Decision on Guyana’s dress code: Teheran on the Caribbean

 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.

Brickdam Police Station, Georgetown, Guyana

Brickdam Police Station, Georgetown, Guyana

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.

This is OK. Just don't try putting on a necktie: Guyanese policewomen wearing sensible shoes

This is OK. Just don’t try putting on a necktie: Guyanese policewomen wearing sensible shoes

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. 

FEMEN objects to hijab and male oppression, with large phallic object behind

FEMEN objects to hijab and male oppression, with large phallic object behind

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.

Valdecir, trans* woman murdered in Brazil, February 2011

Valdecir, trans* woman murdered in Brazil, February 2011

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

Georgetown, Guyana

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.

20090319another-235x300

Fur counts as attire, apparently: Cartoon from Stabroek News, March 2009

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.

Tell me about your purpose: Chief Justice Ian Chang

Tell me about your purpose: Chief Justice Ian Chang

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.

Instructing counsel Gino Persaud

Instructing counsel Gino Persaud

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.

Arif Bulkan

Arif Bulkan, University of the West Indies

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

November 20, International Transgender Day of Remembrance

Sunday was the International Transgender Day of Remembrance, a day to mourn the victims of violence based on gender identity and expression.  I was on a New Hampshire mountain remote from any opportunities for commemoration. Up there, though, one has a chance to think, and I thought a bit about the incomprehensions and distances between sexual orientation and gender identity as issues uneasily sharing a movement.

So let me talk about two different lives.

Back in 2000, that innocent time, my friend Brendan Fay approached me with a proposal. Brendan has been a heroic queer activist in and out of New York’s Irish community ever since Roger Casement was a child among the ashes, or maybe since the blight first descended on the tuber. The 100th anniversary of Oscar Wilde’s death, in disgrace in a cheap Paris hotel, was impending, and Brendan wanted to commemorate it:  to celebrate the Irish writer as a freedom-lover, a cosmopolitan and Utopian socialist who imagined a world united by unforeseeable and unprecedented solidarities. I was then program director of IGLHRC (the International Gay and Lesbian Human Rights Commission); so Brendan came to ask if there were some urgent rights abuse in the world against which we could stage a demonstration on the anniversary, to focus attention both on the violation and on Wilde’s enduring spirit of dissent.

Vanesa Lorena Ledesma: cardiac arrest

We had one situation that we were following closely. Vanesa Ledesma, a trans woman, a sex worker, and an activist with the Asociación Travestis Unidas de Córdoba, was arrested in Córdoba, Argentina, on February 11, 2000, after a fight among patrons of a bar. She was kept incommunicado in detention, and five days later she was dead. Police attributed her death to ”cardiac arrest.” An autopsy showed evidence of beating, with severe contusions on the arms, shoulders,  back and feet. Friends released photographs of her disfigured corpse. Activists demanded a full investigation.

Thus on November 30, a small group, perhaps two dozen of us, assembled in front of the Consulate of Argentina in New York. Some carried pictures of Ledesma, some pictures of Oscar Wilde. There were several trans women and a lot of Irish people in green. I seem to remember a bagpipe player, but memory may be embellishing.

After a while the Consul General, an elegant and diplomatic man, invited us into the building to meet. I said my bit about the urgent need to investigate Ledesma’s death, and Brendan spoke about the importance of Oscar Wilde. The consul listened attentively but seemed confused about the connection. ”And are you also demonstrating at the Irish consulate?”

“No.”

“You realize that in Argentina, we are not responsible for … Irish affairs.”

“Yes.”

“And you do understand that Argentina is not responsible for the death of Mr. Wilde?”

I assured him it was a cold case.

He appeared unconvinced, and kept looking at us with tactful caution, as though we were the vanguard of an Irish plot to seize the sheep-friendly wastes of Patagonia.  As we left he shook my hand with exquisite courtesy. “I will certainly convey your demand for an investigation  to my government. And when I next see the Irish ambassador, I will tell him” – he paused, not at all sure what message could be passed on; but then he finished with a flourish of inspiration, “I will tell him there are matters he should investigate too!”

I remember this as a rather incongruous attempt to link two matters that perhaps should have stayed separate. But I also remember it precisely because of the contrast between the two lives, and deaths, we tried to commemorate. No wonder, in retrospect, that putting them together in front of the consulate was confusing.  It made me consider the fraught and difficult alliances between LGB people and that hanging T they like to attach to their advocacy, but only infrequently try fully to understand. The terms are different, the victories aren’t always congruent, and the suffering may estrange rather than being shared.

Wilde remains famous after his first century in the grave. His plays still play, his words still elicit laughter. No one outside some friends in Córdoba pays much attention to what Vanesa Ladesma said.   Everyone who remembers Wilde endows him with a psychology, with the depth and duality that are the necessary constituents of wit.  Vanesa Ladesma suffers the indignity of remaining a photograph, more vivid to most in her mutilated death than in the life she lived. I combed the Internet as well as my own files for a while, and I realized: I can’t find a picture of her while she was alive.

And this all has something to do with how we imagine sexuality as opposed to gender; the first a wellspring of mystery and power, the second an external and limiting imposition. Wilde’s sexuality was an interior fact, a reality within; he had the choice of keeping it a secret; it was his daring but also deliberate play with revelation and concealment that helped him climb to become the most famous British writer of his time; and it was his willed embrace of his truth beneath the unraveled mystery after his precipitate fall that gave him a conclusive dignity, and commends him to us and our posterity. Vanesa was branded, and hiding herself was never much of an option. She carried on her skin the marks of the contrast between who she said she was and who she was told to be. Her life was a courageous but constrained struggle against defining discourses from without.  Sexuality is something one experiences from the inside first. But gender fits you from the outside like a sanbenito of Spandex, imposed from birth.

This inflected, too, the vast differences in wealth and power between them. Wilde was born into a prosperous family, even if one in Britain’s closest colony. He manipulated the inside-outside game of appearances to amass celebrity and money (even if mostly in the form of debt); his ascent was what made his fall so shocking. Vanesa had no game to play; she was always on the outside, by class, by background, by the way she presented her body and the things she did with it.

I wrote somewhat earlier here that sexuality proliferates meanings. There are always spaces, in the way we imagine sexuality, to insinuate some new complexity or individuation or interpretation. Gender culls meanings, weeds them out. Everything has to boil down to the few available options, the old binaries, the one-two punch.

Because of that, insisting on your own authority over the significance of gender, or demanding to cross the yellow police lines laid across the territory, is one of the most dangerous things you can do. A few nights ago, I watched Woody Allen’s Zelig, for the first time in about 20 years. The hero — the nebbish as chameleon — is the ultimate conformist. He becomes like anybody he’s around, to the point where Allen’s little Jewish schlemiel, plopped down in 30s Germany, turns Nazi. He changes race, color, religion. The one thing he doesn’t alter, though, is gender. With women, he stays resolutely male.  Some shapes shift, but other transgressions remain unimaginable. Obviously there’s some squeamishness on Allen’s part about too much malleability; but then, Allen in a storm trooper’s uniform is, in a sick way, funny. Allen in a dress, in that time and that place, would have gotten killed.

Of course, I’m not trying to draw some absolute contrast between two classes of experience: to the contrary. Stephen Whittle, the grand British trans activist, once remarked that 90% of what we call homophobic violence is in fact transphobic violence.  The attackers and the haters aren’t really acting on some theory they have about what you do in bed. They’re responding to the gut sense you’re not “masculine” or “feminine” enough, that you act funny in a way that corrodes the barbed war supposed to keep the genders separate. I can’t vouch for the numbers, but this speaks to the feeling I’ve drawn from hundreds of interviews I’ve done across the world.  Sexuality is always linked to gender. But that’ s also because it’s always linked to power, and gender is one of the key points from which our understanding of power and powerlessness — that great, uncompromising binary that bisects all our lives — flows.

Self-identified lesbians and gays are also caught up in the struggle against the straitjackets of gender norms and the policing of bodies. But they try to construct their identities to give them ways and leeway to change the terms, escape the front lines, fight on their own territory. Trans people are, by definition, in the middle of the fight.

Vanesa Ledesma, by Tom Block

Part of the trans struggle, too, is clearly to reclaim the autonomy and interiority that the social regulation of the body — the control clamped down on the skin itself — tries to deny. This is a heroic fight, and it’s no detraction from its particularity to say that it’s one in which everybody has a stake: everyone who tries to maintain an identity separate from the state and others, everyone who tries to carve out a sphere of independent will in an increasingly programmed world, and then act it out with their bodies somehow and make it known. That’s why I mourn, among other things and names, the fact that I can’t find a photograph of the living Vanesa Ledesma.  I remember the iconic photographs of Khaled Said, the young Egyptian torture victim, before and after he was beaten to death; these images and the indignation they aroused helped spur a revolution. It seems a final indignity that Vanesa Ledesma has no “before.” She’s reduced to her own mutilation, defined by her death. She’s been commemorated since in paintings (available from Amnesty International for $3000); these too portray her shattered features after the police were finished with her. William Kennedy, in his great novel Ironweed, has one of his down-and-out characters reflect on an alcoholic woman sliding toward death: “Nobody’s a bum all their life. She hada been somethin’ once.”  Vanesa Ledesma was a lot before she died. The loss lies partly in how that life has been overridden.

The Trans Day of Remembrance website banners a few lines from Shakespeare:

My grief lies all within; And these external manners of lament

Are merely shadows to the unseen grief

That swells with silence in the tortured soul …

That’s from Richard III, the probably-queer monarch mourning his imprisonment by Bolingbroke. It speaks, though, to the struggle to reclaim the life within from the pressure and oppression beating down on the body. Critics for generations have treated Richard as a flagrant instance of self-absorption, lost in acting out his emotions, the King as drama queen. It’s on a trans web page, though, that I hear in these words their special dignity and the weight of their demand. The inner life against external manners: for Vanesa Ledesma, that meant something.

And yet, again, it’s a fight for all of us.