Magistrate: They’re confused, should go to church

FOUR cross-dressing men from Guyana will have their appeal heard at the Caribbean Court of Justice in Port of Spain later this month.

Quincy Mc Ewan, a commercial sex worker in Georgetown; Seon Clarke, Joseph Fraser and Seyon Persaud, have challenged a ruling of Guyana’s Court of Appeal which dismissed their case, in which they contended that country’s colonial vagrancy law discriminated against them and violated equality provisions in the constitution.

The appeal is expected to be heard on June 28, by video conferencing from the Henry Street, Port of Spain-based court.

In a unanimous decision last year, acting Chancellor of Guyana’s Judiciary, Justice Carl Singh, acting Chief Justice Yonette Edwards-Cummings and Justice Brassington Reynolds upheld the ruling of former acting Chief Justice Ian Chang that both men and women were free to cross-dress in public once the reason for doing so was not for an “improper purpose.”

Chang, in his ruling, held that cross-dressing by men was not a crime.

The four, in 2010, asked the Guyana Supreme Court to strike down the law, which left them open to arrest.

Chang’s ruling meant men could dress in women’s clothing, but not for any “improper purpose.” The ruling did not say what constituted an “improper purpose.”

Guyanese law also prohibits women from appearing in public dressed as men, although they are allowed to wear trousers. Homosexuality is also a criminal offence in Guyana.

Chang, who ruled that the police had violated the rights of the four men during a 2009 crackdown, said he did not believe the law amounted to “discrimination,” in violation of Guyana’s constitution.

At the Court of Appeal, McEwan, known as Gulliver; Clarke, known as Angel Clarke; Fraser, known as Peaches Fraser; and Persaud, known as Isabella Persaud, sought clarity on what constituted “improper purpose.” They contended that there was uncertainty in the terminology used in the statute and that it contravened their rights to equality and freedom of expression while it was discriminatory.

They have brought their case to Guyana’s final appellate court for further clarity on the issue, contending the colonial law is vague and amounts to sex/gender discrimination because it is based on sex-role stereotyping, and has a disproportionate impact on transgender people.

Chancellor Singh, in the 64-page ruling, said it was not for the court to attempt a definition of a broad term. He said that in each case, it was for the magistrate to decide, on a case-by-case basis, based on the facts before him or her, whether a man was wearing female clothing for “an improper purpose.” He also said the court was not persuaded that the law discriminated against anyone.

The four had been charged and fined for wearing women’s clothing for an improper purpose under Section 153 (1) (XLVII) of the Summary Jurisdiction (Offences) Act Chapter 8:02 – an 1893 vagrancy law.

At the time, then chief magistrate Melissa Robertson told them they were “confused” and should “go to church and give their lives to Christ.”

Section 153 (1) (XLVII) makes every man who appears in “female attire” and every woman who appears in “male attire,” in any public way or public place, “for any improper purpose,” liable to a fine not less than Guy$7,500 or more than Guy$10,000.

The case before the CCJ will also challenge the existence of constitutional savings clauses and the protection they give to colonial laws.

In their appeal, the four are maintaining that the savings law clause does not protect laws from challenge under an implied constitutional principle.

In 2016, Jamaican lawyer Maurice Tomlinson challenged TT and Belize’s immigration laws which allow the refusal of entry to regional homosexual visitors. While the Caribbean Court of Justice (CCJ) dismissed his case, both governments admitted the laws were not enforced by their immigration officials. Later that year, Belize’s Supreme Court struck down that country’s sodomy laws, after a case similar to Tomlinson’s was filed by a local activist. However, unlike TT, Belize did not have a savings clause protecting its legislation from review.