By Alissa Trotz
Alissa Trotz is editor of the In the Diaspora Column
On February 19th a motion was filed in Guyana’s high court to challenge a law that criminalized cross-dressing, and under which seven persons were arrested in 2009 and charged with wearing female attire. Four – Quincy McEwan, Seon Clarke, Joseph Fraser and Seyon Persaud – have brought the constitutional challenge, with the support of the Society Against Sexual Orientation Discrimination (SASOD) and a group of lawyers, including from the recently established University of the West Indies Rights Advocate Project (U-RAP). Sunday’s Trinidad Express cites local gay, lesbian, bisexual and transgender advocates who say this case will have far-reaching effects region-wide. It brings to mind what nearly came to pass in St. Vincent last year, where attempts at constitutional reform would have enshrined individual freedoms and social justice for all, while at the same time outlawing gay marriage.
Let me begin by saying that I categorically believe that love and desire can never be legislated. Whether I love women or men is for no-one to decide but me. And it is important for my children to learn this as they grow up into loving, sensual, caring adults. I am also a parent whose children always say they see no difference between what men wear and most of their mother’s wardrobe. So what constitutes men’s clothes and women’s clothes? If I purchase a shirt from the men’s section of a store and wear it in public, am I in violation of the law? It seems to me that one way in which women might show their support for this motion is to turn up at court in ‘men’s’ clothes when the case is called and present themselves to the police for arrest.
As I read the newspapers I thought that as usual, it’s not a big one who is being arrested here. Why is it the law seems to end up being applied more drastically to those with less resources? This sense was only reinforced when I went to look up the Act itself.
The law under which the seven men were charged (Summary Jurisdiction (Offences) Act Chapter 8:02, Section 153(1)(xlvii)) comes from a section relating to various minor offences, chiefly in towns. These include: beating a mat in a public way or public place in any town between 7 a.m. and 6 p.m.; playing at any game or flying a kite in any public way (in the case of kite-flying there are exceptions for portions of the beach in Georgetown and Berbice); leading cattle in a public way; rollerskating on the road. It is not that they are invoked uniformly and without prejudice – if that were the case more than half the country’s population, including our law enforcement officials, would be before the courts – but that these minor offences can be and are selectively applied. So if those charged with upholding the law can pick and choose, we need to ask ourselves how the selective application reveals particular biases in a society at any one time. The homophobia that prompted these charges is clear, but it would be a mistake to see homophobia as existing on its own, a point SASOD made eloquently a year ago when it noted that “when on occasion the laws are arbitrarily invoked they disproportionately affect the poor and the powerless” (Stabroek News, February 15, 2009). When the seven persons were first arrested last year, one newspaper reported that they stated they were on their way to the National Cultural Centre to see the play ‘Nothing to Laugh About’, which apparently made fun of cross-dressing. Yet no-one from the production was arrested, even though they were on a public stage in a theatrical production designed to gain maximum audiences and attention.
According to Tracy Robinson, U-RAP member and senior lecturer at the Cave Hill Campus of the University of the West Indies, we need to recognize that “the law offers the greatest protection in relation to serious offences. Minor offences give the police and magistrate significant opportunities to harass citizens who are already disenfranchised, and to police those who have little choice but to inhabit public spaces. Few can hire lawyers.” A good example of the distance between the law and contemporary socio-economic realities is section 161, which falls under provisions relating to Indecency and Obscenity, and which criminalizes anyone who bathes in public insufficiently clothed. It is not difficult to imagine who would be targeted were such a law to be aggressively enforced today, namely all those who fetch buckets and bathe at standpipes in a country with chronic water problems and where since the late 1970s only those who can afford pumps and overhead tanks have a guaranteed water supply in houses.
To understand the full magnitude of these charges, it is also important to bring a fuller historical perspective to the discussion, since these laws were developed when the Caribbean was the colonial property of Europe. In Trinidad and Tobago and Jamaica, historians have shown the emergence of elaborate legal and punitive systems intended to control slaves. These systems would be reworked in the post-emancipation period to limit freedom. For instance, economic historian Rawle Farley has shown how collective purchases of lands by the newly emancipated (the villages of Buxton, Victoria, Queenstown among others) would lead to the passage of increasingly prohibitive land laws which raised prices and then outlawed collective purchases, effectively arresting the most extensive free village movement in the Caribbean. What we see here is the intricate relationship between law and the establishment of discipline and colonial order.
We can discern these colonial traces in the legislation today. Section 160 (under Nuisances relating to Indecency and Obscenity) prohibits anyone (other than a child under the age of five years) from appearing in public without being sufficiently and decently clothed, but completely exempts “any labourer upon any plantation or estate working in the trenches whilst actually so employed, nor whilst going to and returning from the field, nor whilst engaged in labour in the field.” It is estate production and the rights of the planter class to a guaranteed workforce, not the rights of the labourer, that are being protected through this original exemption.
With this in mind, we should recognise the ‘Minor Offences, Chiefly in Towns’, where the cross-dressing laws are to be found in the current legislation, as the product of old vagrancy laws in the late 19th century designed to restrict access to public spaces by the working poor and to control the behaviour of black and brown people in the urban centres to which they were moving in search of livelihoods. In her book, ‘Order and Place in a Colonial City,’ which looks at Georgetown in the late nineteenth, early twentieth century, historian Juanita de Barros shows how local political and economic elites saw urban markets and streets and those who peopled them as filthy, threatening and dangerous. For the urban poor, on the other hand, public spaces were lively sites of sociality, exchange, livelihood and recreation. They were also spaces of protest against living conditions, as would be expressed in the Georgetown Riots of 1905 that Walter Rodney has documented. These opposed views would express themselves in the passage of all kinds of laws that sought to regulate poor people in public space. Women were also targeted for anti-social behaviour, from the so-called unruly African women of the Centipede gangs of Tiger Bay to the Indian milk vendors, the majority of whom were Indian women up to at least the 1920s.
The Caribbean is replete with historical examples of such struggles. How many of us know that carnival was once banned in Trinidad and Tobago, or that all kinds of laws were passed to outlaw it and other public processions? Researchers have shown the ways in which jamette (urban working-class revelers) women were frequently arrested and jailed, their behaviour seen as vulgar and unruly. What these clashes revealed was the refusal of working-class women and men of the time to conform to elite perceptions of orderliness or to remain in their places, and the jamette performances as a form of public social protest against the order of the day.
I find it useful to think about the cross-dressers in Guyana in light of this tradition of public protest, their refusal to remain indoors a sharp rebuke to all of us who continue to inhabit colonial mindsets and to police ourselves and each other as a result. It is an important step to defend their rights, and we should all support them and the legal team assembling their defence. But it is another step, as fundamental as the first and even more radical, to move past the us and them mentality that has become so ingrained in Guyanese culture and that allows some letter writers, online bloggers and so many of us to ridicule the cross-dressers, to deny them the rights we want for ourselves, or to see them as totally different from us. We should recognize their court challenge for what it is, a hugely courageous action that has implications for all of us as Guyanese and Caribbean people in our efforts to build a just and equitable society.