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The Faculty of Law of the University of the West Indies Rights Advocacy Project (U-RAP) is coordinating litigation in this case. The matter raises key questions about how the random application of outdated laws can increase the vulnerability of poor and powerless people to the prejudices of other people.
U-RAP’s objective is to promote human rights and social justice in the Caribbean by undertaking and participating in human rights litigation in collaboration with human rights lawyers and organisations.
The case of McEwan, Clarke, Fraser, Persaud and SASOD versus the Attorney General was initiated four years ago following the February 2009 conviction and fine of seven individuals for violating Section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act. That 1893 law makes it a criminal offence for males to wear female attire, and for females to wear male attire “in any public way or public place, or for any improper purpose.”
Other activities criminalised in Section 153(1) are: grooming an animal in a public place; placing goods in a public way in town; beating a mat in a public way; flying a kite in the city; loitering around a shop, and hauling timber in a public way.
U-RAP argued that the law is unconstitutional because it violates fundamental rights to equality and non-discrimination.
Dr. Arif Bulkan, the U-RAP co-founder and public law lecturer at the University of the West Indies at St. Augustine Campus, explained that this colonial law was part of repressive penal regimes instituted throughout the Caribbean in the second half of the nineteenth century to severely constrain the lives and actions of recent freed Africans and the newly arrived indentured servants. Bulkan noted thus: “Despite the discriminatory aspects of these colonial laws, and their low regard for the majority colonial populations, vagrancy laws like Section 153(1) have been kept in effect long after Independence.”
He added: “The law is plainly at odds with the ethos and provisions of the Guyana Constitution, which states that it is committed to eliminating every form of discrimination.”
The litigant Seon Clarke posed this question: “How can we still have these laws today? They are used to harass a particular set of Guyanese, and it is not right. All the lawyers in court today were in gowns that looked very much like dresses. Shouldn’t they be charged too?”
The litigant Seyon Persaud added that the general attitude of the community is still very discriminatory and violent. This makes it extremely difficult to access employment or health care, and to simply live. “I am Guyanese too, and I deserve to (enjoy) all these rights, like everybody else,” he said.
The applicants argued that the law violates many provisions of the amended Guyana Constitution, particularly the rights to equality and non-discrimination guaranteed in Articles 149 and 149D. As a general rule, any aspect of a law that is at odds with the Constitution is invalid.
Dr. Alissa Trotz, Associate Professor of Women and Gender Studies and Caribbean Studies at the University of Toronto, a member of the Guyanese organisation Red Thread, pointed out that it was especially important to recognize and applaud the conviction of the four applicants and SASOD for keeping a necessary spotlight on discrimination on the basis of sexual orientation and gender identity. “They make me so proud to be Caribbean,” she said.
Further, she contended, it highlights how laws can be selectively applied to uphold not justice, but a status quo that protects and works for the few, and where those without the so-called respectability of money and power can be regularly and readily targeted for persecution.
The hearing comes at an opportune time for Guyana. This year, the nation has several chances to engage in a rational discourse surrounding key human rights issues. As part of the Human Rights Council’s Universal Periodic Review process, a Special Select Committee of Parliament is considering arguments from a spectrum of stakeholders on law reform related to three issues – corporal punishment in schools, the death penalty, and discrimination against lesbians, gays, bisexuals and transgender persons.
Additionally, ongoing nationwide community consultations will increase public engagement and education, which are critical to changing perceptions.
Secretary of the SASOD Board of Trustees, Zenita Nicholson, explained that constitutional challenge is part of the wider network of opportunities to examine the ways people interact with one another; whether state agencies uphold the rights and dignity of all citizens; and the extent to which laws undermine equality.
Another hearing is scheduled for June 4th in the chambers of the Chief Justice at the High Court.
Gino Persaud and Nigel Hughes are among the team of lawyers involved in the current case.
The above is a Joint Press Release from the Society Against Sexual Orientation Discrimination (SASOD) and the Faculty of Law, University of the West Indies Rights Advocacy Project (U-RAP).
