Tue | Dec 18, 2018

CCJ rules Guyana cross-dressing law unconstitutional

Published:Tuesday | November 13, 2018 | 2:22 PM

The Caribbean Court of Justice (CCJ) has ruled that a law in Guyana criminalising cross-dressing is unconstitutional.

The law, Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, states that a man or a woman who appears in a public place while dressed in clothing of the opposite sex for an “improper purpose” commits a crime.

But the CCJ says the law must now be struck from books.

The case of Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination v The Attorney General of Guyana began with the arrest of the appellants in February 2009.

Four of the appellants, who identify as transgender persons, were arrested, convicted and punished for cross-dressing in public.

At the time of arrest, McEwan was 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 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 February 9, 2009.

They all pleaded guilty to the cross-dressing charge and McEwan, Clarke and Persaud were fined GY$7,500.

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 conjunction with the Society Against Sexual Orientation Discrimination, proceedings were brought in the High Court of Guyana challenging this law on several grounds, including that it is discriminatory and inconsistent with the Constitution of Guyana.

However, both the High Court and the Court of Appeal in Guyana denied the constitutional challenges.

READ FULL JUDGMENT SUMMARY: www.ccj.org

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 Court first examined the historical context surrounding law, which was enacted in Guyana in 1893, as part of the vagrancy laws of the post-emancipation era.

The panel, comprising of the Honourable President Justice Adrian Saunders and Justices Wit, Anderson, Rajnauth-Lee and Barrow, agreed that this law was from a different time and no longer served any legitimate purpose in Guyana.

"Law and society are dynamic, not static," said Saunders.

"A Constitution must be read as a whole. Courts should be astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful to its essence and its underlying spirit," he said.

Costs are to be awarded to the appellants in the appeal before the CCJ and in the courts below.

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