A judge in Guyana has ruled that cross dressing is not of itself a crime and that police should not pursue criminal charges unless they have evidence of “improper purposes.” What does this mean and why are LGBT rights groups frustrated by this ruling?
The judge in this case, Chief Justice Mr. Ian Chang, ruled Friday September 6 that Section 153 (1) of the Summary Jurisdiction Offences code was not breached by four transgender people who were arrested in 2009 and fined.
Section 153 had been interpreted to make it a crime for birth-assigned men to wear female clothing in public or for a woman to wear male clothing in public. However, in his ruling Judge Chang deemed that Section 153 should only be applied where there is reason to suspect “improper purposes” (more on that below) and not in the case of people “expressing or accentuating his or her personal sexual orientation in public.” That Judge Chang has confused gender expression with sexuality barely needs to be said.
Regardless, Chang also ruled in a surprising move that Section 153 is immune from constitutional challenge and that the four trans plaintiffs in this case and their supporting organizations cannot use the courts to overturn the law and instead must rely on lawmakers taking action because, he contended, trans people are not protected under the Constitution’s gender nondiscrimination clause.
The Chief Justice did, however, say police had violated the human rights of the four plaintiffs when they were arrested under Section 153, but not because the provision was improperly enforced. No, the judge awarded the four plaintiffs $40,000 (GYD) each for the breach of their human rights as they were not informed of the reasons for their arrest within an appropriate time frame.
This may sound quite legalistic and dense, but the ruling is very important for trans citizens, as is what action can be taken going forward.
Cautious praise has been issued by some, with Colin Robinson, manager of the CariFLAGS secretariat based in Trinidad, saying this ruling is a positive step because it affirms “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.”
However, one of the plaintiffs in this case, Quincy McEwan, has explained both the positive and negative aspects of this ruling, saying “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.”
According to the ruling, “improper purposes” might include trans citizens engaging in sex work, though exactly how one determines “improper purposes” remains unclear and as such the law could still be widely applied to criminalize Guyana’s transgender citizens.
An appeal is being worked on with the involved civil rights groups believing that Judge Chang failed to give proper thought or discussion to trans identity and the discrimination and issues trans and gender variant people face in Guyana society. They also argue that, on a technical point, there is clear provision in the Guyana Constitution for bringing a constitutional challenge on grounds of gender and that this will make up the second aspect of their appeal.
Said Zenita Nicholson, Secretary of SASOD’s board of trustees, which was involved in the case: “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.”
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