just like every child, regardless of their abilities or orientation," Nicholson said.

Cross-dressing and men in the closet
Speaking on the laws against cross-dressing, Nicholson said SASOD has received numerous complaints about police perpetuating crimes against lesbians, gays, bisexuals, and transvestites (LGBT) who are found in default.
"Some policemen break into their homes, steal their wigs, and carry away their clothes and shoes. They harass them, demand sexual favours, and would even strip them naked on the seawalls and have them walk into the spotlight of their cars," she alleged.
Nicholson said these are reports that she has personally documented, and she is extremely saddened by this state of affairs.

Zenita Nicholson

She explained that during recent consultations, some officers in the disciplined services, who prefer to keep their orientations secret, have expressed embarrassment that their homosexual partners would point them out in public.
"One of the things they told me is that they didn't want to be identified on the street and they didn't want these men to be calling out to them when they are with their workmates.
"They believe that gay men needed to stay in the closet. They claim they needed to be homophobic when they meet their partners on the road, because if they admit to knowing them, their colleagues would subject them to the taunts of being gay."
Nicholson stated that so-called macho men would throw slurs at homosexuals during the day and seek them out for sex at night.

Homophobia
Commenting on the issue of homophobia, Simpson stated that psychological research has proven that one of the factors which drive violent homophobia is a fear within a person that they may have homosexual inclinations.
"Many times when we see people act out violently against gays, it is sometimes because they have struggles within themselves and may themselves be battling with homosexuality," Simpson stressed.
He believes that most of the responsibilities for addressing homophobia reside with state actors, since many of the difficulties surround "legislatory red tape", as homosexual behaviour is still considered criminal.
"So that cross-dressers who are stripped naked by police and placed to walk home in the headlamps of their cars would not want to make a report to police because the law says it's illegal to cross-dress.
"So how do we even start to address issues of justice, if the law already rules out certain lifestyles as criminal?" Simpson questioned.
He remarked that some gay men experience extortion at the hands of police, since they would opt to pay a bribe rather than face arrest or imprisonment.
"For them, the law accentuates the shame and stigma attached to certain behaviours.
This is what we need to change if we want to address the extortion, the harassment, the bribery, and discrimination that come with these issues," Simpson stressed.
He detailed that SASOD has been engaging the Guyana Police Force in an ongoing conversation and is working through all available avenues to continue its mandate of preventing discrimination.
The organisation has printed and distributed brochures on the police powers of arrest, search and questioning so that members who may have committed a crime would not face further violation of their rights due to ignorance.

Homosexuals can be cured
Simpson said the religious community and conservative elements are of the view that sexual orientation is a choice and can be corrected and cured. Referring to remarks by Pandit Reepu Daman Persaud, Simpson indicated that research from all parts of the globe has discounted this notion and has proven that attempts to fix homosexuals can cause severe damage to their psyche.
"There are people who struggle every day with homosexuality and trying to change who they are. Some eventually commit suicide and many of them live unhappy lives entering into heterosexual relationships which eventually lead to divorce.
"They don't last; they don't work out and years after when they have children, then they decide they need to face their true orientation. We see all these stories across the world and on Oprah," Simpson related.
He questioned which person in their right mind would choose to live a lesbian, gay, transvestite or bisexual lifestyle knowing the stigma and discrimination that comes with it.
"It doesn't make any sense to me who would choose the most difficult path when it's easier to just live a heterosexual life. So I think it's important that such messages be discounted and be called out for what they are – a psycho-social attempt to reform LGBT people which can be met with very, dire consequences."

Lobbying for law reform
Government recently tabled a motion which was passed in Parliament to hold countrywide consultations with the Guyanese people on three outstanding recommendations outlined by the United Nations Human Rights Committee (UNHRC), on the 2010 Universal Periodic Review (UPR).
The motion asked that a special select committee be established to hold consultations on the death penalty, corporal punishment, and homosexuality and present a report on the findings to the National Assembly.
"I think the parliamentary process will help to strengthen the consultations and how they are viewed. It's important, because it allows for participation from all the parliamentary political parties.
This is important if we are aiming for law reform to address many of the issues which relate to removing the discriminatory laws and policies," Simpson reiterated.
SASOD said it looks forward to when Parliament reopens on October 10.
"We are expecting that the communities directly affected by these laws, that there will be mechanisms for hearing these views and to have them play centre stage in these consultation process," Simpson pointed out.
The Constitution in Article 30 requires that people have a stake in the decisions that directly affect their lives.
"And because we are dealing with issues surrounding marginalised people, we are already starting from the perspective where these groups have less access to mainstream mechanisms… Many of these decisions are dominated by voices which do not have a stake in these issues," Simpson said.

Article can be found on the Guyana Times website at http://www.guyanatimesgy.com/sasod-urges-action-to-stop-homophobic-bullying-in-schools/

Regards,

Richard Pitman

Advocacy and Communication Officer: SASOD - Guyana

Society Against Sexual Orientation Discrimination (SASOD)

169 Charlotte Street, 

Lacytown, Georgetown

Email: sasod.officer@gmail.com 

Website: http://www.sasod.org.gy

Phone: (592) 225-7283 (O); 600-5124 (C).

Injustice anywhere is a threat to justice everywhere.  - Martin Luther King Jr. 

Stop Dress Code Arrests; Repeal Discriminatory Laws

For Immediate Release

Guyana: Stop Dress Code Arrests
Repeal Discriminatory Laws

(Georgetown, March 5, 2009) – Guyana should halt arrests and police abuse of transgender people and repeal a repressive law that criminalizes wearing clothes considered appropriate only for the opposite sex, six human rights organizations said today in a letter to President Bharrat Jagdeo.

The letter was signed by the Caribbean Forum for Liberation of Genders and Sexualities (CARIFLAGS), Global Rights, Guyana Rainbow Foundation (Guybow), Human Rights Watch, International Gay and Lesbian Human Rights Commission (IGLHRC), and the Society Against Sexual Orientation Discrimination (SASOD). They called on the Guyanese authorities to drop the charges against seven people arrested under the law in February, 2009, and investigate allegations of abuse by the police.

“Police are using archaic laws to violate basic freedoms,” said Scott Long director of the Lesbian, Gay, Bisexual, and Transgender Rights Program at Human Rights Watch. “This is a campaign meant to drive people off the streets simply because they dress or act in ways that transgress gender norms.”

Between February 6 and 10, police in the Guyanese capital, Georgetown, detained at least eight people, some of them twice, charging seven of them under section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act Chapter 8:02. This criminalizes as a minor offense the “wearing of female attire by man; wearing of male attire by women.”

Officers took the detainees to Brickdam police station. The detainees reported to SASOD Guyana, a local human rights organization working for the freedoms of lesbian, gay, bisexual, and transgender people, that police refused to allow them to make a phone call or contact a lawyer, both basic rights under Guyanese law.

The detainees reported that police officers photographed them and then told them to take off all of their “female clothes” in front of several police officers. One defendant told rights organizations that after the detainees stripped, the police told them to bend down to “search” them, as a way to mock them for their sexual orientation. They were then ordered to put on “men’s clothing.”

Police kept five of the men in solitary confinement until the day of the trial, contending that it was for their safety.

The first arrests took place on February 6, when plainclothes policemen detained three men in downtown Georgetown, near Stabroek Market. On February 7, the police detained five more. In both occasions acting Chief Magistrate Melissa Robertson fined the detainees GY$7,500 (US$36) each. On February 10, the police detained four people; three of whom had been among those arrested on February 6 and 7.

In court, when handing down the sentence, Chief Magistrate Robertson told the detainees they were not women but men and exhorted them to “go to church and give their lives to Christ.”

“The enforcement of laws repressing individuals’ self-expression is against basic provisions of human rights,” said Stefano Fabeni, program director of the LGBTI Initiative at Global Rights. “Police treatment during arrest and detention of the eight men shows serious breaches of Guyana’s international human rights obligations.”

The Summary Jurisdiction (Offenses) Act provides for adjudication of these cases without a jury. The act dates from colonial times. Other offenses under the same provision include: “exposing for sale cattle in improper part of town (iv); beating [a] mat in [a] public way in town (vii); cleansing cask, etc. in public way (xl); driving cattle without proper assistance (xv), etc.”

Police use the law to target people born male who wear what police regard as female clothing. This violates the individual’s privacy, freedom of expression, and personal dignity.
“It is outrageous in this day and age that human beings get arrested for cross-gender expression,” said Vicky Sawyer, transgender representative for CARIFLAGS. “Transgender issues should be dealt with using international human rights standards, not police abuse.”

As a party to the International Covenant on Civil and Political Rights (ICCPR), Guyana has agreed to respect the absolute prohibition against torture, cruel, inhuman or degrading treatment or punishment set out in the treaty (Article 7). Article 14 of the same treaty affirms the right to counsel. The treaty also bars interference with the right to privacy (Article 17) and protects freedom of expression (Article 19). Guyana has the obligation to respect and ensure these rights, and to do so in a nondiscriminatory manner, as set forth in Article 2.

Guyana has several laws that criminalize relationships between people of the same sex. Section 351 of the Criminal Law (Offenses) Act punishes committing acts of “gross indecency” with a male person with a two-year prison sentence. Section 352 criminalizes any “attempt to commit unnatural offenses.” This includes a 10-year prison sentence for any “male [that] indecently assaults any other male person.” Finally Section 353 states that “Everyone who commits buggery, either with a human being or with any other living creature, shall be guilty of felony and be liable to imprisonment for life.”

To read the letter from the six organizations to President Bharrat Jagdeo, please visit:http://www.hrw.org/en/news/2009/03/05/letter-president-republic-guyana

For more information, please contact:
In Georgetown, for Guybow, Colleen McEwan (English): +592-225-2425; or +592-642-9766
In Georgetown, for SASOD, Namela Baynes-Henry (English): +592-600-4010
In New York, for Human Rights Watch, Juliana Cano Nieto (English, Spanish) +1-212-216-1233; or +1-646-407-0020 (mobile)

SASOD Statement: Rights Group Urges Government to Repeal Colonial-Era Laws

Guyana has become an international laughingstock for the recent conviction and fine by our Acting Chief Magistrate on February 9^th of seven Guyanese citizens for what is commonly called ‘cross-dressing.’ Within Guyana the arrests and charges on February 6th have left reasonable-minded citizens in shock and dismay. The charges were laid under section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act Chapter 8:02 which makes an offence of “being a man, in any public way or public place, for any improper purpose, appears in female attire, or being a woman, in any public way or public place, for any improper purpose, appears in male attire… ” What is more ironic is that the men pleaded that they were so dressed to attend a well-advertised entertainment event that made fun of cross-dressing.

Such archaic, colonial-era laws, which have no victims other than those who are convicted of them, remain on Guyana’s 21st Century law books, along with others, such as section 153 (1) (xi) of the said Act which renders it illegal to, “in any public way or public place in any town, beats or shakes any mat between six o’clock in the morning or six o’clock in the afternoon” and section 169 which deals with “dancing in town after midnight.” It is past time for our Government to rid the law books of such outdated, victimless offences. Keeping on the books statutes that find illegality in practices where no reasonable or right-thinking person would find any undermines the very rule of law itself and public respect for its authority. Although the colonial era ended when Guyana gained its independence, the ghosts of its past still live on to haunt the most vulnerable and marginalised groups in our society today.

A graver danger of these laws, however, is revealed in what transpired in this case before Acting Chief Magistrate Melissa Robertson-Ogle. It is no accident that when on occasion they are arbitrarily invoked these archaic laws disproportionately affect the poor and the powerless. Take, for example, the common trend of ‘cross-dressing’ in local stage plays to ridicule homosexuals. Why are these performances not subject to the application of the law? Is it because those interests have more socio-economic power than the working class? By leaving magistrates wide discretion to decide when cross-dressing is for “an improper purpose”, the law leaves itself open to abuse based on personal and religious prejudices.

The February 6th incident therefore rises to the level of a major human rights concern. Legal regulations which penalize ‘cross-dressing’ effectively criminalize persons whose ways of expressing themselves, in their manner of dressing, goes against certain stereotypical expectations for gender roles. In this regard, dressing, as a form of gender expression, is a question of freedom of expression. Laws against ‘cross-dressing’ therefore violate the right to freedom of expression, as all persons have the right to express their gender freely through the way in which they dress. These insidious provisions should therefore be urgently expunged from the law books given their contravention of basic, democratic freedoms.

Yet another troubling dimension are the comments attributed to Acting Chief Magistrate Melissa Robertson-Ogle as more than one media house reports her as telling the seven men, who are reported as “gay,” that they were “confused” about their sexuality and gender, it was a “curse on the family” and suggesting they “go to church and give their lives to Christ.” This should concern every Guyanese. In a multi-cultural, multi-religious society such as Guyana, all should be entitled to the freedom of religion, which is generally recognized to also include the freedom not to follow any religion. In a democratic society, there should be separation of church and state, and judicial officers in the execution of their duties should exercise impartiality in rendering decisions and professionalism when providing guidance to citizens. The Acting Chief Magistrate’s comments imply otherwise, strike as highly inappropriate and raise questions, which other local rights groups have recently highlighted, about the appropriate role of religion in state institutions, and fair treatment under the law.

SASOD therefore calls on the Government to swiftly remove these insidious, colonial statutes from the law books, honouring Guyana’s independence as a democratic nation.