The Caribbean Court of Justice, yesterday, handed the transgender community a victory when it made a landmark ruling that Guyana’s “cross-dressing” law is unconstitutional.
The law, in question, is in Section 153(1)(XLVII) of the Summary Jurisdiction (Offences) Act, and it states that it is 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”.
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 was triggered by the 2009 arrest, conviction and punishment of the four trangender women named in the case title.
McEwan was, at the time, 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, who were dressed in skirts and wigs, were also arrested by the police and taken to the Brickdam Police Station.
While in custody, Fraser invoked the rights to legal counsel, medical attention, a telephone call and a statement, but 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 were taken to the Georgetown Magistrates’ Court on February 9, 2009, where they learned of the charges of loitering and wearing female attire in a public place for “an improper purpose”. After pleading guilty to the cross-dressing charge, McEwan, Clarke and Persaud were fined $7,500 each, while Fraser was fined $19,500.
The four transgender women later partnered with Society Against Sexual Orientation Discrimination (SASOD), and challenged the law on grounds that it is not only discriminatory, but in contradiction with the Constitution of Guyana.
Multiple challenges were denied when both the High Court and the Court of Appeal denied the constitutional challenge. So the group argued to the CCJ that the cross-dressing law violated their constitutional rights to equality and non-discrimination and freedom of expression.
Hon. Justice Saunders concurred with this challenge, stating, “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.”
Justices Wit, Anderson, Rajnauth-Lee and Barrow also agreed that this law was from a different time and no longer served any legitimate purpose in Guyana.
A release from the CCJ stated that a majority of the judges opined that the law “resulted in transgendered and gender nonconforming persons being treated unfavourably by criminalising their gender expression and gender identity.”
Hon. Justice Anderson said that the law “criminalises a person’s state of mind as there is no test to determine what is an ‘improper purpose’”.
The court also proclaimed, on the remarks made by the magistrate, that “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.”
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