The constitutional challenge to the cross-dressing law

Reposted 27th, September, 2013
 
Alissa Trotz is editor of the In the Diaspora Column
This
column is dedicated to the memory of Dwayne Jones, murdered in Montego
Bay, Jamaica, in July of this year. Jones had been attacked and beaten
to death by a crowd after attending a party dressed in female attire.
There is guarded
optimism in some quarters that Justice Chang’s ruling that there is
nothing improper per se about cross-dressing goes some way to
recognizing LGBT rights. I am a layperson when it comes to the law, but
for me the ruling clarified that we have a long way to go to combat
homophobia and transphobia, as well as to unequivocally uphold the
Guyana Constitution, and the fundamental rights provisions it enshrines,
as the supreme law of the land.
Several dimensions of the ruling
are deeply concerning. At the time of the criminal trial, Chief
Magistrate Melissa Robertson reportedly instructed the defendants that
they were “confused” and should “go to church and give their lives to
Christ.” The applicants to the High Court sought a declaration that such
statements from the bench disregarded their rights to freedom of
thought and religion and violated the constitutional declaration that
Guyana is a secular state. Justice Chang’s response that the Chief
Magistrate was merely proselytizing like any religious leader, and that
her exhortations could therefore not be considered a constitutional
infringement, seems strange. Article 149 (1) of the constitution tells
us that “no person shall be treated in a discriminatory manner by any
person acting by virtue of any written law or in the performance of the
functions of any public office or any public authority.” Is a magistrate
not appointed to perform the functions of a public office? And what
does it mean that in executing such duties, the chief magistrate should
tell defendants that they should become Christians (presumably to clear
up any confusion about their gender and sexual identity)? This position
cannot be compared to that of a religious leader, not least because none
of the seven defendants brought before the court chose to be there and
to receive the ‘advice’ handed down to them. It is extremely difficult
to see how a direct rebuke and instruction, made by a magistrate in the
middle of a hearing over which she is presiding and over which she has
ultimate authority and sentencing power, could be construed as harmless
proselytising.
The applicants also sought a declaration that the
law discriminates against persons on the basis of sex and gender,
contrary to article 149 of the constitution. In rejecting this argument,
the Chief Justice opined that the law could not be considered to be
discriminatory since it applied equally to men (dressing in female
attire) and women (dressing in male attire). Justice Chang’s decision
that fairness has to do with the equal application of the law to men and
women rules out careful attention to the content of the law itself. We
could come up with other examples to show how this thinking is deeply
flawed and short-sighted, say a ruling that upholds a racist law that
criminalizes inter-racial marriages between Indians and Chinese, arguing
that since both Indians and Chinese are equally liable to face charges
and go to jail if they intermarry, then the law is not racially
discriminatory. In short, what this judgment says is that the law is not
discriminatory because men and women are equally vulnerable to its
discriminatory provisions. It not only forecloses consideration of how
the discrimination at work here turns on penalizing people for not
conforming to stereotypes based on ideas of masculine and feminine
gender roles, but by adhering to the law’s binary notion of women and
men in Article 153, it reinforces the marginalization of transgendered
persons.
In his ruling, Justice Chang stated that cross-dressing by
itself is not a criminal offence; it only becomes one when done for an
improper purpose. Improper here seems to be akin to illegal, but what
exactly constitutes an improper purpose has been left completely
undefined. Is a purpose the same as an act, or does it refer simply to
an intention to do something (in which case can you be charged for
having an improper
intention?). And if improper purpose refers to
illegal acts like robbery, fraud, surely those are already covered by
existing legislation? What this law effectively does is punish people
for cross-dressing, thus bringing us full circle to its discriminatory
intent. If a friend and I are charged with loitering and I am seen as a
biological woman wearing men’s clothes, then I face additional charges
under Section 153 (1). It is my clothing that singles me out as liable
in a way that my friend is not. Let us not even get into the question of
what is men’s and women’s clothing. One clue is supplied in the
judgment, when in a truly torturous section discussing attire which is
seen as covered by the law, and accoutrements which are not, earrings
are referred to as women’s and finger rings as men’s. Really?
In
his decision, Justice Chang rightly awarded damages to the four
litigants on the basis of the police officers’ failure to inform them of
the reasons for the arrests, violating their constitutional rights to
due process. But leaving the law as it stands reinforces the LGBT
community’s vulnerability. As Gulliver, one of the applicants and
director of Guyana Trans United (GTU), stated, “…the law really stifles
us, because what could be an improper purpose? The trans community is
very worried, and still fearful of arrests, in light of this decision.”
The imprecision attached to ‘improper purpose’ gives wide discretionary
powers to the police and the justice system in a context where the cards
are heavily stacked against LGBT persons. In a 2012 report, author
Christopher Carrico noted that persons interviewed spoke of regular
police harassment, arbitrary arrest, abuse and prosecution. What is to
stop the police from threatening people who cross-dress, or holding them
on suspicion of having an improper purpose? Nothing in this judgment
prevents such an arbitrary application of the law because we are no
clearer on what ‘improper purpose’ means. In the face of seven
transgendered persons who went to prison, the learned Chief Justice
could not give us any answer.
This brings us to a final point,
Justice Chang’s refusal to accept that the law was unconstitutional,
ruling that it had been in existence since 1893 and was therefore
protected from challenge under Article 152 (1) of the constitution (the
savings law clauses, which essentially preserved pre-existing laws at
the time of independence from constitutional scrutiny).
Diana
Paton, Reader in Caribbean History at Newcastle University, points out
that “the vagrancy laws in the Caribbean, including those included in
the Guyanese Summary Jurisdiction Act, date from a period shortly after
slavery when the colonial authorities were looking for new ways to
control the population. Part of this drive was focused on ensuring that
people took on wage labour, but vagrancy legislation was also used to
enforce specific norms of behaviour that were mostly derived from
Victorian ideas of respectability and proper behaviour.” In addition to
cross-dressing, some of the other ridiculous offences that remain on the
lawbooks as part of Section 153 (1) penalize anyone who:
(xi) in
any public way or public place in any town, beats or shakes any mat
between seven in the morning and six  in the afternoon;
(xxix) in any public way flies any kite or plays at any game;
Having
a sense of the context that produced Section 153 (1) underlines how an
independent country continues to breathe life into colonial laws
designed to keep the majority of Caribbean peoples in a state of
bondage. Arif Bulkan, one of the lawyers representing the applicants,
identifies the irreconcilable tension between “the restrictive savings
law clauses in the constitution that limit challenges to repressive
colonial laws and the new provisions in the Guyana constitution dealing
with equality and non-discrimination.” Justice Chang took a decidedly
conservative approach, ruling that this was a matter that required
legislative not judicial action, missing a golden opportunity, as SASOD
member Zenita Nicholson put it, to give life to the constitution. Some
may not find this altogether surprising, in light of his past judgments
on indigenous rights and sexual offences/women’s rights.

In the
former, Justice Chang has ruled in the first case ever decided in Guyana
regarding an indigenous land title claim on the basis of a doctrine
long overturned around the Commonwealth, including in Belize. In that
case, Chang CJ said in his judgment that if mining operations were
affecting the claimant community, they would have retreated to other
areas! In relation to sexual offences/women’s rights, in the Greene case
last year the acting CJ quashed a rape charge against the former police
commissioner after embarking on a lengthy dissection of the
complainant’s evidence. Some might say that this is ordinarily the
function of the jury, but aside from those procedural questions the
decision underlined how modern legislation is often underused in this
country (in this case the much-touted Sexual Offences Act), and it also
highlighted the CJ’s conservatism in relation to rights’ issues – in
this case those being the rights of victims.

But Justice Chang’s
ruling comes as a timely reminder that our efforts to ensure that the
constitution is not a hollow instrument should also be directed beyond
the courts. The role of parliamentarians rightly deserves scrutiny. In
1997, instead of updating and harmonizing the laws, the government
simply increased penalties for all offences across the board (begging
the question as to whether these changes nullify the immunity of Section
153 (1) from constitutional challenge). What does it mean that those
persons elected to represent all Guyanese, and who have overseen
important constitutional reforms that are completely at odds with many
of these laws, have never bothered to address whether the offences
should be kept in the first place? Remember too that parliament
capitulated to objections emanating mainly from some religious quarters,
sidelining the sexual orientation bill in the constitutional reform
process so that it is not included as a basis for discrimination in the
Guyana Constitution.

The constitutional challenge to the
cross-dressing law in Guyana holds crucial lessons for the Caribbean,
and we should pay close attention to the case as it makes its way
through the appeals process. It brings us face to face with the violent
and exclusionary legacies of our colonial past that haunt our laws and
lives today, marking some as more deserving and equal than others. It
reminds us that laws can be selectively applied to uphold a status quo
that protects the few, where those without the so-called respectability
of money and power can be regularly and readily targeted for
persecution. Those who have brought the case and the organizations they
have formed like Guyana Trans United and the Society Against Sexual
Orientation Discrimination, are keeping a necessary spotlight on
discrimination on the basis of sexual orientation and gender identity.
Their advocacy asks us to consider whether the freedoms that some of us
enjoy in the Caribbean are based on the unfreedom of others. Surely this
is not the lesson to be learned from the struggles of our ancestors.
This
struggle, at a fundamental level a struggle for psychic decolonization,
is captured by Bob Marley’s summons to emancipate ourselves from mental
slavery. What futures are we constrained to imagine if we tether
ourselves to the worst dimensions of our pasts? If we are to see
ourselves as one people (Guyana), one people out of many (Jamaica), a
space where every creed and race find an equal place (Trinidad &
Tobago), then let us work together for a more generous and compassionate
notion of freedom that can truly include all of us and all of
ourselves.