Transgender Guyanese women ask CCJ to strike down colonial law

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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 four transgender 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 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 affect and 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 Constitution and 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 the Constitution’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 its Director. GTU works to 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 NGO working to end discrimination based on sexuality and gender identity in Guyana, responded to the initial arrests and was originally also an applicant in 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 impact marginalised 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. (SASOD Guyana)

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