Port of Spain, Trinidad. The Caribbean Court of Justice (CCJ) ruled that a law in Guyana, which makes it a criminal offence for a man or a woman to appear in a public place while dressed in clothing of the opposite sex for an “improper purpose”, is unconstitutional. The law, Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, is to be struck from the laws of Guyana. The case of Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) v The Attorney General of Guyana began with the arrest of the appellants in February 2009.
Four of the appellants, who identify as transgender persons, were arrested, convicted and punished for cross-dressing in public. At the time of arrest, McEwan was dressed in a pink shirt and a pair of tights and Clarke was wearing slippers and a skirt. A few hours later, Fraser and Persaud were also arrested by the police and taken to the Brickdam Police Station. At the time, they were dressed in skirts and were wearing wigs.
While in custody, Fraser requested legal counsel, medical attention, a telephone call and that the police take a statement. However, those requests were not granted. McEwan, Clarke, Fraser and Persaud spent the entire weekend in police custody and they did not receive any explanation as to why they had been arrested and detained. They first learned of the charges, of loitering and wearing female attire in a public place for “an improper purpose”, when they were taken to the Georgetown Magistrate’s Court on Monday 9th February 2009.
They all pleaded guilty to the cross-dressing charge and McEwan, Clarke and Persaud were fined GY$7,500 and Fraser was fined GY$19,500. Upon imposing the sentence, the Magistrate told them that they must go to church and give their lives to Jesus Christ and advised them that they were confused about their sexuality.
In conjunction with the Society Against Sexual Orientation Discrimination (SASOD), proceedings were brought in the High Court of Guyana challenging this law on several grounds, including that it is discriminatory and inconsistent with the Constitution of Guyana.
The Court first examined the historical context surrounding law, which was enacted in Guyana in 1893, as part of the vagrancy laws of the post-emancipation era. The panel, comprising of the Honourable President Mr. Justice Saunders and Justices Wit, Anderson, Rajnauth-Lee and Barrow, agreed that this law was from a different time and no longer served any legitimate purpose in Guyana.
The Hon. Mr. Justice Saunders reiterated, “Law and society are dynamic, not static. A Constitution must be read as a whole. Courts should be astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful to its essence and its underlying spirit. If one part of the Constitution appears to run up against an individual fundamental right, then, in interpreting the Constitution as a whole, courts should place a premium on
affording the citizen his/her enjoyment of the fundamental right, unless there is some overriding public interest”. It was also noted that Guyana’s Constitution protects its people from discrimination and states that no one is to be treated in a discriminatory manner by any public office or authority.
The Court held that the law was also unconstitutionally vague, violated the appellants’ right to protection of the law and was contrary to the rule of law. A majority of the judges, President Saunders and Justices Wit and Barrow, also upheld the appeal on the basis that the law resulted in transgendered and gender nonconforming persons being treated unfavourably by criminalising their gender expression and gender identity. The Honourable Mr. Justice Anderson in his judgment commented that the law wrongly sought to criminalise a person’s state of mind as there is no test to determine what is an “improper purpose”.
Mme. Justice Rajnauth-Lee’s opinion focussed on the vagueness of the law in question. The CCJ also found that the remarks made by the Magistrate, immediately after sentencing the appellants and while the Magistrate was still sitting, were inappropriate. According to the Court, “judicial officers may not use the bench to proselytise, whether before, during or after the conclusion of court proceedings. Secularism is one of the cornerstones upon which the Republic of Guyana rests.”
The Court ordered that Section 153(1)(xlvii) be struck from the laws of Guyana and that costs are to be awarded to the appellants in the appeal before the CCJ and in the courts below. The full judgment of the Court and a judgment summary are available on the CCJ’s website at www.ccj.org.
A video of the judgement delivery can be viewed below.
Does this change the price of rice?
There is a fine line between “freedom of expression” and mental illness. Each of us probably knows at least one crazy person who is a very talented artist. In all seriousness though this isn’t about “expression” this is about these people suffering from a mental condition known as gender dysphoria and acting on that. I personally believe that everyone has a right to do what they want with their own bodies and this was a stupid law (as stupid as the anti-buggery laws in Dominica – how do you even enforce that) but let’s not try to legitimize mental illness. There’s a line to be drawn – as thin as it may be.
Roger Pedophiles and people who are intimate with animals want freedom of expression too.
This is pure mental illness.
Let me see what the citizens of Guyana make of this judgement. Maybe these poor fellas…..or girls thaught it was carnival already.
I wonder if these men were wearing pearls, bracelets, earrings and long hair….
maybe they had diamond rings and chokers
maybe they wearing agbadas without pantaloons
or they shaped their eyebrows so they don’t have a unibrow
maybe their boots had too much clearance and the police hated the heel structure
what a stupid law
and I can’t believe the Gubment spent all that money defending it
throughout history clothing has changed between what’s considered masculine and feminine
My uncle’s name is Beverly
another is Leslie and a third is Shelley
Now those are all considered ‘women’ names
when historically they were men’s name
should they be jailed too?
How about the man dressed in public during carnival time in women’s clothing? I saw it many times in my village when I was a kid, at carnival time. Nothing too wrong about that.
the Guyanese want to ban cross-dressing?
silly Gubment
what will they attempt to ban next?
women wearing pants? that’s historically men’s clothing
women wearing heels? that’s historically men’s clothing
women wearing shirts with buttons? that’s historically men’s clothing
A good point!
Wearing wigs was historically also in the male’s domain.
I guess you’ll all have revert back to cane-row, afro and jhery curl. If you do, you will be welcome as models for my paintings and sculptures in the series “Daughters of the Caribbean Sun”.
Coincidentally, this news item comes just as I am writing the final chapter of a book about my work as a painting and sculptor of the nude; a subject that for some is similarly controversial.
Let me make it clear, I am not a cross-dresser nor ever likely to be one. However, I am a defender of freedom of expression.
Paul McCartney once said:
“I used to think anyone doing anything weird was weird. Now I know that it is the people that call others weird that are weird.”