THE CARIBBEAN Court of Justice (CCJ)’s ruling in favour of four transgender women is the strongest sign yet of its independence and ability to fairly apply the law. The message is clear: the court is dressed to impress.
Alluring outfits are needed now more than ever. Over the years, politicians have failed the CCJ. It has never really managed to capture the confidence of the people. For example, both Grenada and Antigua blanked the court in recent plebiscites. So indifferent were voters, turnout was only 28 and 34 per cent, respectively.
Which is why Monday’s ruling is all the more remarkable. Instead of opting to hand down a judgment that panders to public opinion, the court stuck to the law. It did the right, not popular, thing. What else are courts for?
Notably, the CCJ found a law making it a criminal offence for a man to wear a dress discriminatory given its adverse impact on transgender people. Further, it found section 153(1)(xlvii) of Guyana’s Summary Jurisdiction (Offences) Act to be an infringement of personal autonomy. Tellingly, it did not shy from the social implications of the law.
It stated: “The formulation and operation of section 153(1)(xlvii) also reinforce stereotyping. The section conduces to the stigmatisation of those who do not conform.” In other words, it saw the true mischief of the law; its agenda of hate and prejudice against those who do not conform to traditional gendered clothing.
“The fact that (the law) criminalises aspects of their way of life, thus enabling the State to unleash its full might against them, cannot, in all the circumstances, be reasonably justified,” said the CCJ.
For all that, the truly explosive finding of the court related not to gender, but the vexed question of the so-called savings clause inserted into post-independence constitutions all over the region. Over the years, these clauses have been used to preserve many colonial-era laws. For the first time, the CCJ gave us not one but four highly persuasive legal reasons why these clauses should no longer be used to deny people their human rights in regional courts.
The implications are profound. In ruling the saving clause subject to restrictive interpretation, the CCJ has, along with Justice Devindra Rampersad of the TT High Court in the Jason Jones case, planted the seeds that will upend an archaic legacy of our colonial past.
In this regard, judges are required to be sensitive to the local conditions of the jurisdictions they rule over. This is so not because they are required to pander to the mob. Rather, they need to understand the implications of their decisions. This enables them to produce jurisprudence that bravely and independently does what all courts are meant to do, whether based in London or Port-of-Spain.