In recent times, it seems that those occasions when a 40th anniversary is celebrated, that as a milestone event, it has taken on a greater significance beyond, as the saying goes, “life begins at 40.”
The Indian High Court ruled in its landmark decision in June 2009 that being homosexual is not a crime and that the law, Section 337, imposed by the British in 1861 during colonial rule, was itself antithetical to the Indian Constitution. Around the world, the lesbian, gay, bisexual and transgender (LGBT) community was celebrating and commemorating the 40th anniversary of the Stonewall Riots, which occurred in Greenwich Village in New York City.
It was on the eve of the celebration of Guyana’s 40th Anniversary as a Republic, that Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud, and the Society Against Sexual Orientation Discrimination filed suit in the Supreme Court to have Section 153(1) (xvii) of the Summary Jurisdiction (Offences) Act, Chapter 8:02, declared as irrational, discriminatory, undemocratic, contrary to the rule of law and unconstitutional. In effect, they have issued a challenge to the Guyana’s colonial era laws.
Between February 6 and 7, 2009, seven men: Anthony Bess, Fraser, Joshua Peters, Persaud, Mc Ewan, Clarke, and Leon Conway were arrested for wearing women’s clothing. According to a February 10, 2009 article in the SN, Bess, Fraser, Peters and Persaud pleaded guilty, and Mc Ewan, Clarke and Conway pleaded not guilty to the charge.
But, the case now before the Guyana Supreme Court is one that reaches deep into the country’s history and culture, and extends to other aspects of the country’s constitution. It challenges the cross-dressing law, which the plaintiffs contend is discriminatory and unconstitutional, and on the international scene, has precedence. As discriminatory, the law the men violated by dressing in women’s clothing also prohibits women from wearing men’s clothing. As unconstitutional, with Guyana’s independence from the British in 1966, and with a revised 1980 Constitution, there are specific sections that prohibit violations of the rights of any of the country’s citizens and provides for the guarantee and protection of basic rights, such as, gender, race, ethnic origin, and expression of religion.
But, unless the Court abjures jurisdiction, deferring instead to a higher court, it is stepping into the stalled or abandoned national debate on the issue of recognising that being gay is just as much a right, a human right, to breathe the same air and to have the same blood coursing through the veins of those who are aware of their sexual orientation and accept themselves. It has to make a clear statement on the separation of church and state – especially to the influential conservative religious lobby: the Christians, Hindus and Muslims, who for their own reasons became unlikely allies to oppose passage of legislation granting protection to gays and lesbians.
According to an article published on February 23, 2010 in the SN, as well as seeking declarations, reliefs, and damages, the plaintiffs want the Court to declare that the Acting Chief Magistrate Melissa Robertson, who told the men during the course of the hearing, on February 9, 2009 that they must attend church and give their lives to Christ, was improperly influenced by irrelevant considerations, discriminated against them on the basis of religion and violated a fundamental right of Guyana as a secular state in breach of Articles 1, 40, 145 and 149(1) of the Constitution.
“Unless the wide-ranging constitutional reforms conducted in 2001 and 2003 are to be dismissed as pure window-dressing, then the emphasis placed on non-discrimination during that process should guide the High Court to interpret the expanded equality rights generously in order to protect one of our society’s most marginalised groups,” said Arif Bulkan, one of the Guyanese attorneys assisting with the case, in a February 23, 2010 article in Kaieteur News.
With the Indian High Court decision, there was a mixture of jubilation from the Indian LGBT community and from advocates for the rights of all of the country’s citizens; there were, as well derision and condemnation from the Christian denominations and other groups who have been blinded by religious indoctrination. Suffice it to say, the Indian government issued a statement saying they would not oppose or make any move against the High Court decision; that means the government saw sense and recognised its own constitution.
Nevertheless, beyond recognising its own constitution, the Indian government, which still carries vestiges of the colonial British rule, was recognising the country’s culture, which ran deeper and predated the colonialist. When the High Court issued its ruling, two commentators with the London Guardian offered their views: Balaji Ravichandran, in the July 2, edition of the newspapers, wrote: “The importance of this verdict cannot be understated. This is the first time that an Indian court has gone on record to say that sexual minorities are not second-class citizens, and that they cannot be discriminated against…However, for decades, the police and sometimes society at large used the law as an excuse to persecute gay men and women, who were harassed, blackmailed, detained or raped, unable to seek any protection or justice from the law. In addition, the law was also a significant impediment to fighting HIV/Aids among sexual minorities.”
In another commentary in the same Guardian edition, Anil Bhanot stated that homosexuality is an accepted part of the Hindu religion, the national religion of India: “The ancient Hindu scriptures describe the homosexual condition to be a biological one, and although the scripture gives guidance to parents on how to avoid procreating a homosexual child, it does not condemn the child as unnatural.” In ancient Hindu texts, reaching as far back as 2,100 BCE, Bhanot said that the culture recognised homosexuals, accorded them a place as members of the society, and who even had their own Hindu deity, “Mother Goddess Bahuchara, for their spiritual link to the Absolute Brahm.”
But for Guyanese gays and lesbians, should the Supreme Court rule in their favour, recognising their right to not only wear women’s clothing if they choose, but to be themselves, it would be a sharp signal change in a fragile society that has long been divided along racial lines. With a favourable decision, the Court would effectively say that it is unlawful to call someone, if suspected as gay, an “anti-man” or if suspected as lesbian, as a “dyke.” Perhaps this is the first salvo of a barrage of legal actions challenging the status quo – to encourage a change in thinking, of seeing brothers, sisters, nephews, nieces, mothers, fathers, cousins, uncles, aunts, close friends as they see themselves: same-gender loving people. Perhaps this action, though a first, is a solitary firework cartridge shot into the dark skies of ignorance and insensitivity, struggling valiantly to illuminate the recesses of fear, stigma and discrimination, that is the Guyanese mentality, and fizz out and die. Or, perhaps this legal challenge is the first of many firework cartridges shot into the night sky, followed by many more, encouraged by the bravery and pioneering step of the first, so that those who live in shadows of doubt about who they are could emerge, accept themselves, find acceptance in their families, community and society, and move on to make more valuable contributions to their societies.
This legal action should not be stifled, suppressed or its larger purpose subverted, as occurred in India after the High Court decision.
However, such a decision is sure to raise the heckles and ire of the heavy religious sector, many who are expected to ignore the human rights aspect of their actions in favour of their pseudo-adherence to the family as a unit and nucleus of society; they who would be expected to mount lobbing efforts to go as far as a constitutional amendment to outlaw homosexuality. Buggery, as an offence already exists in the Penal Code, and is still prosecuted with extreme sentences. While the society in Guyana has inched away from an immediate post-colonial mentality regarding buggery, as a law it is more often prosecuted in cases where pedophilia or child abuse is suspected, often also accompanied by sodomy charges.
As stated earlier, there is evidence of the existence and the acceptance of homosexuality in the Indian culture. It is also known that among African cultures, homosexuality was just as widely practiced, and still is, though surreptitiously, as a way of initiation into manhood, intimidation, control, possession, surrogacy in place of a woman, or a in a true relationship.
Guyanese, through the British, are people with descendents of Indians and Africans, and removing the stain of the divisive colonial influence would in some way restore some semblance of normalcy to both peoples who have been struggling for more than 40 years to discern their own identity.
The young men mounting this challenge to the country’s laws have embarked on an ambitious, historic, and unprecedented action, and in so doing, are recognising their cultural heritage. In fact, they are demonstrating that they have chutzpa to challenge the country’s outdated laws. They should have the support of all those pushing for human rights and LGBT rights world over. Guyanese, in particular, should see that this is not as the beginning of the end, of a descent into degeneration, corruption or degradation, but one of being invited to an enlightened and more aware humanity, as the start or a step in the direction to accepting themselves, faults, past and all.
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