On 6 September, the High Court of Guyana issued its judgment in the case of McEwan and others v the Attorney-General (No. 21-M 2010) finding that a legal ban on cross-dressing for an “improper purpose” was not unconstitutional but that the wearing of “attire” in order to express or accentuate “personal sexual orientation in public” could never be considered “improper”. The Court did not accept that the ban on cross-dressing was a violation of the Constitutional rights to be free from discrimination (Article 149) and equal before the law (Article 149D). The applicants now plan to appeal.
The case related to the conviction of four male-to-female transgender persons for an offence of “wearing female attire”, prohibited under Section 153(1)(XLV11) of the Summary Jurisdiction (Offences) Act (Section 153), after they were arrested by police on the streets of Guyana on 6 February 2009. The applicants were variously dressed in shirts and tights and/or skirts and some were wearing wigs at the time. On 9 February 2009, the applicants pleaded guilty to the offence and were fined between $7,500 and $19,500 (Guyanese) each.
On 13 February 2010, the applicants, together with the Society against Sexual Orientation Discrimination (SASOD), brought a claim that their constitutional rights had been, and continued to be, violated. They claimed that Section 153 was a violation of the applicants’ fundamental rights (Article 40), specifically their rights to equality before the law (Article 149D) and freedom from discrimination (Article 149) and that it was “vague and uncertain”. The applicants also claimed that the arrest and charging procedures were in breach of their constitutional right to personal liberty (Article 139); and that comments made by the Chief Magistrate that they were confused about their sexuality, were men not women and needed to give their lives to Jesus Christ, were a violation of their right to freedom of conscience (Article 145).
The Respondent denied these claims and alleged Section 7(1) of the Constitution “preserved existing laws in force prior to the promulgation of the Constitution”, such as Section 153. Further, the Respondent alleged that the applications were “entirely misconceived, speculative, vexatious and an abuse of the process of the court” and that SASOD did not have locus standi to be an applicant in the case as the individuals were applicants in their own names.
The Court agreed that SASOD did not have locus standi and its application was struck out. In relation to the other applicants, the Court found that their right to be informed of the reason for their arrest as soon as reasonably practicable under Article 139 had been violated but that there had been no violation of their right to seek legal advice (Article 139(3)) or to freedom of conscience (Article 145). Ruling on Section 153, the Court held:
- That it could not find anything “contained in or done under the authority of” Section 153 to be inconsistent with the Constitution’s Bill of Rights, as Article 152(1) of the Constitution, which states that no law which was in effect immediately before the commencement of the Constitution can be found inconsistent with Articles 138-149 [the Bill of Rights], effectively prevented it from doing so.
- Section 153’s references to “female attire”, “male attire” and “improper purpose” are not vague and uncertain but rather are questions of fact for the Court to determine based on the presiding social mores.
- Section 153 is not applicable “if a person is wearing an ‘attire’ for the purpose of expressing or accentuating his or her personal sexual orientation in public”. Such a purpose “is not improper or even capable of being viewed as improper.”
- Section 153 applies to both men “wearing female attire” and women “wearing male attire”. Accordingly, Section 153 is “directed against the conduct of both male and female persons” and so could not be considered discriminatory on the basis of sex. Section 153 “simply recognises a difference between male and female persons in relation to the wearing of attire (clothes)”. It is implicit in the judgment that the Court does not consider this differentiation in “male” and “female” attire to be discriminatory.
- There is no breach of the Applicants’ rights to equality before the law and equal protection of the law under Article 149D because there was no evidence that other persons “similarly circumstanced” had not been similarly treated under Section 153.
The Equal Rights Trust is disappointed by the Court’s failure to acknowledge the discrimination suffered by the applicants in this case and the ongoing risks to their personal liberty and equality which remain whilst Section 153 is in force. ERT welcomes the Court’s confirmation that cross-dressing for reasons of gender identity could not be considered improper under Section 153. However, it is of the view that the Guyanese judiciary needs to go much further than it has in this judgment in order to enforce the full protection of Articles 149 and 149D of the Constitution with respect to the rights of transgender persons in Guyana.