CCJ strikes out Guyana’s cross dressing law

A Guyanese law criminalizing the appearance in public of members of one gender while dressed in the clothes of the opposite gender for ‘improper purpose’ has been struck out.

A panel of Justices from the Caribbean Court of Justice (CCJ), including the Honourable President, Justice Adrian Saunders and Justices Jacob Wit, Winston Anderson, Rajnauth-Lee and Denys Barrow, struck out the law as being unconstitutional, after both the Guyana High Court and the Court of Appeal had upheld its constitutionality previously.

According to an official release from the CCJ, Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud, who identify as transgender, had been arrested in February 2009 by the Guyanese police.

At the time of the arrest McEwan had offended the law by wearing a pink shirt and a pair of tights, and Clarke was wearing a skirt and slippers. Fraser and Persaud were arrested a little while later, and both were dressed in skirts, and had donned wigs.

All four were kept at the police station over the weekend, and were not given a reason for their detainment, until they were informed that they were charged under the above-mentioned law at the Georgetown Magistrate’s Court.

They had all pled guilty to the charges, and three were charged GY$7,500, or around EC$97. Fraser was fined GY$19,500, or approximately EC$252.

It was said that, “Upon imposing the sentence, the 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.”

The Society Against Sexual Orientation Discrimination (SASOD) worked alongside these four accused, turned appellants, in the Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) v The Attorney General of Guyana, case.

The appellants took their case to the final court of appeal for Guyana, the CCJ, after it was denied by the lower courts. There they argued that the law violated their constitutional rights of equality and non-discrimination, and freedom of expression.

There were a number of considerations by the Justices in striking out the law, including, “A majority of the judges, President Saunders and Justices Wit and Barrow, 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.”

However, all of the Justices were in agreement that, given the time that the law was implemented, which was in 1893, “this law was from a different time and no longer served any legitimate purpose in Guyana.”

Justice Saunders stated in the ruling that law and society are dynamic and not static, and “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 court also deemed the law to be ‘unconstitutionally vague’ and thereby not affording the right to protection of the law.

They stated that the comments made by the magistrate after the four were convicted were inappropriate, noting, “judicial officers may not use the bench,” to convert persons from one religion or belief to another, “whether before, during or after the conclusion of court proceedings.”

The CCJ ordered that Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act be struck out, and that costs be paid to the appellants.