Most, if not all citizens of this country when asked would say they wanted a more equal society which was not discriminatory. But there would be no unanimity about what that would actually mean in practice. Where social issues are concerned as opposed to political ones, religious beliefs in many cases are what inform local attitudes and underpin mores. But this is a secular society; it can be nothing else in a nation where a variety of religions exist side by side, each of which is entitled to practise freedom of worship. While they all agree on the moral fundamentals, they inevitably do not agree on every article of faith.
Nowadays it is the law and conventions on human rights as enunciated by the United Nations that apply in those societies which profess themselves adherents to liberal values, and which it is believed should apply across the planet. In a secular land such as this, they should obtain here too, and in a general sense they are accepted, as is the need for the rule of law. Nevertheless, we have evinced certain blind spots, and one of these is the law on cross-dressing.
In 2009 seven trans women had been convicted under the Summary Jurisdiction (Offences) Act because they were “men” dressed in “female attire” for an “improper purpose” in public. They had spent three nights in police detention in Georgetown following their arrest, and had been fined $7,500 each when they appeared before acting Chief Magistrate Melissa Robertson. The original act (different sections have been amended since) dates from 1893, and the attitudes which the cross-dressing portion of the law reflects clearly had not changed in more than a hundred years. Both the police who effected the arrests and the magistrate who imposed the sentences were operating a century behind the times.
The relevant portion of the act itself stipulates the sanctions to be applied when anyone “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…” It might be mentioned as an aside that no one in 2009 had looked at the statute in a long time, since it contained some other bizarre sections, including sanctions against discharging a cannon within 300 yards of a dwelling house and beating or shaking a mat in a public place between 7am and 6pm.
But at least the defect related to cross-dressing is about to be rectified. It took a court case brought in 2010 by four of those convicted the year before to set the process in motion. Their appeal was partly based on what they saw as the inherent uncertainty in the terminology of the law in question. They also said it contravened the prohibition against discrimination and the guarantees of equality and freedom of expression under Articles 146 and 149 of the Constitution. With regard to the Magistrate’s statements from the bench that they were “confused” and should “go to church and give their lives to Christ,” they asked the High Court to declare that these had ignored their right to freedom of thought and religion, and contravened the constitutional declaration that Guyana was a secular state.
Acting Chief Justice Ian Chang heard the case in the High Court, and he ruled that cross-dressing in and of itself was not a crime, but that this notwithstanding, the law was not discriminatory and did not have a disproportionate impact on trans and gender non-conforming persons. From here the matter went to appeal. Delivering that court’s judgement, acting Chancellor Carl Singh said that it was not for the court to attempt a definition of a broad term. It was for the magistrate to decide, on a case-by-case basis, according to the facts before him or her, whether a man wearing female clothing was doing so for “an improper purpose,” and vice versa. Following this decision, the applicants were reported as saying that it was still no clearer to them as to what constituted an “improper purpose.”
From there the matter went to the CCJ. Reading the ruling President Justice Adrian Saunders said that the law was unconstitutionally vague and that the appellants’ right to protection of the law had been violated and was contrary to the rule of law. As such the appeal was upheld. As we reported, all the justices of the court held that at the heart to the right of equality and non-discrimination lies a recognition that a fundamental goal of any constitutional democracy is to develop a society in which all citizens are respected and regarded as equal.
That decision came in November 2018, but thereafter nothing happened, and the coalition government made no move to bring the Summary Jurisdiction (Offences) Act into line with the CCJ’s ruling. But finally on Thursday Attorney General Anil Nandlall tabled a Bill in the House to delete the offending section. The explanatory memorandum says, it “signals the government’s commitment to fulfilling the human rights of all Guyanese. The Government rightly acknowledges and agrees with the CCJ that this archaic law, which is inconsistent with the Constitution of Guyana, has no social of legal purpose in a progressive society.”
Well this is progress, if somewhat belated after the passage of twelve years. But if the government is truly committed to “fulfilling the human rights of all Guyanese,” then it should be looking at a related matter, namely the decriminalising of homosexuality. The provisions on “buggery” as it is called in the legislation, are also of 19th century provenance, and while individual politicians on both sides of the aisle as well as the APNU+AFC party in its manifesto have committed in the past to ensuring that the LGBT community and other minority groups were not discriminated against, when it came to taking measures to make this a reality, nothing ever happened. It is thought that the unwavering opposition to this by large segments of the religious community is the main reason for the inaction, because of the influence this community might exercise on voting patterns.
In 2017 the coalition government attempted to sidestep its election promises by suggesting a referendum on decriminalising gay sex, which unsurprisingly caused a major outcry from the various rights groups, and which in turn caused the abandonment of the proposal. As for the attitude of the present government, four years ago Vice President Bharrat Jagdeo was reported as saying that on the basis of consultations, while Guyanese were opposed to being discriminated against in terms of employment or access to health care, they did not see the issue of decriminalising gay sex as a “fundamental right”. He went on to be quoted as commenting, “I don’t think the country, based on what our consultations show, is ready for same sex marriage, frankly speaking.” That is a confusion of objectives. What is being campaigned for by rights groups is the decriminalisation of relations between consenting same-sex adults, not any right to marriage.
However, he did say that the issue needed a bi-partisan approach, a position which presumably would be intended to mitigate what all sides see as the potential political repercussions. In fact a previous PPP/C government had committed at the UN Human Rights Committee’s Universal Periodic Review in 2010 to holding consultations on decriminalising same-sex relations, but these never took place. If the government has moved on the cross-dressing law now, it may be because that is less contentious than same-sex relations where the public is concerned, as well as the fact that it has cover from the CCJ decision.
However, discrimination is discrimination, and in a situation where we are committed to protecting people from this according to human rights principles, and where we are also bound by our own constitution to protect them in this regard, the government’s duty is clear. It cannot allow itself in a secular state to be inhibited by religious views of whatever kind to fail to implement human rights, and neither can it fail to implement those rights because many citizens do not regard them as fundamental. The public can be informed, consulted and if necessary, educated on the matter of rights, but it cannot decide to abrogate them for religious or other reasons.
Justice Saunders when giving the CCJ’s judgement in the cross-dressing case made reference to Article 149 (1) of Guyana’s constitution. It runs in part: “…no law shall make any provision that is discriminatory either of itself or in its effect; and no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.” The government as well as the opposition should take note.
