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Guyana: Ruling Limits Old Law

(Sept. 18, 2013) On September 6, 2013, the Acting Chief Justice of the High Court of Guyana, Ian Chang, ruled that cross-dressing can be deemed a criminal offense only if engaged in for improper purposes such as prostitution, not “for the purpose of expressing or accentuating his or her personal sexual orientation in public.” (Guyana Judge Rules That Cross-Dressing Is Not a Crime Unless It’s Done for ‘ImproperPurpose,’ FOX NEWS (Sept. 8, 2013), ).) Chang’s decision was based on his interpretation of an 1893 law, the Summary Jurisdiction (Offences) Act, which was adopted when Guyana was still a British colony. (Antoine Craigwell, Letter to the Editor, Cross-Dressing in Guyana: Is the Supreme Court Courageous? KAIETEUR NEWS (Feb. 26, 2010).)

The relevant section of the Act, under the heading “minor offences, chiefly in towns,” imposes a fine for:

153. (1) …

(xlvii) being a man, in any public way or public place, for any improper purpose, appears in female attire; or being a woman, in any public way or public place, for any improper purpose, appears in male attire… . (Summary Jurisdiction (Offences) Act, Law No. 17 of 1893 (as last amended by Law No. 10, 1998), LAWS OF GUYANA, Ch. 8:02, Ministry of Legal Affairs website [scroll down to p. 3 of Laws to find Ch. 008:02].)

Other actions deemed to be criminal offenses under section 153(1) are, for example, flying a kite in a city, grooming an animal on a public way or place, and beating a mat in a public way or place during the daytime, and loitering in or near a shop. (Id.; Press Release, High Court Hearing on Guyana’s Cross Dressing Law Adjourned to June 4, SASOD (May 16, 2013).)

Four transgendered men, Quincy McEwan, Seon Clarke, Joseph Fraser, and Seyon Persaud, together with the Society Against Sexual Orientation Discrimination (SASOD), accused Melissa Robertson, then an acting Chief Magistrate, of being “improperly influenced by irrelevant considerations” when they appeared before her in 2009, charged and fined under section 153 with wearing female attire. She advised them “that they were confused and should give their lives to Jesus Christ.” (Magistrate’s ‘Come to Jesus’ Appeal to Transgender Men Not Discriminatory, STABROEK NEWS (Sept. 10, 2013).)

The men subsequently challenged the constitutionality of section 153(1)(xlvii) and sought a court declaration that Robertson had “discriminated against them on the basis of religion, and violated a fundamental norm of the Cooperative Republic of Guyana as a secular state.” (Id.) Freedom of religion is protected under article 145(1) of Guyana’s Constitution. The men and SASOD also filed a Notice of Motion, seeking declarations that the section 153 criminalization of cross dressing contravenes constitutional guarantees of equality and freedom of expression (art. 146) and prohibiting discrimination, including on the basis of gender (art. 149). (Id.; Constitution, LAWS OF GUYANA, Ch. 1:01, Ministry of Legal Affairs website [scroll down page to find Ch. 001:01].)

Justice Chang ruled that Robertson’s advice to the men did not constitute discrimination on the basis of religion and also determined that they had not proved that the section 153 ban amounts to discrimination on the basis of gender. (Guyana Judge Rules That Cross-Dressing Is Not a Crime Unless It’s Done for ‘Improper Purpose,’ supra.) In connection with his decision to refuse the declaration sought apropos of Robertson, Change, stated, “At the highest, the Chief Magistrate can be accused of proselytising. But proselytising does not constitute a hindrance to freedom of thought and of religion.” (Magistrate’s ‘Come to Jesus’ Appeal to Transgender Men Not Discriminatory, supra.) Chang further opined that it did not seem that section 153 was challengeable on the grounds of being inconsistent with the Constitution and that the legislature would have to take action in order for it to be made invalid. (Id.)

The Justice only accepted the men’s claim that the police had not informed them of the reason for their arrests and detention prior to charges being brought. “As a result, … their constitutional right to be informed of the reason for their arrest as soon as reasonably practicable under Article 139(3) of the Constitution was deliberately denied,” the Justice ruled, and he awarded each of the men $40,000 in damages. (Id.) In addition, the High Court held that SASOD had no standing in the case because the others had brought suit “in their own names as the persons who were personally aggrieved.” (Press Release, Constitutional Court Rules Cross-Dressing Is Not a Crime If Not for “Improper Purpose” – Rights Groups Plan Appeal on Dubious Decision, SASOD website (Sept. 8, 2013).)

The men and SASOD plan to appeal the ruling. The issues they expect to argue may include the standing of SASOD, which contends that “[t]he Guyana Constitution was the first in the English-speaking Caribbean to give ‘an association acting on behalf of its members’ the right to bring a claim before the Constitutional Court that there has been a breach of the guaranteed fundamental rights.” (Id.)

Guyana has a three-tier court system, comprising the Magistrate’s Court, the High Court of the Supreme Court of Judicature, and the Guyana Court of Appeal of the Supreme Court of Judicature. (Legal System, Ministry of Legal Affairs website (last visited Sept. 11, 2013).)