Defence completes arguments in cross-dressing motion

Attorney Arif Bulkan has completed arguments in the matter brought against the state by four male sex workers convicted of cross-dressing in 2009.
The men, Quincy McEwan, Seon Clarke, Joseph Fraser and Seyon Persaud have collaborated with the Society against Sexual Orientation Discrimination (SASOD) to initiate the litigation against the attorney general in a constitutional motion.

Gino Persaud

Arif Bulkan

Nigel Hughes

The applicants are questioning the 1893 cross-dressing legislation which 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 or for an improper purpose. However, lawyers for the men including Nigel Hughes and Gino Persaud are contending that the laws are selectively applied since no woman has ever been arrested for donning male clothing.
The case of McEwan, Clarke, Fraser, Persaud and SASOD against the attorney general was initiated four years ago following the February 2009 conviction and fine of seven individuals found guilty of violating Section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act.
The litigants’ defence team is receiving coordinating support from the Faculty of Law University of the West Indies (UWI) Rights Advocacy Project (U-RAP).  Bulkan, who is a U-RAP co-founder, presented his case before acting Chief Justice Ian Chang on May 10, in the constitutional challenge against the 19th Century law.
The U-RAP co-founder, who works as a public law lecturer at UWI’s St Augustine campus, argued that the colonial law was part of repressive penal regimes instituted in the second half of the 19th Century throughout the Caribbean with an aim to severely constrain the lives and actions of recently freed Africans and the newly-arrived indentured servants.
Bulkan pointed out that such laws like Section 153(1) have been kept in effect long after independence despite the discriminatory aspects of the colonial laws, and their low regard for the majority colonial populations.
He adds that “the law is plainly at odds with the culture and provisions of the local Constitution which states that Guyana is committed to eliminating and eradicating every form of discrimination.”
According to Bulkan, the matter raises key questions about the outdated laws are being randomly applied, resulting in an increased vulnerability among poor and powerless people.
The U-RAP has emphasised that the cross-dressing law is unconstitutional because it violates fundamental rights to equality and non-discrimination.
The applicants argued that the law violates many provisions of the amended Guyana Constitution, particularly the rights to equality and non-discrimination in Articles 149 and 149D.

Applaud
Red Thread’s Dr Alissa Trotz applauded SASOD’s initiation of litigation, stating that it kept a necessary spotlight on discrimination on the basis of sexual orientation and gender identity.
Dr Trotz, who serves as University of Toronto’s Associate Professor of Women, Gender and Caribbean Studies, pointed out that the issue highlighted how laws can be selectively applied to uphold a status-quo that protects and works for the few, and where those without the so-called respectability of money and power can be regularly and readily targeted for persecution.
“They make me so proud to be Caribbean,” Dr Trotz remarked.
Litigant, Seon Clarke questioned on Friday, “How can we still have these laws today? They are used to harass a particular set of Guyanese and it is not right. All the lawyers in court today, were in gowns that looked very much like dresses, shouldn’t they be charged too?”
Another litigant, Seyon Persaud added that the general attitude of the community is still very discriminatory and violent which makes it extremely difficult to access employment, health care and just simply live.
“I am Guyanese too and deserve to have all these rights like everybody else,” said Persaud.
Another hearing is scheduled for June 4 in the High Court.
The hearing is said to have come at an opportune time when Guyana is using several chances to engage in a rational discourse surrounding key human rights issues.
As part of the Human Rights Council’s Universal Periodic Review process, a special select committee of Parliament is considering arguments from a spectrum of stakeholders on law reform related to three issues: corporal punishment in schools, the death penalty and the decriminalisation of homosexuality.
There are currently on-going nationwide community consultations that would increase public engagement and education which are critical to changing perceptions.
SASOD’s Secretary Zenita Nicholson explained that the constitutional challenge is part of a wider network of opportunities to examine the way people interact with each other.
It is also to examine whether state agencies uphold the rights and dignity of all citizens and the extent to which laws undermine equality. SASOD is a Guyana-based human rights advocacy group which is committed to promoting equal rights for all people, with a focus on eliminating discrimination on the grounds of sexual orientation, gender identity and gender expression.
U-RAP’s objective is to promote human rights and social justice in the Caribbean by undertaking and participating in human rights litigation in collaboration with human rights lawyers and organisations.