Lawyers for both the government and the applicants seeking to have the laws against cross-dressing invalidated yesterday completed their arguments and acting Chief Justice Ian Chang is now expected to rule on the case at a later date.
Attorney Arif Bulkan, who appeared alongside Senior Counsel Miles Fitzpatrick and attorneys Nigel Hughes and Gino Persaud, made the final arguments on behalf of the Society Against Sexual Orientation Discrimination (SASOD) and Quincy McEwan, Seon Clarke, Joseph Fraser and Seyon Persaud, the four men who were fined in 2009 on a charge of wearing female attire. Attorney Kamal Ramkarran, who is counsel for the Attorney General, who is listed as the respondent in the matter, then responded to the arguments made by Bulkan.
The constitutional motion, filed in 2010, is seeking a declaration that the offence affords different treatment to different persons because of non-conformity to stereotypes based on sex in breach of the prohibition of discrimination on the grounds of sex and gender contained in Article 149(1) of the Constitution. It also seeks a declaration that the said offence, by authorising different treatment based on sex stereotypes, contravenes the guarantee of equality before the law in Article 149D of the Constitution; and a declaration that the offence, by preventing persons from giving expression to their gender identity and dressing in conformity with their innermost beliefs, contravenes the guarantee of freedom of expression contained in Article 146 of the Constitution.
Bulkan argued that the case is much wider than the issue of gender as the law constitutes discrimination on the basis of sex. He said that the state telling men how to dress contravenes the constitutional right to freedom of expression.
The submission by the applicants states that section 153 (1) (xlvii) of the Summary Jurisdiction Act chapter 8:02 violates several provisions of the constitution, including the prohibition against discrimination on the grounds of sex and/or gender, the right to equal protection and benefit of the law and freedom of expression.
It is also stated that by virtue of its vagueness and uncertain scope, the law violates a fundamental tenet of legality and the rule of law, both of which are fundamental principles of the constitution as well as aspects of the law and democracy.
Purpose of law
The submission also states that the respondent has failed to discharge its burden in proving that section 153 (1) (xlvii) is reasonably required for a constitutionally stated goal. It contends that while the respondent alleges that the purpose of the section is to prevent solicitation for prostitution and to prevent the prevalence of men dressing like women to assist them in committing robbery, the respondent had failed to discharge the legal and evidential burden placed on it.
Further, the submission points out that solicitation for prostitution is already an offence and so is robbery and by extension attempted robbery. And as a result, it says there is no need for additional offences to address those situations and where the police encounter them they can arrest and charge the suspect with any of the standard existing crimes.
It also argues that the claim by the respondent that men dress like women to carry out robberies has no evidence to support it. “This rationale breaks down when one considers the likelihood of the reverse… do women dress like men for the purpose of solicitation and do they dress like men to commit robberies? These are wholly unsupportable contentions and given that the section criminalizes both male and female dressing in female and male clothing, respectively, this rationale is highly illogical,” the submission states.
Further, it argues that they have established a prima facie breach of their rights to equality and non-discrimination on the basis of sex and/or gender and freedom of expression because the law forbids all persons from expressing themselves through clothing of their own choice.
It adds that the law in question violates the principle of legality and by extension is contrary to the rule of law and democracy because it is vague and uncertain.
Category of sex
or gender
In response, Ramkarran said the Magistrate’s Court was the place to determine the facts that would “establish an improper purpose” as required by the section under challenge, “and which improper purpose was the main thrust of the law the applicants were attempting to have struck down.”
He added that an “improper purpose could only mean a purpose which was unlawful or contrary to public order, public safety or public morality and the improper purpose in the section had to be proved by the state beyond reasonable doubt in the Magistrate’s Court whenever someone was charged under the section being challenged.” He added that “any finding made by the Magistrate was subject to appeal if it was unreasonable in light of the evidence. The law therefore develops on the analysis of different fact situations at different times.”
Ramkarran also argued that the section challenged was not vague and cases decided by the Canadian Supreme Court do not require certainty but simply a standard outlining an area of risk which could allow for legal discussion and certainty was not required for the section not to be vague.
He further noted that the court should consider what breaches of the men’s fundamental rights as guaranteed by articles 138 to 151 of the constitution could be established and that evidence should have been led by the applicants firstly to show that a category of sex or gender different from male or female existed and the applicants were in that category. This, he said, was necessary to establish discrimination on the basis of sex and gender.
After listening to the arguments, Justice Chang adjourned the matter and notices will be sent to the lawyers informing them of the next date, when the decision will be handed down.
The historic motion also seeks a declaration that all criminal proceedings against the four men, who were arrested between February 6 and 7, 2009, based on the allegation of wearing female attire were unconstitutional, null, void and of no legal effect by reason of the contraventions of the rule of law and the explicit guarantees contained in Articles 1, 30, 139, 144, 149 and 149D of the Constitution.
They have also sought a declaration that Acting Chief Magistrate Melissa Robertson, in telling the four men during the course of the hearing in the Magistrate’s Court that they must attend church and give their lives to Christ, was improperly influenced by irrelevant considerations, discriminated against them on the basis of religion and violated a fundamental norm of Guyana as a secular state in breach of Articles 1, 40, 145 and 149(1) of the Constitution.
