– trans litigants, Caribbean civil society groups welcome rulingIn a landmark decision which could set the stage for similar rulings, the Trinidad-based Caribbean Court of Justice (CCJ) has ruled in favour of striking down Guyana’s laws against cross-dressing, saying that the colonial-era law was unconstitutional. After gaining independence from Britain in 1966, Guyana adopted many colonial-era laws, including the 1893 Summary Jurisdiction (Offences) Act that effectively banned men or women from wearing clothing conventionally worn by the opposite gender for “improper purposes”.This section was never clearly defined leaving the door open for constitutional challenges which appellants Quincy “Gulliver” McEwan, Seon “Angel” Clarke, Joseph “Peaches” Fraser and Seyon “Isabella” Persaud mounted against their February 9, 2009 arrest, detention and conviction in Georgetown. After they appealed the law banning their mode of dress, former acting Chief Justice Ian Chang in September 2013 said that while the act of cross dressing was not a crime in itself, when for an “improper purpose”, it constitutes an offence. That ruling was also appealed at Guyana’s Appeal Court, but their case was similarly dismissed in 2017.The four persons who were born male and later opted for a transgendered way of life took their case all the way to the CCJ, citing their treatment was discriminatory, based on their position that the law violated their constitutional rights to equality and non-discrimination and freedom of expression. The Justices of the Trinidad-based authority agreed with the applicants. They, therefore, declared the 1893 law unconstitutional and ordered that it must be struck from the laws of Guyana, a decision which could unsettle many in religious circles.The four transgendered persons had all pleaded guilty to the cross-dressing charge and McEwan, Clarke and Persaud were fined $7500 whereas Fraser was fined $19,500. The then acting Chief Magistrate after imposing the sentence told them that they must go to church and give their lives to Jesus Christ, advising them that they were confused about their sexuality. The judicial officer was still on the bench at the time.In this regard, the CCJ Judges, citing Guyana’s Constitution, adopted a secular view regarding the Magistrate’s comments. “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,” a section of the CCJ’s release noted.The CCJ Judges further said that the cross-dressing section was “highly undemocratic”, making it now acceptable for men to dress as women in Guyana. The Court reasoned that the law violated freedom of expression guaranteed in Guyana’s Constitution.The CCJ panel comprised President Justice Adrian Saunders and Justices Jacob Wit, Winston Anderson, Maureen Rajnauth-Lee and Denys Barrow who “agreed that this law was from a different time and no longer served any legitimate purpose in Guyana”. The newly-appointed 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 Court was of the view that the law was also “unconstitutionally vague” and that it violated the appellants’ right to protection of the law and was contrary to the rule of law. A majority of the Judges, Justices Saunders, 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 was quoted as saying 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 Anderson in a separate decision noted that forms of dress by themselves are not objectionable and that “the essence of the crime … appears to consist … entirely of the state of mind of the persons engaged in otherwise perfectly innocent conduct”. He concluded that “our jurisprudence properly accepts that intentions by themselves are not constitutionally the proper subject of the criminal law”.The Society Against Sexual Orientation Discrimination (SASOD), which was initially struck out of the case by CCJ, has nevertheless been fully behind the legal change. Its Managing Director, Joel Simpson hailed the decision as “a clarion call to engage State actors on how the law engenders social and economic exclusion of disadvantaged groups.First-named litigant and co-founder of Guyana Trans United (GTU), McEwan, noted that “the whole trans community in Guyana is very happy”.“I have always said that we should know what the law expects of us before we act and I am pleased that the court agreed that this law is vague.”Persaud, another of the appellants, added, “We are always treated like trash.”Lead counsel Douglas Mendes, SC, described the judgment as one that “will be acknowledged as a significant contribution to Caribbean jurisprudence, especially because of its insistence on the need to give due respect to everyone’s humanity”. Both the Appeal Court and High Court in Guyana had ruled against changing the cross-dressing laws, as several Caribbean countries remain uncertain about making the CCJ their final court.