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PANCAP Welcomes the ruling of the Caribbean Court of Justice (CCJ). This is another vitory for Human Rights in the region. PANCAP commends the litigants as well as the legal team and supporters for staying the course.

On Tuesday, 13 November 2018, the Caribbean Court of Justice delivered its decision in the case of McEwan and others v Attorney General of Guyana. The CCJ is Guyana’s final court of appeal.

The Court ordered that Section 153(1)(xlvii) be struck from the laws of Guyana and that costs are to be awarded to the appellants in the appeal before the CCJ and in the courts below.

A panel of five judges heard oral arguments in the case on 28 June 2018: the Hon. Mr. Justice Adrian Saunders, President, the Hon. Mr. Jacob Wit, the Hon Mr. Justice Winston Anderson, the Hon. Mme Justice Maureen Ragnauth-Lee and the Hon. Mr. Justice Denys Barrow.

The video recording of the four hour hearing is available at:

http://www.caribbeancourtofjustice.org/audio/gycv2017-015/20180628/gycv2017015_280618.mp4

CASE BACKGROUND

On 6 February 2009, seven persons were arrested under the 1893 Summary Jurisdiction (Offences) Act section 153 (1) (xlvii) for being a “man’, and in ‘any public way or public place’ and for ‘any improper purpose’, appearing in ‘female attire’, which is a summary offence. They spent the weekend locked up at Brickdam Police Station in Georgetown.

“Man” under this summary offense has been treated by state officials as including persons whose birth certificates describe them as “male” and who identify as transgender or trans women.

The Acting Chief Magistrate hearing the case on 9 February 2009 in the Georgetown Magistrates Court, told the seven that they were confused about their sexuality and that they were men, not women, and advised them to go to church. They were convicted and ordered to pay a fine of GUY $7,500 each.

In 2010, four of the arrested persons—Gulliver (Quincy) McEwan, Angel (Seon) Clarke, Peaches (Joseph) Fraser and Isabella (Seyon) Persaud—and the Society Against Sexual Orientation Discrimination (SASOD), filed a constitutional action arguing that the law was inconsistent with the Guyana Constitution 1980. All four litigants identify as trans persons.

Their main argument was that this 1893 vagrancy law, which uses terms like ‘improper purpose’, ‘male attire’ and ‘female attire’, is very vague and fails to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”

“… legal provisions which interfere with individual rights must be formulated with sufficient precision to enable a citizen to regulate his conduct.”

Observer Publications v Matthew, Privy Council, appeal from Antigua and Barbuda, 2001

The litigants also argued that the law violated the right to freedom of expression since clothing is a form of expression that communicates ideas and representations of personality, identity, and beliefs. They also argued that the law violated the constitutional guarantee of equality before the law and non-discrimination and they challenged the conduct of the magistrate. 

Source: PANCAP

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CMLF News Issue #7
27th January 2016