Constitutional Court rules that Cross-Dressing is not a Crime if Not for “Improper Purpose” – Rights Groups Plan Appeal on Dubious Decision

Georgetown, Guyana: On Friday afternoon, September 6, 2013, the Honourable Chief Justice (Ag.), Mr. Ian Chang delivered his judgment in Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) vs. Attorney General of Guyana. Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) provision makes a criminal offence of a man wearing female attire, and a woman wearing male attire, publicly, for any improper purpose. The Chief Justice said that cross-dressing in a public place is an offence only if it is done for an improper purpose.

The Chief Justice also found that the police violated the human rights of the four litigants in the case during their crackdown in February 2009 when they arrested them under section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act and he awarded each of the four arrested compensation of $40,000 (GYD) for breach of their rights to be informed as soon as reasonably practicable as to the reason(s) for their arrests under Article 139 (3) of the Guyana Constitution.

Chief Justice Chang also decided that section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act, is immune from the constitutional challenge brought by the four transgender litigants and their supporting organisations. As an 1893 law, pre-dating Guyana’s independence, the Chief Justice said “legislative rather than curial action is necessary to invalidate the provision.” The litigants are preparing to appeal this and other aspects of Friday’s court decision.

Colin Robinson, manager of the CariFLAGS secretariat based in Trinidad, praised the court’s finding that “It is not criminally offensive for a person to wear the attire of the opposite sex as a matter of preference or to give expression to or to reflect his or her sexual orientation.” The court also found that the law applies only to “attire” and not other gendered accoutrements such as head wigs, ear rings or even shoes. “The learned Chief Justice, however, has confused sexual orientation with gender identity,” Robinson commented.

Reacting to the judgment, the first-named applicant, Quincy McEwan, better known as Gulliver, who is also the Director of Guyana Trans United (GTU), noted that, “The Chief Justice was relatively clear that once you are expressing your gender identity, it’s not criminal for a man to wear female attire. But the law really stifles us, because what could be an improper purpose? The trans community is very worried, and still fearful of arrests, in light of this decision.” The court did not clarify what improper purposes gave rise to the arrests in this case.

The Chief Justice was not convinced the cross-dressing law amounted to ‘discrimination’ on the basis of gender, which would have been in violation of the Guyana Constitution. The court also ruled that the prohibition in the 1893 law is against persons of both genders for the same conduct and, as such, does not amount to discrimination based on gender. Se-shauna Wheatle is Jamaican and Lecturer in Law at Exeter College at the University of Oxford and a researcher in the fields of comparative human rights law and comparative constitutional law. Wheatle, who is the author of the 2013 report “Adjudication in Homicide Cases involving Lesbian, Gay, Bisexual and Transgender (LGBT) Persons in the Commonwealth Caribbean,” said that “The constitutional moment presented by this case demanded more detailed assessment of the issue of discrimination against transgender persons.” She observed that “The reasoning of the learned judge omitted any discussion of the prescription of gender roles to individuals according to their sex and the consequent requirement that individuals dress according to those prescribed gender roles. There was no discussion of the way in which the challenged section reflected such prescription of gender roles or the impact of this dynamic on persons who are transgender.”

The court also ruled that SASOD had no locus standi (standing) in the matter since the individual applicants brought the claim in their own names as the persons who were personally aggrieved. The Guyana Constitution was the first in the English-speaking Caribbean to give “an association acting on behalf of its members” the right to bring a claim before the Constitutional Court that there has been a breach of the guaranteed fundamental rights. The standing of SASOD is one of the issues which the litigants expect to argue before the Court of Appeal.

Similar sentiments were echoed by Zenita Nicholson, Secretary of SASOD’s board of trustees. “I feel the court lost a golden opportunity to give life to the Guyana constitution by vitiating this 1893 law against cross-dressing and establishing that all Guyanese are entitled to fundamental rights and freedoms, including our transgender citizens, who unfortunately will continue to be vulnerable to human rights abuses, with this dubious decision. We must appeal it,” she said.

Dr. Arif Bulkan who argued the case on behalf of the litigants is a lecturer in constitutional law and human rights law at the Faculty of Law, UWI, St. Augustine and a coordinator of the Faculty of Law UWI Rights Advocacy Project (U-RAP), which has managed the litigation. Dr. Bulkan said that “This case raises issues of great public and constitutional importance relating to the scope of the restrictive savings law clauses in the Constitution that limit challenges to repressive colonial laws and the new provisions in the Guyana Constitution dealing with equality and non-discrimination. The region is closely watching this case.” He added that the legal team for the litigants, which includes Mr. Gino Persaud as instructing counsel, looks forward to arguing these important human rights concerns before the Court of Appeal. He said “In the content of our laws and details of our conduct, we must give meaning to the strong commitment in the Constitution to eliminate ‘any and every form of discrimination’ in Guyana.”

The case of McEwan, Clarke, Fraser, Persaud and SASOD v. Attorney General was initiated four years ago following the February 2009 conviction and fine of seven individuals for violating section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act. The 1893 law makes it a criminal offence for men to wear female attire and for women to wear male attire “in any public way or public place, for any improper purpose.” Other activities criminalised in section 153(1) are: grooming an animal in a public place; placing goods in a public way in town; beating a mat in a public way; flying a kite in the city; loitering around a shop and hauling timber in a public way. Unrepresented and unaware of their rights, the defendants were detained in police custody over the weekend, and then hustled through the legal system and fined $7,500 (GYD) each.

U-RAP co-founder, attorney-at-law and public law lecturer at the University of the West Indies (UWI), St. Augustine, Dr. Arif Bulkan explained that this colonial law was part of repressive penal regimes instituted in the second half of the nineteenth century throughout the Caribbean to severely constrain the lives and actions of recent freed Africans and the newly arrived indentured servants. Bulkan notes that “Despite the discriminatory aspects of these colonial laws, and their low regard for the majority colonial populations, vagrancy laws like section 153(1) have been kept in effect long after independence.” He adds that “The law is plainly at odds with the Guyana Constitution which states that it is committed to ‘eliminating every form of discrimination.’”

Joint Media Release from the Society Against Sexual Orientation Discrimination (SASOD), Guyana Trans United (GTU), Caribbean Vulnerable Communities Coalition (CVC), Caribbean Forum for Liberation and Acceptance of Genders and Sexualities (CariFLAGS) and the Faculty of Law University of the West Indies Rights Advocacy Project (U-RAP).

The Double Injustice of Buggery Laws

In Barbados, a scout leader is charged with rape of a 12-year-old boy.  Legally speaking, he is charged with buggery* under laws which criminalise anal sex regardless of consent or lack thereof or age of the victim.

Following reports of the case the Chief Scout Commissioner has publicly spoken out against…wait  for it…not child sexual abuse…not all forms of abuse against children…but against homosexuality.

Most of the comments posted  to the Nation’s facebook page clearly recognise what the Chief Scout Commissioner does not, that this case is about the sexual abuse of a child not yet another opportunity for public expression of homophobia. Using the buggery laws to prosecute cases of child sexual abuse contributes to a lack of access to justice for children who are victims of sexual abuse.

One commenter wrote:

so had been it a girl would that have been okay!!! rather than look at it as being homosexual in nature..Look at it as a sexual assault on a minor and deal with accordingly..Rape is not a homosexual dis-eases!!

Another wrote:

This should not be about homosexuality. What consenting adults choose to do in their private lives, is their business, no on else’s. The Boys’ Scout issue is a criminal matter, it is sexual abuse of a minor. There is no such thing as “leader to boy” sexual contact and Dr Taylor should be ashamed to make such asinine comments. The accused should feel the full weight of the law and punished accordingly. Barbadians need to stop conveniently confusing homosexuality with child sexuality abuse.

This case, however, is but one example that points to a much larger problem. Most Caribbean countries prosecute instances of rape of boys by adult men using the laws against buggery. What this does is conflate rape with consensual relations and conflate the sexual abuse of a child with sex between adults. Ultimately it sends the message that it is the homosexual nature of the act that is offensive/egregious/illegal rather than the rape of a child.

The way in which Caribbean children (especially girls) suffer sexual harassment on the street and public transportation, the fact that girls who are victims of sexual abuse often end up themselves being criminalised by being removed from their homes and placed in dangerous state facilities (let us not forget Armadale) or are charged with wandering, demonstrate an overall inadequate and unjust response to child sexual abuse.

When the Scout Commissioner chooses to condemn homosexuality but not child sexual abuse it speaks volumes of the extent to which the severity of child sexual abuse as an infringement on the human rights of children and a denial of their bodily integrity is often diminished. To give but one of countless examples from the Caribbean, in Belize recently an adult man was charged with having sex with a child (girl). He was allowed to walk free when the girls’ father claimed he could not remember his daughter’s age. If as a region we took the sexual abuse of children seriously such a conclusion would be unthinkable.

In Caribbean feminist online community WOMANTRA I raised the following questions:

has any legal analysis been done on why the buggery laws are used in cases of male rape of boys and not child sexual abuse laws? Do these laws [against child sexual abuse] not cover abuse of boys? Do they carry lighter sentences? Are the statutory rape laws gendered and exclude boys?

Young lawyer, Richie Maitland, responded:

Suffice it to say that the buggery law is used because its the easiest to prosecute. They don’t have to prove anything beyond the fact of anal sex; they don’t have to prove non consent. There are other laws they could be prosecuted pursuant to, but it requires the prosecution to prove other elements.

Lawyer-in-traning and Children’s Rights Advocate, Rashad Brathwaite had this to contribute as we sought to write the post collectively:

The Sexual Offences Act in Barbados, unlike much of the Caribbean, sufficiently provides legal recourse for Child Sexual Abuse meted out against boys under 14 to be dealt with under the statutory rape provision without the additional hurdles of proof of non-consent. That is to say, there is no ostensible need to prosecute the abuse  of a 12 year-old boy under the buggery laws in Barbados.

The current state of the law throughout much of the region and the practice in Barbados require urgent reform to treat the abuse of ALL children, as a class of criminality that deserves its own treatment as an act against our collective humanity and deserving the highest levels of opprobium.

In so doing however, the law ought to treat to the sexual abuse of children, in the instant case the abuse of boys as conceptually distinct from the consensual sexual relations between adults.

Ultimately the buggery laws perform a double injustice. They criminalise sexual relations between adults and support a culture of homophobia and stigma.  They also reflect and support an inadequate response to child sexual abuse, leaving many children who are victimised without access to justice and normalising many forms of child sexual abuse.

Edited to add: conflating and confusing rape of boys with homosexuality also serves to silence boys who are raped or sexually abused. Because they fear being stigmatized and labeled, they suffer in silence, do not report the abuse and may even blame themselves for having been abused.

*based on the reports in the Nation News we assume that he has indeed been charged with buggery.

Check out this post entitled Everyday Rape for an earlier discussion on rape and sexual abuse in the region.

 Thanks to Rashad Brathwaite of CODE RED for gender justice! and Grenadian attorney-at-law Richie Maitland, for their contributions to this article.

Fictions of the Past, Visions of the Future

The Nation (Barbados) posted the following to its facebook page on Friday:

Research shows that there are more independent women today. Easy magazine wants to know if you agree with this statement, or if you think women are still financially and emotionally dependent on men.

One commenter replied that, “Women are always looking for hand-outs, most women are takers, and not givers.”

OK…

I responded with a bit of quick and dirty Barbadian history:

The question assumes that at some point women generally were dependent on men. Let’s break this down a bit for the Caribbean. Most of us in the region are descendants of women and men who came here as either indentured or enslaved labour. So that’s both men and women working under conditions of unfreedom. Fast forward to the “free” years where racial segregation persisted and Barbados of the 1940s had one of the highest mortality rates in the Caribbean. Add to that massive waves of migration of which men made up a significant number of migrants. Women end up responsibility for the care of children, emotional and financial. With the support of men and without it. They end up with a sex-segregated labour market where men as a group out earn women as a group, where women’s unemployment rate outstripped men’s, where the caring work they provide was not valued as work and where they were many overtly discriminatory policies and laws. Writing in the early 80s, sociologist Christine Barrow identified independence and dependence and complementary strategies which women used in order to fulfill their responsibility for running the household. What was the question again? Are women still emotionally and financially dependent on men? Doesn’t it sound a little ridiculous and reductionist when put in perspective? Doesn’t the assumption that a man is always independent and a woman dependent seem like rubbish now??? Women who work, who take care of their children with or without a partner, often with the help of extended families, have a long, long history in the Caribbean. At no point were masses of women sitting at home with their feet up waiting for men to bring home the bacon.

Then I directed them to this post by a Caribbean sista who does a much better job of breaking down the whole independent ladies BS meme:

An extension of that idea is that financially independent women who remain commodities or commodified in men’s eyes are a huge turn-on. It is the Holy Grail of the whole ordeal. It is the reason a man will boast of his sexual conquest of a woman and qualify it with “and I didn’t spend a cent.” So all those independent ladies in the fête who are still willing to scream on command? Oh man. That in itself is an orgasm. Because it means that as financially independent as you are, you still require my penis to be ultimately satisfied. You still take orders and I’m still in control. (via The Mongoose Chronicles)

But this is not about independent ladies.  It’s about how in the Caribbean we are constantly inventing a fictive past in order to ensure that inequities persist in the present.

After UK Prime Minister David Cameron threatened to withdraw aid from those countries which maintain anti-homosexual legislation the predictable happened.  Even countries not receiving bilateral aid from Britain stood up to defend their sovereignty and the mass and social media were awash with renewed anti-homosexual sentiment.  A few brave souls spoke up to say that yes, it was about time Caribbean governments repealed laws which criminalise same-sex sexual relations.

Then there were the usual religious pronouncements. One Nation columnist argued that:

Traditionally, we have been a country that recognized, promoted and practised the moral principles of the Christian Bible and we can see some of those represented in our laws.  […] If we allow others to force us away from the foundational values that this country was built on, we will inevitably have to change the lyrics of our National Anthem, since the Lord will cease to be our guide.

Say what????

Well, I don’t know exactly which Barbados he was talking about but traditionally we have been a plantation under 300 years of uninterrupted British rule.  A regime so  all-encompassing that even today stereotypes persist about the “passive Bajan.”

Historian Mary Chamberlain notes that:

In 1955, infant mortality [in Barbados] significantly higher than its European or North American counterparts, and almost double that prevailing in other parts of the British West Indies. […]

The underlying causes of the poverty lay in the racial divisions which structured Barbadian society. Unlike other British West Indian territories which benefited from the paternalism of Crown Colony (in effect, direct British) government, the legislature in Barbados was elected locally and responsible for taxation and domestic policy.  Those qualified to vote represented a tiny, landowning minority. As a result, the Barbadian government and its economy was in the hands of a small, white and wealthy oligarchy – known as the ‘plantocracy’ – renowned for their racism, their reactionary views and their pride in an unbroken three hundred year tradition of local rule.

Turns out the plantocracy may have had a greater hand in guiding the affairs of this island than did “the moral principles of the Christian Bible.”

Why waste so much energy re-inventing the past when the future is ours to imagine, to invent, in ways that are freer, fairer and more equitable?