My Wardrobe, My Right: Trailer for documentary on the dress-code law, made by SASOD (Society Against Sexual Orientation Discrimination), Guyana
Around 8:30 on the night of February 6, 2009, two young women, Falatama and Gulliver, were planning to go off to a snack shop in Georgetown, Guyana’s capital. Instead, as they stood on a street corner waiting for a taxi, a police car drove up. Officers arrested them both.
They were hauled to Brickdam Police Station, photographed, and made to strip. Then the policemen threw them in a cell, and held them there for a weekend during which three other arrested women joined them. They asked repeatedly why they’d been detained, but the cops refused to answer. They were denied a lawyer or a phone call. Only on Monday, when they were all dragged before a magistrate, did they learn the charges. This inaugurated a court case that, pursued to higher tribunals, lasted four-and-a-half years. The issue was never what they were doing on that streetcorner, but what they were wearing: Falatama, a jersey top, skirt, and slippers; Gulliver, a pink shirt and tights. Those clothes were against the law.
That month, police in Georgetown launched a crackdown on trans* folk. Between February 6 and 10, cops arrested at least eight people, picking up some twice. Police ordered them to “bend over” for a “search” after they stripped in the police station; they told them to put on “men’s clothing.” Chief Magistrate Melissa Robertson fined detainees GY$7,500 (US$36) each, under a law dating from 1893, when Guyana was a British colony. It criminalizes anyone who
being a man, in any public public way or public place, for any improper purpose, appears in a female attire; or being a woman, in any public public way or public place, for any improper purpose, appears in a male attire.
The magistrate also offered them free (except for the $7,500) advice: to “go to church and give their lives to Christ.”
Last week, on September 6, Guyana’s Chief Justice delivered a ruling in the case. I’d followed the matter since the victims were first arrested — early on, Human Rights Watch produced one of the first international statements on the arrests — so it held more than usual interest for me. The decision was a mixed bag. One victory: the justice found the police had violated the claimants’ rights by holding them incommunicado and denying them contact with a lawyer; he awarded them damages. Curiously, he held that there was no particular inconsistency in a magistrate, an officer of a secular state, telling the arrested victims to go to church:
The Court has extreme difficulty in accepting the proposition that the mere exhortation … to the applicants to attend Church and to give their lives to Jesus Christ constituted a hindrance to their freedom of thought and of religion of the applicants. Otherwise, every religion leader, in propagating the religion to which he or she subscribes would be guilty … At the highest, the Chief Magistrate can be accused of proselytising. But, proselytising does not constitute a hindrance to freedom of thought and of religion.
The way is thus clear for every local judge to bellow and Bible-thump like a street-corner preacher.
But the Chief Justice refused to find the “cross-dressing” law unconstitutional. He held that it was not discriminatory (after all, he wrote, it applied to both biological men and biological women); moreover, he considered its appalling vagueness (what defines the masculinity or femininity of “attire”?) not to be a constitutional issue. He tried, at the same time, to constrict the law’s ambiguity somewhat in his decision. For instance, he observed that attire means only textiles, not other bodily accoutrements.
It is not an offence for a male person to wear a female head wig or ear rings in a public way … Nor is it an offence for a female person to wear a pair of male shoes or finger rings.
The Justice’s most important concession, though, lay in emphasizing the one significant limitation in the text of the law.
It is important to reiterate that neither male nor female is prohibited … from being cross-attired in a public way or place if the purpose of doing so is not improper … It is only if such an act is done for an improper purpose that criminal liability attaches. Therefore it is not criminally offensive for a person to wear the attire of the opposite sex as a matter of preference or to give expression to or to reflect his or her sexual orientation. [emphasis added]
This is generous, and surreal. Never mind that the decision seems to confuse “gender identity” with “sexual orientation.” What the hell is an “improper purpose”? It’s for courts to decide. It is “ultimately a question of fact in the prevailing social conditions and particular circumstances.” This of course leaves individuals in exactly the state where the law should not leave them — in a quandary as to whether any particular act is illegal or no. I want to go to the snack shop. Is that an improper purpose or not? You can’t be sure till you’re arrested. Tell it to the judge: he’ll determine your motive’s decency. Every courtroom becomes a priest’s confessional, exposing inner states of mind. Gulliver — legal name “Quincy McEwan,” now head of Guyana Trans United — said after the ruling, “The trans community is very worried, and still fearful of arrests, in light of this decision.”
It’s easy to see, in fact, what was on this particular judge’s mind. Same-sex sex is still illegal in Guyana, under another colonial law that has been debated lately, but is not yet near repeal. Sex work is also criminal, despite the advocacy of a nascent sex workers’ rights group. And laws against loitering are meant for use against both groups — against cruising or gathering with others of your own kind. Those purposes are “immoral.” So both “sexual orientation” and “gender identity” are relegated to the realm of pure expression. You can dress to express, but the minute you dress to impress — to attract attention, to encourage somebody to find you attractive, to be noticed at all — you’re potentially a criminal. This leaves hardly any room to breathe, or to be, at all.
I know many people on the excellent legal team working on this case, and, despite the partial victory, it is good news that they intend to appeal. The judge’s ruling reveals the insane niceties of distinction inherent in enforcing any gendered dress code. What is improper? What, indeed, is “attire”? The built-in ambiguities — for as the definitions multiply, the uncertainties also amass — reveal the scope for repression that still remains: as well as the room for Puritanical inquests, not just into the character of clothing, but into the nature of a person’s yearnings, purposes, and desires. Such a law is intrinsically oppressive. It gets not only into your clothing choices, but under your skin. Dress codes are no less totalitarian, in their demands upon their victims, in Georgetown than they are in Teheran.
But where are all the humane and earnest internationalists who lament the horrors of the hijab? Where are the North American and European interventionists who urge bombing Iran to burn the veils off women? Where is FEMEN, that coven of bare-breasted opponents of all repressive dress codes? Why aren’t they dancing on the streets of Georgetown in solidarity with their forcibly clothed sisters? Could it be that the mammary-loving male Svengali who decides their deeds and schedules dislikes the tropical climate?
The truth is, most of our Western activists object only to dress codes that target women like them: their middle-class sisters who dream, at least in the Western imagination, of a liberation contiguous with their own. They don’t know about the other codes that hem in and constrain the poor, the different, the transgender, the sex worker and the street-bound. And if they knew, they wouldn’t care. Consider British writer Suzanne Moore’s complaint last winter about the “Brazilian transsexual” who represents all the bodily norms she and her friends resent and resist. Never mind that Brazilian trans* people get murdered right and left. What matters is, they look like women we don’t like.
There’s still a deep narcissism in our conception of rights. It’s just that self-love is now disguised by being globalized, subsumed in and then projected on a planetary scale. In this economy of imagined neighborhoods, sympathy is easy, because you find your likeness in far-off places: countries you can’t and wouldn’t visit but that are, exactly in consequence of their opacity, no terra incognita but a reassuring mirror. And outside this circuit of similarities, there are the unfamiliar and unimaginable. Don’t worry: they can make no claims.
Here is the press release on the Chief Justice’s decision, from the Society Against Sexual Orientation Discrimination (SASOD), Guyana Trans United (GTU), Caribbean Vulnerable Communities Coalition (CVC), Caribbean Forum for Liberation and Acceptance of Genders and Sexualities (CariFLAGS) and the Faculty of Law University of the West Indies Rights Advocacy Project (U-RAP)
Constitutional Court rules that Cross-Dressing is not a Crime if Not for “Improper Purpose” – Rights Groups Plan Appeal on Dubious Decision
On Friday afternoon, September 6, 2013, the Honourable Chief Justice (Ag.), Mr. Ian Chang delivered his judgment in Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) vs. Attorney General of Guyana. Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) provision makes a criminal offence of a man wearing female attire, and a woman wearing male attire, publicly, for any improper purpose. The Chief Justice said that cross-dressing in a public place is an offence only if it is done for an improper purpose.
The Chief Justice also found that the police violated the human rights of the four litigants in the case during their crackdown in February 2009 when they arrested them under section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act and he awarded each of the four arrested compensation of $40,000 (GYD) for breach of their rights to be informed as soon as reasonably practicable as to the reason(s) for their arrests under Article 139 (3) of the Guyana Constitution.
Chief Justice Chang also decided that section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act, is immune from the constitutional challenge brought by the four transgender litigants and their supporting organisations. As an 1893 law, pre-dating Guyana’s independence, the Chief Justice said “legislative rather than curial action is necessary to invalidate the provision.” The litigants are preparing to appeal this and other aspects of Friday’s court decision.
Colin Robinson, manager of the CariFLAGS secretariat based in Trinidad, praised the court’s finding that “It is not criminally offensive for a person to wear the attire of the opposite sex as a matter of preference or to give expression to or to reflect his or her sexual orientation.” The court also found that the law applies only to “attire” and not other gendered accoutrements such as head wigs, ear rings or even shoes. “The learned Chief Justice, however, has confused sexual orientation with gender identity,” Robinson commented.
Reacting to the judgment, the first-named applicant, Quincy McEwan, better known as Gulliver, who is also the Director of Guyana Trans United (GTU), noted that, “The Chief Justice was relatively clear that once you are expressing your gender identity, it’s not criminal for a man to wear female attire. But 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 court did not clarify what improper purposes gave rise to the arrests in this case.
The Chief Justice was not convinced the cross-dressing law amounted to ‘discrimination’ on the basis of gender, which would have been in violation of the Guyana Constitution. The court also ruled that the prohibition in the 1893 law is against persons of both genders for the same conduct and, as such, does not amount to discrimination based on gender. Se-shauna Wheatle is Jamaican and Lecturer in Law at Exeter College at the University of Oxford and a researcher in the fields of comparative human rights law and comparative constitutional law. Wheatle, who is the author of the 2013 report “Adjudication in Homicide Cases involving Lesbian, Gay, Bisexual and Transgender (LGBT) Persons in the Commonwealth Caribbean,” said that “The constitutional moment presented by this case demanded more detailed assessment of the issue of discrimination against transgender persons.” She observed that “The reasoning of the learned judge omitted any discussion of the prescription of gender roles to individuals according to their sex and the consequent requirement that individuals dress according to those prescribed gender roles. There was no discussion of the way in which the challenged section reflected such prescription of gender roles or the impact of this dynamic on persons who are transgender.”
The court also ruled that SASOD had no locus standi (standing) in the matter since the individual applicants brought the claim in their own names as the persons who were personally aggrieved. The Guyana Constitution was the first in the English-speaking Caribbean to give “an association acting on behalf of its members” the right to bring a claim before the Constitutional Court that there has been a breach of the guaranteed fundamental rights. The standing of SASOD is one of the issues which the litigants expect to argue before the Court of Appeal.
Similar sentiments were echoed by Zenita Nicholson, Secretary of SASOD’s board of trustees. “I feel the court lost a golden opportunity to give life to the Guyana constitution by vitiating this 1893 law against cross-dressing and establishing that all Guyanese are entitled to fundamental rights and freedoms, including our transgender citizens, who unfortunately will continue to be vulnerable to human rights abuses, with this dubious decision. We must appeal it,” she said.
Dr. Arif Bulkan who argued the case on behalf of the litigants is a lecturer in constitutional law and human rights law at the Faculty of Law, UWI, St. Augustine and a coordinator of the Faculty of Law UWI Rights Advocacy Project (U-RAP), which has managed the litigation. Dr. Bulkan said that“This case raises issues of great public and constitutional importance relating to the scope of 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. The region is closely watching this case.” He added that the legal team for the litigants, which includes Mr. Gino Persaud as instructing counsel, looks forward to arguing these important human rights concerns before the Court of Appeal. He said “In the content of our laws and details of our conduct, we must give meaning to the strong commitment in the Constitution to eliminate ‘any and every form of discrimination’ in Guyana.”
The case of McEwan, Clarke, Fraser, Persaud and SASOD v. Attorney General was initiated four years ago following the February 2009 conviction and fine of seven individuals for violating section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act. The 1893 law makes it a criminal offence for men to wear female attire and for women to wear male attire “in any public way or public place, for any improper purpose.” Other activities criminalised in section 153(1) are: grooming an animal in a public place; placing goods in a public way in town; beating a mat in a public way; flying a kite in the city; loitering around a shop and hauling timber in a public way. Unrepresented and unaware of their rights, the defendants were detained in police custody over the weekend, and then hustled through the legal system and fined $7,500 (GYD) each.
U-RAP co-founder, attorney-at-law and public law lecturer at the University of the West Indies (UWI), St. Augustine, Dr. Arif Bulkan explained that this colonial law was part of repressive penal regimes instituted in the second half of the nineteenth century throughout the Caribbean to severely constrain the lives and actions of recent freed Africans and the newly arrived indentured servants. Bulkan notes that “Despite the discriminatory aspects of these colonial laws, and their low regard for the majority colonial populations, vagrancy laws like section 153(1) have been kept in effect long after independence.” He adds that “The law is plainly at odds with the Guyana Constitution which states that it is committed to ‘eliminating every form of discrimination.’”
Tenth anniversary video produced by Society Against Sexual Orientation Discrimination (SASOD), Guyana