Cross-dressing Case Likely Heading to the CCJ

(Georgetown, Guyana) The Court of Appeal today in an oral decision delivered by the acting Chancellor, the Honourable Carl Singh, confirmed the ruling of the then acting Chief Justice Ian Chang in the High Court that the expression of one’s gender identity as a trans person is not in and of itself a crime. However, the Court of Appeal unanimously dismissed the appeal, rejecting the appellants’ arguments that the law in question discriminates based on gender and violates multiple equality provisions in the Constitution. The appellants confirmed that they intend to appeal this ruling to the Caribbean Court of Justice (CCJ).

In 2010 four trans women and one of Guyana’s lesbian, gay, bisexual and transgender (LGBT) organisations brought an action challenging the constitutionality of an 1893 colonial vagrancy law found in the Summary Jurisdiction (Offences) Act which makes it an offence for a ‘man’ or a ‘woman’ to cross-dress in public ‘for any improper purpose’. The essence of the case brought by Gulliver McEwan, Angel Clarke, Peaches Fraser and Isabella Persaud and the Society Against Sexual Orientation Discrimination (SASOD) was that this 19th century vagrancy law is hopeless vague, amounts to sex/gender discrimination because it is based on sex-role stereotyping and has a disproportionate impact on trans persons.

The Court of Appeal relied on the earlier reasoning of the Chief Justice and held that the section in question does not make the wearing of specific attire a criminal offence but only targets clothing when worn for an improper purpose in public. The first named applicant and Director of Guyana Trans United Gulliver Mc Ewan expressed her disappointment with how the Court dealt with the uncertainty of the term ‘improper purpose.’ “Trans people are no clearer after today on what this means than before the Court of Appeal’s decision.” said McEwan.

The Court of Appeal admitted that the expression ‘improper purpose’ could be rather broad, but held that from a practical perspective, certainty and accessibility of laws are not always attainable. As such, the Court of Appeal said that it would fall to magistrates to determine the meaning of the term on a case by case basis. Twinkle Bissoon, a trans-woman activist who has been repeatedly barred from court for dressing in female clothing, observed that “the ruling of the Court of Appeal leaves the application of the law to be done on a case by case basis and is very problematic because it allows police officers and other law enforcement to interpret the provisions to give effect to their own prejudices.”

Human rights activist, Danuta Radzik of Help & Shelter, after learning of the judgement stressed that “it is ridiculous to expect that every time a trans-woman in female attire goes to the magistrates courts that we have to go through this charade. Parliament needs to repeal these discriminatory laws so that the human rights of all citizens can be respected.”

Although the Guyana Constitution is unique in the Caribbean in that Article 39(2) obligates the court to pay due regard to international human rights law in interpreting the fundamental rights provisions, the Court of Appeal failed to address any of the arguments of the appellants which addressed the discriminatory nature and effects of the cross-dressing prohibition on trans persons. Guyana’s Constitution has the most robust provisions related to equality found in Anglophone Caribbean constitutions, largely through amendments made in 2003. These provisions include a positive duty on the state to secure equality, especially for disadvantaged groups, and a wide anti-discrimination provision that prohibits discrimination on the grounds of sex and gender. in the Concluding Observations from the United Nations Committee on Economic, Social and Cultural Rights (CESCR) on Guyana’s most recent review on September 28 - 29, 2015, “the Committee recommends  that the State Party repeal the criminalization of … cross-gender dressing.”

The appellants argued that the Guyana Constitution, as well as international human rights law, mandates a substantive vision of equality which recognizes the sex-role stereotyping in the cross-dressing law as a form of discrimination related to gender, and prohibited by the Guyana Constitution. However, the Chancellor said that the court was not persuaded that the law discriminates against anyone.

Lawyers for the appellants interviewed by press. 

Dr Arif Bulkan, one of the lawyers appearing for the appellants, and a co-coordinator of the Faculty of Law UWI Rights Advocacy Project (U-RAP), said that the case raises fundamental questions about the existence of constitutional savings clauses and the protection they give to colonial laws which could never be enacted today. For this reason, he said, today’s judgment underscores the importance of the Caribbean Court of Justice as a final court, where these issues that strike at the heart of justice for marginalized communities can be fully considered.

This case has implications for more than the first four individual appellants. SASOD’s interest is that of its wider membership of LGBT persons and the community of persons it represents. SASOD’s Managing Director Joel Simpson was surprised that the Court completely ignored in its oral decision the very important question of SASOD’s standing as a party to the case, which was one of the grounds of the appeal. “Standing of organizations is a critical issue across the Caribbean where stigmatized persons need the cover provided by rights groups to challenge discrimination,” he said.