The Caribbean Court of Justice, Guyana’s final court of appeal, has ruled that Guyana’s law which prohibits cross-dressing be struck out as it serves no legal or social purpose and inhibits the right to freedom of expression.
The Court ordered that Section 153(1)(xlvii) be struck from the laws of Guyana as it violated the rights of the four persons who challenged it to equality and non-discrimination and to their right of freedom of expression.
The court held that the section is unconstitutionally vague and offends the rule of law.
“The Government must acknowledge on its own accord when a law, especially one like the impugned section, has long past its ‘sell by’ date,” the Court stated in its judgement.
Five years ago, then Chief Justice Ian Chang had ruled that that cross-dressing by men, who identify as female, was not a crime but said that in so dressing it should not be for an “improper purpose.”
This still left those who cross-dress open to arrests by the Police.
As a result, Quincy Mc Ewan, Seon Clarke, Joseph Fraser and Seyon Persaud appealed the decision at the CCJ, Guyana’s final court.
In the Judgement today, the CCJ ruled that the law – Section 153 (1) (xlvii) of the Summary Jurisdiction Act Chapter 8:02 – be struck out of the laws of Guyana.
The Court ruled that the law belonged to the Victorian era and so should be struck out as it violated the appellants right to non-discrimination and freedom of expression.
The Court ruled that the expression of identity and individual liberty is protected under the right to freedom of expression and that cross-dressing poses no risk to society.
The legal challenge began in 2010 following a Police crackdown on male cross-dressers.
On February 6, 2009, the appellants were arrested, detained, charged, convicted and punished for cross-dressing in public.
The law prohibits every person “being a man, in any public way or public place for any improper purpose appears in a female attire or being a woman in any public way or public place for any improper purpose appears in a male attire.”
McEwan and Clarke were arrested while waiting for transportation in Georgetown. McEwan was dressed in a pink shirt and a pair of tights and a black headpiece; Clarke was wearing slippers and a skirt.
They were taken to the Brickdam Police Station and told to undress after which they were placed in the lockups.
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 the CCJ ruling, delivered by Justice Adrian Saunders, President of the Court, it was noted that their appearance, mannerisms and other outward characteristics, were not consistent with society’s expectations of gender-normative behaviour.
McEwan, Clarke, Fraser and Persaud mounted a constitutional challenge with the help of the Society Against Sexual Orientation Discrimination and contended that the impugned law was vague and discriminatory, with the vagueness related to “improper purpose” and what constituted female and male attire.
Both the High Court and the Court of Appeal in Guyana denied the constitutional challenges. The appellants took their case to the CCJ arguing that the law violated their constitutional rights to equality and non-discrimination and freedom of expression, thereby offending the rule of law.
The CCJ considered the alleged violations of the appellants constitutional rights to equality and non-discrimination and freedom of expression and the CCJ also considered whether the impugned law offended the rule of law.
The Court also considered whether SASOD was a proper party to the proceedings and the propriety of the remarks of the magistrate.
In the ruling, Justice Saunders stated: “If one part of the constitution appears to run up against an individual’s fundamental right, then in interpreting the constitution as a whole, courts should place a premium on affording the citizen his or her enjoyment of the fundamental right unless there is some overriding public interest.”
The court observed that Guyana is an indivisible, secular and democratic nation and the Constitution protects people from discrimination.
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.”