The Court of Appeal yesterday dismissed an appeal by a group of transgender persons who contended that the cross-dressing law discriminates against them and violates equality provisions in the constitution.
In a unanimous decision, acting Chancellor of the Judiciary Justice Carl Singh, acting Chief Justice Yonette Edwards-Cummings and Justice Brassington Reynolds upheld the ruling of former acting Chief Justice Ian Chang that both men and women are free to cross-dress in public once the reason for doing so is not an “improper purpose.”
Appellants Quincy McEwan, known as Gulliver, Seon Clarke, known as Angel Clarke, Joseph Fraser, also known as Peaches Fraser, and Seyon Persaud, also known as Isabella Persaud, had appealed the initial ruling to seek clarity on what constituted “improper purpose.”
They appealed in part because of what they referred to as the inherent uncertainty in the terminology employed in the statute. Their contention too was that it contravenes the prohibition of discrimination and the guarantees of equality and freedom of expression, under Articles 149 and 146 of the Constitution.
The applicants said that after yesterday’s decision, it is no clearer to them as to what constitutes “improper purpose.”
As a result, they have signalled their intention to further appeal the ruling before the Caribbean Court of Justice (CCJ).
In an oral delivery of the panel’s ruling yesterday morning, Chancellor Singh noted that it was not for the court to attempt a definition of a broad term. He stressed that in each case, it is for the magistrate to decide, on a case-by-case basis, based on the facts before him or her, whether a man wearing female clothing was for “an improper purpose,” and vice versa.
The quartet had been charged and fined back in 2010 for wearing women’s clothing for an improper purpose under Section 153 (1) (XLVII) of the Summary Jurisdiction (Offences) Act Chapter 8:02.
At the time, then Chief Magistrate Melissa Robertson had told them that they were “confused” and should “go to church and give their lives to Christ.” They subsequently applied to the High Court seeking a declaration that such statements from the bench disregarded their rights to freedom of thought and religion and violated the constitutional declaration that Guyana is a secular state.
Section 153 (1) (XLVII) makes every man who appears in “female attire” and every woman who appears in “male attire,” in any public way or public place, “for any improper purpose,” liable to a fine not less than of $7,500 or more than $10,000.
Chancellor Singh emphasised in the ruling that the term “improper purpose,” in Section 153 (1) (XLVII), was used broadly and can apply to an infinite variety of circumstances, but that it does not create such a level of vagueness that a court cannot decide on a case-by-case basis.
In reaching its decision, the court relied on the Hong Kong Court of Appeal case of Shum Kwok Sher and Hksar, which referenced the majority ruling in Sunday Times vs United Kingdom, where it was stated that “whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”
The Hong Kong case had also considered the ruling in another case Sabapathee vs The State, where the Privy Council stated that “The fact that a law is expressed in broad terms does not mean that it must be held to have failed to reach the required standard. In an ideal world it ought to be possible to define a crime in terms which identified the precise dividing line between conduct which was, and that which was not, criminal. But some conduct which the law may quite properly wish to prescribe as criminal may best be described by reference to the nature of the activity rather than to particular methods of committing it. It may be impossible to predict all these methods with absolute certainty, or there may be good grounds for thinking that attempts to do so would lead to undesirable rigidity. In such situations a description of the nature of the activity which is to be penalized will provide sufficient notice to the individual that any conduct falling within that description is to be regarded as criminal. The application of that description to the various situations as they arise will then be a matter for the courts to decide in the light of experience.”
The state was represented by attorney Kamal Ramkarran, while the appellants were represented by attorneys Miles Fitzpatrick SC, Nigel Hughes, Gino Persaud and Dr Arif Bulkan.
Meanwhile, a statement issued by the Society Against Sexual Orientation Discrimination (SASOD) after the ruling quoted Mc Ewan as saying that she was disappointed with how the court dealt with the uncertainty of the term ‘improper purpose.’ “Transpeople are no clearer after today on what this means than before the Court of Appeal’s decision,” she said.
Twinkle Bissoon, a transwoman activist who has been repeatedly barred from court for dressing in female clothing, was also quoted in the statement as saying, “the ruling of the Court of Appeal leaves the application of the law to be done on a case by case basis and is very problematic because it allows police officers and other law enforcement to interpret the provisions to give effect to their own prejudices.”
Danuta Radzik, a human right’s activist, added “it is ridiculous to expect that every time a transwoman in female attire goes to the magistrate’s courts that we have to go through this charade. Parliament needs to repeal these discriminatory laws so that the human rights of all citizens can be respected.”
According to SASOD, although the Guyana Constitution is unique in the Caribbean in that Article 39(2) obligates the court to pay due regard to international human rights law in interpreting the fundamental rights provisions, the Court of Appeal failed to address any of the arguments of the appellants which addressed the discriminatory nature and effects of the cross-dressing prohibition on trans persons. “Guyana’s Constitution has the most robust provisions related to equality found in Anglophone Caribbean constitutions, largely through amendments made in 2003. These provisions include a positive duty on the state to secure equality, especially for disadvantaged groups, and a wide anti-discrimination provision that prohibits discrimination on the grounds of sex and gender,” it said.
Against this background, it noted that Bulkan, a co-coordinator of the Faculty of Law UWI Rights Advocacy Project (U-RAP), said that the case raises fundamental questions about the existence of constitutional savings clauses and the protection they give to colonial laws which could never be enacted today. As a result, he further said the judgment underscores the importance of the CCJ as a final court where the issues that strike at the heart of justice for marginalized communities can be fully considered.
The statement also said that SASOD’s Managing Director Joel Simpson was surprised that the court completely ignored in its oral decision the very important question of SASOD’s standing as a party to the case, which was one of the grounds of the appeal. “Standing of organizations is a critical issue across the Caribbean where stigmatized persons need the cover provided by rights groups to challenge discrimination,” he was quoted as saying.
