Guyana strikes off criminalisation of cross-dressing from law books

…as National Assembly passes amendment

With at least two members of the Opposition voting in favour, the National Assembly in the wee hours of Tuesday morning passed the amendment to the Summary Jurisdiction (Offences) Act effectively complying with the 2018 orders of the Caribbean Court of Justice.

In November 2018, the CCJ struck down Section 153 3(1)(xlvii) of the Summary Jurisdiction (Offences) Act after it was challenged by Quincy McEwan, Seon Clarke, Joseph Fraser, and Seyon Persaud following their arrest and subsequent conviction under that section of the law. That section prohibits every person who, “being a man, in any public way or public place, for any improper purpose, appears in a female attire; or being a woman, in any public way or public place, for any improper purpose, appears in a male attire.”
On June 10, Attorney General and Minister of Legal Affairs, Anil Nandlall tabled the Summary Jurisdiction (Offences) Amendment Bill of 2021 to formally remove Section 153 3(1)(xlvii) off the law books.
The bill’s explanatory memorandum states that the amendment gives effect to the CCJ’s judgement and signals the Government’s commitment to fulfilling the human rights of all Guyanese.
“The Government rightly acknowledges and agrees with the CCJ that this archaic law, which is inconsistent with the Constitution of Guyana,” it explains.
The debate on the bill began around 01:10h Tuesday morning during the marathon 31st sitting of the 12th Parliament with Nandlall putting it on the floor. During his opening statement, the AG reminded the House that the amendment is in keeping with the CCJ’s ruling.

Citing Articles 1 and 8 of the Constitution, the AG said those two provisions mean that Guyana’s Constitution is the supreme law of the country and that every law that is inconsistent with the provision is void to the extent of the inconsistency.
“It also means that our nation is democratic and that terminology has been interpreted repeatedly by our courts to mean that inherent in our Constitution is the doctrine of separation of powers. And under that doctrine the Judiciary is tasked with the constitutional responsibility of not only reviewing executive actions but reviewing the actions of this House, the Parliament to ensure in compliance with Article 8 of the constitution. If there’s any law that is inconsistent, then that law is void and to the extent of that inconsistency,” Nandlall proffered.
He further explained that it is the duty of the House, having been directed by the orders of the CCJ, to remove the “repulsive” provision from the laws of Guyana and that is exactly what the Government is seeking to do.
Nandlall said that since the amendment was merely functional, he was not expecting a line-up of four speakers from the Opposition.
“We have a duty not only to enact new laws or to amend existing laws but to remove, from our legislative architecture, those provisions that may have been pronounced to be repugnant and repulsive to our Constitution, and we are simply delivering on that discharging that responsibility,” he said.

Explaining the intricacies of the case that resulted in the law being struck down, Nandlall said that McEwan, Clarke, Fraser and Persaud, who are members of LGBTQ+ community, were caught attired in female clothing and subsequently prosecuted. They then challenged the law under which they were charged because it was perceived to be impugning on their rights and freedoms enshrined in Guyana’s Constitution. Also, they had successfully argued that the law was too vague.
“Freedom of expression is a broad, varying and embracing freedom. It includes freedom to speak, it includes freedom to worship, and it also includes freedom to dress. One of the findings of the court was that the law then offended that right to dress and express oneself in terms of one’s attire,” Nandlall informed the house.

Citing Article 149 of the Constitution which states “No law shall make any provision that is discriminatory either of itself, or in its effect and no person shall be treated in a discriminatory manner by any person, by virtue of any written law, or in the performance of the functions of any public office of any public authority,” the AG repeated that freedom from discrimination is enshrined in the supreme law of the country. He went on to explain that freedom from discrimination guarantees, regardless of gender, the right to dress as they wish.
“This bill is not only against the liberal ethos that is sweeping across the world, and would be considered anti progressive, but it is also futile. There’s nothing you can do about it, not only because we have the votes on this side but because the court has already ruled. Even if we are not to bring this bill, if we were not to bring this bill here, the state of Guyana, the prosecutorial arm, the investigative arm of the state of Guyana can no longer enforce this law. It no longer exists by virtue of judicial declaration. It is invalid. It is null, void and of no effect.

“I’m told that some people have some strong Christian views in a liberal secular society, in a democratic nation, you are entitled to those views. But the Constitution says, civil liberties say that those people are also entitled to dressed as civilisation and democracy compels a peaceful coexistence of those, what you may describe as competing interests,” Nandlall added.

“God’s laws are supreme”
Speaking directly after the AG, Opposition Member of Parliament Richard Sinclair followed by his colleague and former Government Minister Annette Ferguson, both argued that the laws of Christianity are supreme to that of any nation.
Sinclair, quoting a number of scriptures from the Bible, argued that men should not be parading around in frocks since it is not what God intended for them.
“I believe that man was created by God in his image and likeness. This is according to the book of Genesis…as the Lord brought forth from the dust of the ground, and breathed into his nostrils the breath of life, and man became a living soul. In other words, Mr Speaker, Christians believe in a holy book called the Bible and it speaks to our Creator creating genders both male and female as alluded by the honourable Attorney General and therefore Mr Speaker, the word of God forms a clear distinction of what or dress code should be,” Sinclair said.
He argued that the laws of the Christian God is supreme and that it should be followed.
However, not everyone in the Opposition argued on the premise of their religious belief. Former Public Security Minister Khemraj Ramjattan at the opening of his statement said “my God is a compassionate God” before throwing his support behind the amendment.
He noted that it is important the logical conclusion to the CCJ’s ruling be brought and the archaic section be deleted. He added that Article 154 of the Constitution speaks to the protection of human rights and entrenches the equality provision on the covenant of political and civil rights. On that accord, Ramjattan added that the courts must also take into account the conventions Guyana signed on to when dealing with the issues of the protection of human rights.
“We will very much support this, at least I am supporting it, to the extent that it is logically concluding that episode of where crossdressing is an offence because it violates the human rights of the persons who want to cross dress and especially in the context of when they are not creating any harm. So, I would like [to] support it but also signal that that which is very much a personal liberty issue, a freedom of choice issue comes into play and we must remember that,” Ramjattan explained.
Additionally, Ramjattan’s colleague Dineshwar Jaipersaud also threw his support behind the amendment.
Nandlall thanked both men for their support for the amendment while emphasising that Guyana remains a secular State and while it recognises religion as well as non-religion, it will not be governed by those rules.
Quincy “Gulliver” McEwan, Seon “Angel” Clarke, Joseph “Peaches” Fraser and Seyon “Isabella” Persaud were arrested and charged on February 9, 2009. They appealed the law banning their mode of dress, resulting in then acting Chief Justice Ian Chang in September 2013 saying that while the act of cross dressing was not a crime in itself, when for an “improper purpose”, it constitutes an offence. That ruling was also appealed at Guyana’s Appeal Court, but their case was similarly dismissed in 2017.
The four persons who were born male and later opted for a transgendered way of life took their case all the way to the CCJ, citing their treatment as discriminatory, based on their position that the law violated their constitutional rights to equality and non-discrimination and freedom of expression. The Justices of the Trinidad-based authority agreed with the applicants. They, therefore, declared the 1893 law unconstitutional and ordered that it must be struck from the laws of Guyana. (G2)