September 2, 2014

Court upholds ban on cross-dressing

Acting Chief Justice Ian Chang

Acting Chief Justice Ian Chang

– groups to appeal decision

Acting Chief Justice Ian Chang has ruled that cross-dressing is not a crime once it is not done for improper purposes, lifting a partial ban on the practice which goes to the heart of transgender activities here.

Gay and rights activists have already indicated that they will appeal the decision, clamouring for an absolute ruling that nullifies the decades-old legislation that restricts the way people dress in this country.

Chang’s ruling last Friday afternoon was delivered in a case involving Quincy McEwan, Seon Clarke, Joseph Fraser and Seyon Persaud against the attorney general of Guyana.

Constitutional motion

The four men were charged for cross-dressing several years ago, but later through their attorneys filed a constitutional motion calling for the court to nullify the law. 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 acting chief justice said that cross-dressing in a public place is an offence only if it is done for an improper purpose, according to the ruling.

He 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 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.

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”.

Praise, condemnation

Meanwhile, a joint release by several rights groups led by Colin Robinson of the Society Against Sexual Orientation Discrimination (SASOD) and 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.

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 someone is expressing gender identity, it is 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,” he said. ‘The court did not clarify what improper purposes gave rise to the arrests in this case.”

The groups said in their release that the acting chief justice was not convinced that the cross-dressing law amounted to “discrimination” on the basis of gender, which would have been in violation of the Guyana Constitution.

The court 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.

“No locus standi”

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.

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 and human rights law at the University of the West Indies, Faculty of Law, St Augustine campus, and a coordinator of the Faculty of Law, UWI Rights Advocacy Project (U-RAP), which has managed the litigation.

Non-discrimination

Dr Bulkan said 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.

He added that the legal team for the litigants looks forward to arguing these important human rights concerns before the Court of Appeal.

“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,” he said.

The case of McEwan, Clarke, Fraser, Persaud and SASOD against the 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.

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