ACTING Chief Justice Mr. Ian Chang, SC, yesterday delivered a decision in respect to a motion brought by five male applicants who claimed they had been arrested and detained by the police for allegedly wearing female clothing, among other things.

The Chief Justice disclosed, “It is instructive to note that it is not a criminal offence for a male to wear female attire and for a female to wear male attire in a public way or place, under Section 153 (1) (XLV11). It is only if such an act is done for an improper purpose that criminal liability attaches.
“Therefore, it is not criminally offensive for a person to wear the attire of the opposite sex as a matter of preference, or to give expression to, or to reflect, his or her sexual orientation. It is the improper purpose for such conduct to which criminality is directed.
“Section 153 (1) (XLV11) of the Summary Jurisdiction (Offences) Act, therefore, does not proscribe (make illegal) transgender dressing per se (where such conduct is not for an improper purpose).It proscribes such conduct only when the purpose of such conduct is improper”.
But the Chief Justice noted that counsel for the applicants had submitted that, insofar as Section 153 (1) (XLV11) proscribes trans-sexual dressing, in contradistinction to any other form of conduct for criminality, where the purpose is improper, it discriminates against persons on the basis of their gender, in contravention of Article 149 (2) of the Constitution; and also violates their right to freedom of expression, under Article 146 (1) of the Guyana Constitution, to express their sexual preference by mode of dressing.
A perusal of Section 153 (1) (XLV11) shows that, as far as the conduct of dressing by attire is concerned, Section 153 (1) (XLV11) is directed against the conduct of both male and female persons. It prohibits both male and female persons from wearing the attire of the opposite sex in a public way or place, and for an improper purpose.
The applicants referred to in this decision, according to the Chief Justice, are Quincy Mc Ewan, Seon Clarke, Joseph Fraser, Seyon Persaud and not the fifth applicant, Society Against Sexual Orientation Discrimination (SASOD).
The fifth-named applicant had no locus standi as an applicant in this matter, since SASOD could not represent the first to the fourth-named applicants, who brought this (motion) in their own names as the persons who were personally aggrieved.
“There is simply no room for a representative applicant when the persons who have been aggrieved have themselves instituted proceedings on their own behalf. The fifth named applicant was improperly joined as an applicant, and must be struck out. The court so orders.
“There will be costs in the sum of $15,000 to each of the applicants (excluding the fifth named applicant). There will be normal costs to the State against the fifth named applicant in the sum of $5,000.”
At the conclusion of the ruling, Attorney-at-Law Mr. Gino Persaud, for the applicants, commented: “We are disappointed with the ruling, and feel confident about opening it to the scrutiny of appellate courts. A lot is at stake here in relation to the dignity of all Guyanese.
“The case raises important  questions about the appropriateness and  constitutional validity of  colonial vagrancy laws like the cross dressing law; and the meaning of the constitutional provisions – both older provisions like savings law clauses and newer guarantees like equality.
“These are precisely the kind of questions of public and real significance that appellate courts should address, and are accustomed to dealing with.
“The legal team intends to appeal the ruling, and looks forward to presenting these arguments before the Court of Appeal and, if needed, the Caribbean Court of Justice.
“This is the first stage of the litigation process, not the end. Our system always contemplates further stages.”
The Attorney General was represented in this matter by Mr. Kamal Ramkarran.