THE Caribbean Court of Justice (CCJ) will today hear oral arguments in the appeal of four transgender Guyanese women who are challenging the constitutionality of an 1893 post-slavery vagrancy provision, under which they and three others were detained, convicted and fined by the then acting chief magistrate following their February 2009 arrest here.
The four transgender women Gulliver (Quincy) McEwan, Angel (Seon) Clarke, Peaches (Joseph) Fraser and Isabella (Seyon) Persaud filed their case in 2010. They were arrested and convicted in 2009 under Part V: Offences against Religion, Morality & Public Convenience of Guyana’s 1893 Summary Jurisdiction (Offences) Act.
Section 153(1) (xlvii) makes it an offence for a man “in any public way or public place, for any improper purpose” to appear in female attire, or for a woman, “in any public way or public place, for any improper purpose” to appear in male attire. Other offences in the Act include roguery, practising obeah and witchcraft, flying a kite, beating a mat and grooming an animal on a public way.
“While outlawing cross-dressing for both men and women, these small charges disproportionately affect and criminalise transgender women as they inhibit their freedom of expression in public. The 19th century colonial law contravenes Guyana’s constitution, which affords fundamental rights and freedoms to the individual. This case strikes at the heart of plantation colonial rule that sought to restrict the freedom of the individual and promote racial, religious, ethnic and social division amongst Guyanese,” a statement from the Society Against Sexual Orientation Discrimination (SASOD) said Saturday.
The quartet are claiming that the 1893 law itself is unconstitutionally vague, engages in sex stereotyping, and disproportionately affects transgender and gender-non-conforming persons. They also argue that the conduct of state officials was unconstitutional.
At stake also is the interpretation of sections of the Guyana Constitution and how it applies international law to human rights. Of particular relevance to the rest of the Caribbean is the question of whether the law is “saved” from constitutional challenge.
SASOD said the litigants will argue that the constitution’s “savings law clause” does not prevent the court from reviewing this colonial law.
“The four litigants involved in the case have already had some wins. There was an important step forward in 2013 when Guyana’s then Acting Chief Justice, Ian Chang, ruled that dressing to express one’s identity is not a crime. Unfortunately, his ruling did not resolve the uncertainty surrounding “an improper purpose.”
SASOD also pointed to the Judicial Service Commission’s statement that the practice of a magistrate who repeatedly refused to allow transwomen with matters before him to enter his courtroom dressed as themselves, violated their right to access the courts and access justice.
SASOD and the Guyana Trans United (GTU) which was formed by McEwan, the first-named litigant, now its director, are the two non-governmental organisations integrally involved in the case. The organisation noted that the GTU works to empower the Guyanese trans community to advocate for their human rights and participate as equal citizens in decisions which affect their lives.
SASOD, which has been in existence for some 15 years, works to end discrimination based on sexuality and gender identity here. It was SASOD that responded to the initial arrests and was originally also an applicant in the proceedings.
“One of the policy matters before the CCJ is the decision of the trial judge to strike SASOD out of the case as this precedent may impact marginalised communities’ access to justice,” the statement said.
Meanwhile, Senior Counsel Douglas Mendes will argue the case for the quartet. He is leading a team of pro-bono lawyers from Guyana, Jamaica and Trinidad and Tobago, which was convened by the Faculty of Law UWI Rights Advocacy Project (U-RAP). The other lawyers are Nigel Hughes and Ms. Mishka Puran (Guyana), Clay Hackett (Trinidad and Tobago) and Isat Buchanan (Jamaica).
U-RAP’s mission is to promote human rights and social justice in the Caribbean in collaboration with Caribbean lawyers, civil society organisations and its students.
The attorney general will be represented by Solicitor-General Kim Kyte-Thomas, Guyanese-Canadian attorney Selwyn Pieters, and Kamal Ramkarran.