The Caribbean Court of Justice (CCJ) has ruled that the law in Guyana, which makes it a criminal offence for a man or a woman to appear in a public place while dressed in clothing of the opposite sex for an “improper purpose”, is unconstitutional.
In a ruling handed down this morning, the Court said that the law, Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, is to be struck from the laws of Guyana.
The case was first heard in the local Courts but eventually made its way to the Caribbean Court of Justice after the local Courts found that it would be against the law for a member of one sex to dress in clothing of the other sex for an improper purpose.
The case had its genesis in the arrest of transgenders Quincy McEwan, Seon Clarke, Joseph Fraser and Seyon Persaud who had been arrested and charged by the Police for cross dressing.
They were supported by the Society Against Sexual Orientation Discrimination (SASOD. The appellants took their case to the CCJ arguing that the law violated their constitutional rights to equality and non-discrimination and freedom of expression, thereby offending the rule of law.
According to a statement from the Court, it first examined the historical context surrounding the law, which was enacted in Guyana in 1893, as part of the vagrancy laws of the post-emancipation era.
The panel, comprising of the CCJ President Mr. Justice Saunders and Justices Wit, Anderson, Rajnauth-Lee and Barrow, agreed that this law was from a different time and no longer served any legitimate purpose in Guyana.
Justice Saunders reiterated, “Law and society are dynamic, not static. A Constitution must be read as a whole. Courts should be astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful to its essence and its underlying spirit. If one part of the Constitution appears to run up against an individual fundamental right, then, in interpreting the Constitution as a whole, courts should place a premium on affording the citizen his/her enjoyment of the fundamental right, unless there is some overriding public interest”.
The CCJ’s statement also said that it was also noted that Guyana’s Constitution protects its people from discrimination and states that no one is to be treated in a discriminatory manner by any public office or authority.
The Court held that the law was also unconstitutionally vague, violated the appellants’ right to protection of the law and was contrary to the rule of law.
A majority of the judges, President Saunders and Justices Wit and Barrow, also upheld the appeal on the basis that the law resulted in transgendered and gender nonconforming persons being treated unfavourably by criminalising their gender expression and gender identity.
Justice Anderson in his judgment commented that the law wrongly sought to criminalise a person’s state of mind as there is no test to determine what is an “improper purpose”.
Justice Rajnauth-Lee’s opinion focussed on the vagueness of the law in question. The CCJ also found that the remarks made by the Magistrate, immediately after sentencing the appellants and while the Magistrate was still sitting, were inappropriate.
The Magistrate had advised the four transgenders during the case to go to church and give their lives to Jesus Christ and told them that they were all confused about their sexuality.
According to the Court, “judicial officers may not use the bench to proselytise, whether before, during or after the conclusion of court proceedings. Secularism is one of the cornerstones upon which the Republic of Guyana rests.”
The Court ordered that Section 153(1)(xlvii) be struck from the laws of Guyana and that costs are to be awarded to the appellants in the appeal before the CCJ and in the courts below.
The full judgment of the Court and a judgment summary are available on the CCJ’s website at www.ccj.org.