(By Sheila I. Velez-Martinez)
A Commentary on McEwan, Fraser, Clarke, Persaud and SASOD vs. AG of Guyana
On September 6, 2013, the High Court of the Supreme Court of Judicature of Guyana released an important decision regarding the country’s law prohibiting cross dressing “for an improper purpose.” The decision and order in McEwan, Fraser, Clarke, Persaud and SASOD vs. AG of Guyana includes both encouraging and troubling elements.
In the case, the High Court was called to address a constitutional challenge to section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act. Section 153(1)(xlvii) makes a criminal offence of a man wearing female attire, and a woman wearing male attire, publicly, for any improper purpose.
Chief Justice Ian Chang decided that section 153 (1) (xlvii) is immune from the constitutional challenge brought by the four transgender litigants and their supporting organizations. As an 1893 law, pre-dating Guyana’s independence, the Chief Justice stated “legislative rather than curial action is necessary to invalidate the provision.” In as much this provision was covered by the “savings clause” of the Guyana Constitution.
I join Inter American Human Rights Commissioner Rose-Marie Belle Antoine in her criticism. The savings clauses inserted in the independent constitutions across the Caribbean serve to perpetuate laws that were not products of the independent nations’ own desires; not the result of deep reflection about the nature and direction of the new Caribbean societies.
In a way the saving clause perpetuates legislation that is more foreign to the current Caribbean that the conducts they proscribe, which as Commissioner Bell Antoine has said “is quite ironic”.
The High Court in this decision decisively engaged in a discoursive change regarding the transgender community. Discourse elucidated by courts can be as important as the decision inasmuch as it can have democracy enhancing consequences as social movements move forward.
Chief Justice Chang went to great lengths in the tone and style of his opinion to distance the High Court from the conduct of the Chief Magistrate who handled their cases after the initial detention. According to the Decision, the Former Chief Magistrate Melissa Robertson told them that they were “confused about their sexuality and they were men and not women and that they must go to church and give their lives to Jesus Christ.”
The court referred to the plaintiffs consistently as “a transgendered person” – who although possessing male primary sexual characteristics, was identifying with the female gender. Because of his orientation, he was not conforming to masculine sex stereotypes such as the manner of dressing and comporting himself.”
In rendering the decision, the court recognised the existence of transgender identities, declaring that the law “does not proscribe trans-gender dressing per se.” The High Court went even further, stating, “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”.
As the decision articulates the transgender right to self it also demonstrates the inherent limitations of a formal equality framework for facilitating meaningful critical engagement with concepts of sex and gender. Although formal equality – treating trans-people the same as non-trans-people despite gender non-conformity – may reduce instances of blatant discrimination, it also serves to conceal and perpetuate the underlying stigmatisation of non-conformity to gender norms.
This is evident in the failure of the High Court to understand another crucial point raised by the plaintiffs. That in its application Section 153 also discriminates against the transgender plaintiffs inasmuch as because of their expression of their sexuality they are subject to additional criminal penalties if engaged in conduct vaguely labelled “improper”. The High Court reasoned that since the “prohibition is against persons of both genders for doing the same kind of acts; it cannot be successfully argued that the provision discriminates on the basis of gender”.
It is commendable that the High Court opens the door to the possibility of challenging discriminatory acts based on gender under the anti-discrimination provisions of article 149(2) of the Constitution. Unfortunately, the analysis of the High Court conflates the concepts of sex and gender. Gender is not merely the cultural manifestation of one’s biological sex. In order for gender to be understood as a topic for legal and political reform, it cannot be understood as flowing from one’s inclusion in one of two biologically determined sexes.
In other words, sex denotes the biophysical aspects of personhood associated with man and woman while gender denotes the social constructions understood as “male and female” or “masculine and feminine”. Gender tends to signify the personal appearance, personality attributes, and socio-sexual roles that society considers to be “masculine” or “feminine,” and which society imposes on individuals on the basis of sex assignments. Gender non-conforming people challenge this binary and expose the infinite possibilities of gender identities.
If we aspire to a system of justice that operationalises the protection of human rights and the principles of anti-subordination then, the formal binary articulation of gender rights will be incompatible with the complete protection of the rights of the gender nonconforming. Protecting this community requires acknowledging the ontological incompleteness of gender essentialism in representing the relational dynamics in our societies.