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 Reposted 21st, September, 2013

Criminalising Cross-Dressing in Guyana: Quincy McEwan et al vs. Attorney General of Guyana

2013 has been a busy year
for lesbian, gay, bisexual and transgender rights (LGBT) in the
Commonwealth Caribbean. As noted in a previous post
by activist and attorney-at-law Maurice Tomlinson, there is a series of
cases in which laws that adversely affect the Caribbean LGBT are being
challenged in the courts. In one of those cases, Quincy McEwan et al vs. Attorney General of Guyana, a Guyanese law criminalising cross-dressing has been unsuccessfully challenged before the High Court of Guyana.

Se-Shauna Wheatle is a Lecturer in Law at Exeter College, University of Oxford.
Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, Chapter 8:02 of the Laws of Guyana
makes it a criminal offence for a man to wear ‘female attire’, and for a
woman to ‘male attire’, in public, for an ‘improper purpose’. The
applicants in McEwan v AG argued that the law violated several sections of the Constitution of Guyana,
including the rights to equality and non-discrimination under Articles
149 and 149D. It was also argued that the law violated the rule of law,
due to the uncertainty in its references to ‘female attire’, ‘male
attire’, and ‘improper purpose’.
However, the applicants had to confront a
savings law clause in the Constitution, which presented a serious
hurdle to their submissions that the law violated the Constitution. This
clause grants immunity from challenge on the ground of inconsistency
with the provisions in articles 138 to 149 (inclusive) of the
Constitution, to laws existing prior to the Constitution. The applicants
confronted this hurdle by making several arguments about the scope of
the savings law clause. One of these arguments was that section 153(1)
had lost its ‘existing law’ status due to the amendment of the section
in years subsequent to the Constitution. It was also submitted that the
law not only violated sections of the Constitution, but also undermined
the constitutional principle of the rule of law. It was maintained that
the savings law clause does not protect laws from challenge under an
implied constitutional principle.
The Acting Chief Justice, who presided
over the case, rejected these arguments, holding that the cross-dressing
law did not violate the Constitution. He found that there was a
violation of the rights of the four litigants in the case because when
they were arrested and the police failed to inform them as soon as
reasonably practicable of the reasons for their arrests, as required by
Article 139 (3) of the Constitution. However, the challenge to the
cross-dressing law itself was rejected, in a judgment that only
cursorily addressed the issues and arguments raised in the case.

Equality and Non-Discrimination

On the issue of equality, the judge held
that since section 153 is directed against both men and women, there
was no discrimination on the ground of gender. His reasoning omitted
analysis of the prescription of gender roles to individuals according to
their sex, and the resulting requirement that individuals dress
according to those prescribed gender roles. There was consequently no
discussion of the manner in which the law reflects this assignment of
gender roles or the impact of this dynamic on transgender persons who do
not identify with that binary representation of gender.

Savings Law Clause

The judge simply held that section
153(1) (xlvii) was immune as an existing law. The judge would have
contributed to jurisprudence on the scope of the savings law clause by
addressing the argument that the clause does not save laws that are
inconsistent with the implied constitutional principle, the rule of law.
There is support for the rule of law argument in a Privy Council
decision DPP v Mollison,
in which it was held that a Jamaican existing law was not saved by the
savings law clause because the law violated the separation of powers, an
implied constitutional principle. This case was not discussed in the
judgment. The court also rejected the argument that the law was
unenforceable for vagueness, but did not connect this holding to the
submission that if the section was found to violate the rule of law due
to vagueness, it could not be protected by the savings law clause.

The Future of the Case

The applicants have already indicated
their intention to appeal the judgment of the High Court. Apart from the
hope that an appeal would yield a victory for supporters of LGBT rights
in the Caribbean, it is also hoped that an appellate judgment would
deliver more forthright engagement with the issues surrounding the
interpretation of the saving law clause and the scope of the equality
provisions in the Constitution of Guyana.
Se-Shauna Wheatle
is a Lecturer in Law at Exeter College, University of Oxford. She is
also the Caribbean Regional Correspondent of the Oxford Human Rights