…CCJ rules for transgender Guyanese women

THE Caribbean Court of Justice (CCJ) has ruled that the criminalisation of cross-dressing in Guyana is “unconstitutional”, leading the Society Against Sexual Orientation Discrimination (SASOD) to hail the decision as a “monumental victory for Guyana”.

The matter, which had come up under the former People’s Progressive Party Civic administration, was outsourced to the chambers of Cameron and Shepherd and was represented by attorneys Selwyn Pieters and Kamal Ramkarran.

SASOD now wants training to commence in Guyana for the country’s law enforcement; judiciary and social society, to guard against discrimination against those who will now be exercising their freedom to cross-dress.

On Tuesday, the CCJ, Guyana’s highest court, made the announcement stating that the law, Section 153(1) (xlvii) of the Summary Jurisdiction (Offences) Act which makes it criminal, is to be “struck from the laws of Guyana.”

The decision comes following the conclusion of the case of Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and SASOD versus the Attorney General of Guyana.
The case has its origin in the February 2009 arrest of the four appellants, who identify as transgender persons and were detained, convicted and punished for cross-dressing in public. At the time of the arrest, McEwan was dressed in a pink shirt and a pair of tights and Clarke was wearing slippers and a skirt, while Fraser and Persaud were dressed in skirts and were wearing wigs.

While in custody, Fraser was denied legal counsel, medical attention, a telephone call and a statement. Also, all four spent the entire weekend in police custody without any explanation. They all pleaded guilty to the cross-dressing charge and McEwan, Clarke and Persaud were fined G$7,500, while Fraser was fined G$19,500.

With the assistance of SASOD, proceedings were brought in the High Court of Guyana challenging the law on several grounds, including that it is discriminatory and inconsistent with the Constitution of Guyana.

Both the High Court and the Court of Appeal in Guyana had denied the constitutional challenges, after which the appellants took their case to the CCJ. The CCJ panel, comprising of the Honourable President Justice Saunders and Justices Wit, Anderson, Rajnauth-Lee and Barrow, agreed that the law was from a different time and no longer served any legitimate purpose in Guyana.

“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,” Justice Saunders stated.

When the Guyana Chronicle contacted Founder and Co-Chairperson of SASOD Joel Simpson, he relayed the general feeling of the body on the ruling. “The community of trans persons, gender non-confirming persons; LGBTQ Guyanese and Caribbean people are elated by this victory. We’re astonished that we won on all grounds that we claimed, every single one,” he said, adding:

“There’s a lot of jubilation and plans of having community celebrations as you can imagine. This has been a long battle. These crackdowns started in February 2009…and we filed the case later in February 2010. So, it’s a court battle over eight years and even longer if you think about the initial violation. [It makes] people excited; they’re in jubilation.”
Simpson said that those in the community will now be exercising their right to cross-dress as they please and with a new level of comfort, knowing that they cannot be prosecuted by law.

Questioned whether SASOD intends to pursue other laws they believe are contradicting to human rights, Simpson said that it is too soon for him to make a pronouncement as focus is now being placed on the implementation of the decision.

Added to this, the body wants to ensure that even as the CCJ ruling takes effect, members of the LGBTQ community do not continue to face discrimination regarding cross dressing.
Simpson made reference to the CCJ’s report which stated that the magistrate of the Georgetown Magistrates’ Court, upon imposing the sentence to the individuals, had told them to “go to church and give their lives to Jesus” as they were confused about their sexuality.

Regarding this, the CCJ remarked: “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.”

Simpson added his stance, saying: “[Moving forward] means doing things like training police officers, training judicial officers because there was a very inappropriate remark made by then acting Magistrate…the court said that was very inappropriate. You can’t use the bench to preach your religion. So, we recognise too, that when people are the victims of hate crime they must be able to go to court and access justice without being ridiculed for who they are.

He stated further: “[There should also be training for] persons involved in the social sectors because where persons suffer the most discrimination is at the hands of family, school, faith group, social institutions, every-day institutions.”

SASOD also hopes that the CCJ ruling will put an end to the “arbitrary rejection” by some magistrates in allowing crossed-dressed persons to enter their courtrooms.

Apart from Section 153(1) (xlvii) that the CCJ ordered to be struck from the country’s laws; the CCJ has stated that costs are also to be awarded to the appellants in the appeal before the CCJ and in the courts below.