The Caribbean Court of Justice in Trinidad

PORT OF SPAIN, Trinidad (CMC) — The Trinidad-based Caribbean Court of Justice (CCJ) ruled as “unconstitutional” a law in Guyana that makes it a criminal offence for a man or a woman to appear in public while dressed in clothing of the opposite sex.

The CCJ, Guyana’s highest court, said that the law, Section 153(1)(xlvii) of the Summary Jurisdiction (Offenses) Act, is to be struck from the laws of country and that costs are to be awarded to the appellants in the appeal before it and the lower courts.

In 2009 several trans women were arrested and convicted under the 1893 Summary Jurisdiction (Offenses) Act of the offense of being a “man” appearing in “female attire” in public for an “improper purpose”. They spent three nights in police detention in Georgetown after their arrest for the minor crime.

One year later, McEwan, Clarke, Fraser, Persaud, and the Society Against Sexual Orientation Discrimination (SASOD) brought an action challenging the constitutionality of the law and the treatment of the appellants during the legal process.

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, the court heard that those requests were not granted and that McEwan, Clarke, Fraser, and Persaud spent the entire weekend in police custody and that 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 February 9, 2009. They all pleaded guilty to the cross-dressing charge and McEwan, Clarke and Persaud were fined GUY$7,500 (One Guyana dollar=US$0.004 cents) and Fraser was fined GUY$19,500.

In imposing the sentence, the presiding 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.

The High Court of Guyana held that cross-dressing in and of itself is not a crime, but disagreed that the law was discriminatory or disproportionately impacted trans and gender non-conforming people.

The matter was appealed to the Guyana Court of Appeal, and finally to the CCJ with the appellants arguing that the law violated their constitutional rights to equality and non-discrimination and freedom of expression, thereby offending the rule of law.

The five-member CCJ panel, headed by its president, Justice Adrian Saunders, first examined the historical context surrounding the law, which was enacted in Guyana in 1893 as part of the vagrancy laws of the post-emancipation era.

The panel agreed that this law was from a different time and no longer served any legitimate purpose in Guyana with Justice Saunders reiterating that “law and society are dynamic, not static.

“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. 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.”

The CCJ also noted that Guyana’s Constitution protects its people from discrimination, and states that no one is to be treated in a discriminatory manner by any public office or authority.

The court held that the law was also unconstitutionally vague, violated the appellants’ right to protection of the law and was contrary to the rule of law.

A majority of the judges, including Justice Saunders, also upheld the appeal on the basis that the law resulted in transgendered and gender non-conforming persons being treated unfavourably by criminalising their gender expression and gender identity.

Justice Winston Anderson, in his judgement, commented that the law wrongly sought to criminalise a person’s state of mind, as there is no test to determine what is an “improper purpose”, while Madam Justice Rajnauth-Lee’s opinion focused on the vagueness of the law in question.

The CCJ also found that the remarks made by the magistrate, immediately after sentencing the appellants and while the Magistrate was still sitting, were inappropriate.

“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,” the CCJ noted.