CCJ could be next stop for "improper purpose" cross-dressing case

The Caribbean Court of Justice is now expected to be the next stop after an appeal made by lesbian, gay, bi-sexual and transgender (LGBT) advocates to seek clarification on Guyana’s cross dressing law was dismissed on Monday by the Appeal Court.

The ruling was handed down by Chancellor of the Judiciary, Carl Singh, acting Chief Justice Yvonne Cummings-Edwards and Justice Brassington Reynolds.

In 2013 then acting Chief Justice Ian Chang ruled that cross dressing in Guyana was legal, once not done for “improper purposes”. That ruling clarified that the expression of one’s gender identity as a transgender person is not in and of itself a crime.

However, the an appeal was made by Gulliver McEwan, Angel Clarke, Peaches Fraser and Isabella Persaud and the Society Against Sexual Orientation Discrimination (SASOD) seeking clarification on what constituted “improper purpose”.

The appellants contended that this 19th century “vagrancy law” was hopeless vague, amounts to sex/gender discrimination” because it is based on sex-role stereotyping and has a “disproportionate impact” on trans persons.

In handing down the ruling, the Court of Appeal relied on the earlier reasoning of Chang, and held that the section in question does not make the wearing of specific attire a “criminal offence” but only targets clothing when worn for an improper purpose in public.

In referencing a hypothetical case, Singh explained that if a man dresses as a woman, lures a taxi driver and eventually robs said taxi driver, then the purpose of that individual cross dressing could be consider improper.

However, lead counsel for the appellants, Arif Bulkan pointed out after the ruling that this reasoning is flawed since no charges could be laid against the individual for cross dressing. Rather, the criminal offense of robbing the taxi driver is what would be examined.

Bulkan, who expressed disappointment in the ruling, also explained that what the judgment allows, is for “improper purpose” to be interpreted by magistrates in every case dealing with cross dressing, and this could lead to discrimination.

The appellants have since confirmed that they intend to appeal this ruling to the Caribbean Court of Justice (CCJ).

Meanwhile, SASOD in a statement today expressed that 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.

The human rights group pointed out that Guyana’s Constitution has the most robust provisions related to equality found in Anglophone Caribbean constitutions, largely through amendments made in 2003. As such, the group noted that 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.

SASOD also referenced Concluding Observations from the United Nations Committee on Economic, Social and Cultural Rights (CESCR) on Guyana’s recent review on September 28 – 29, 2015, which recommended that “the State Party repeal the criminalization of … cross-gender dressing”.