Guyana, Caribbean Court of Justice, Quincy McEwan and Ors v. Attorney General of Guyana [2018] CCJ 30 (AJ)

• Jurisdiction: Guyana
• Subject Matter: Right to equality,Cross dressing,Transgendered persons,Right to freedom of expression

1. Identification of the Sentence

Guyana, Caribbean Court of Justice, Quincy McEwan and Ors v. Attorney General of Guyana [2018] CCJ 30 (AJ).

2. Abstract

Four of the appellants, who identify as transgender persons, were arrested, convicted and punished for cross-dressing

in public. They were charged with loitering and wearing female attire in a public place for “an improper purpose”.

They argued, however, that the section violated their constitutional rights to equality and non-discrimination and

freedom of expression. The Caribbean Court of Justice agreed with the appellants that their rights had been violated

and ordered that the section be struck from the laws of Guyana.

3. Facts

Four of the appellants, who identify as transgender persons, were arrested, convicted and punished for cross-dressing

in public. At the time of the arrests, McEwan was dressed in a pink shirt and a pair of tights and Clarke was wearing

slippers and a skirt. A few hours later, Fraser and Persaud who were dressed in skirts and were wearing wigs, were

also arrested by the police.

The appellants spent the weekend in police custody and they received no explanation as to why they had been arrested

and detained. They first learned of the charges, of loitering and wearing female attire in a public place for “an

improper purpose” in violation of section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, when they were

taken to the Georgetown Magistrate’s Court on the following Monday.

The appellants all pleaded guilty and were convicted and sentenced to a fine for cross-dressing in public. While

imposing the sentence, however, the Magistrate told them that they should go to church and give their lives to Jesus

Christ, and advised them that they were confused about their sexuality.

In conjunction with the Society Against Sexual Orientation Discrimination (SASOD), the appellants challenged the

law on several grounds before the High Court of Guyana. They argued that section 153(1)(xlvii) was discriminatory

and inconsistent with the Constitution of Guyana. However, both the High Court and the Court of Appeal denied the

constitutional challenges. The appellants took their case to the Caribbean Court of Justice (CCJ) arguing that the law

violated their constitutional rights to equality and non-discrimination and freedom of expression.

The CCJ held that section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act was not immune from judicial

scrutiny just because it was a pre-independence law, that the section violated the first four appellants’ right to

equality, and that the section violated the first four appellants’ right to freedom of expression guaranteed to them

under Article 146 of the Constitution. They also held that the section offended the rule of law given its vagueness,

that SASOD was a necessary and proper party to the proceedings, and that the remarks of the Magistrate were

inappropriate. The CCJ therefore ordered that Section 153(1)(xlvii) be struck from the laws of Guyana.

4. Decision

The issues before the Caribbean Court of Justice (CCJ) were i) whether section 153(1)(xlvii) of the Summary

Jurisdiction (Offences) Act was immune from judicial scrutiny because it had been saved as a pre-independence law;

ii) whether section 153(1)(xlvii) violated the first four appellants’ right to equality and non-discrimination guaranteed

to them under Article 149 and 149D of the Constitution; iii) whether section 153(1)(xlvii) violated the first four

appellants’ right to freedom of expression guaranteed to them under Article 146 of the Constitution; i v) whether

section 153(1)(xlvii) offended the rule of law given its vagueness with the use of the terms “improper purpose”,

“male attire”, and “female attire”; v) whether SASOD was a necessary and proper party to the proceedings; and v i)

whether the remarks of the Magistrate were appropriate.

On the first issue, the CCJ held that section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act was not

immune from judicial scrutiny just because it was a pre-independence law. On the basis of earlier decisions like

Nervais v. The Queen

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, the CCJ held that it was not prevented by the savings law clause from testing section

153(1)(xlvii) for its compatibility with the Constitution. As a result of various amendments to the Act post-

independence, the CCJ held that the section had lost its character as an existing pre-independence law. The Court

also concluded that this law was from a different time and no longer served any legitimate purpose in Guyana.

Concerning the second issue, the CCJ held that section 153(1)(xlvii) violated the first four appellants’ right to equality

under Article 149D and non-discrimination guaranteed to them under Article 149 of the Constitution. The CCJ

affirmed that at the heart of the right to equality and non-discrimination was a recognition that a fundamental goal

of any constitutional democracy is to develop a society in which all citizens are respected and regarded as equal.

Article 149 gave effect to this goal. Although cross dressing was practiced by various persons, section 153(1)(xlvii)

had an extremely adverse impact on transgendered persons, particularly those who identified with the female

gender. It infringed on their personal autonomy which included both the negative right to not be subjected to

unjustifiable interference by others and the positive right to make decisions about their own lives.

On the third issue, the CCJ held that section 153(1)(xlvii) violated the first four appellants’ right to freedom of

expression guaranteed to them under Article 146 of the Constitution. A person’s choice of attire was inextricably

bound up with the expression of his or her gender identity, autonomy and individual liberty. The CCJ held that this

choice was an expressive statement protected under the right to freedom of expression.

Concerning the fourth issue, the CCJ held that section 153(1)(xlvii) offended the rule of law given its vagueness with

the use of the terms “improper purpose”, “male attire”, and “female attire”. The CCJ held that the legislation served

no legitimate purpose as it was unconstitutionally vague. The purpose of penal statutes was to allow citizens to

determine what conduct was prohibited. It would only allow law enforcement officials to use subjective moral or

value judgments since there were no details or examples as to what was an “improper purpose”, thus leaving

transgendered persons uncertain as to what was permitted.

On the fifth issue, the CCJ held that SASOD was a necessary and proper party to the proceedings. The CCJ stated

that SASOD, given its mandate, had a real and genuine interest in the legislation under challenge since it could be

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Barbados, Caribbean Court of Justice, Nervais v The Queen and Severin v The Quee n [2018] CCJ 19 (AJ)

applied in future to any member of the general public including its other members. As such, in constitutional

challenges, courts should adopt a liberal approach in affording standing to individuals and entities.

Concerning the final issue, the CCJ held that the remarks of the Magistrate were inappropriate and when litigants

appear before the courts, they are entitled to a fair hearing before an impartial tribunal in accordance with section

144 of the Constitution. Judicial officers must therefore safeguard against any inherent prejudices they may have and

not use the bench to proselytise or express any stereotypical thinking.

Based on the above, the CCJ held that section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act was not

immune from judicial scrutiny just because it was a pre-independence law, that section 153(1)(xlvii) violated the

first four appellants’ right to equality under Article 149D and non-discrimination guaranteed to them under Article

149 of the Constitution, and that section 153(1)(xlvii) violated the first four appellants’ right to freedom of expression

guaranteed to them under Article 146 of the Constitution. They also held that section 153(1)(xlvii) offended the rule

of law given its vagueness, that SASOD was a necessary and proper party to the proceedings, and that the remarks

of the Magistrate were inappropriate. The CCJ therefore ordered that Section 153(1)(xlvii) be struck from the laws

of Guyana and that costs be awarded to the appellants in the appeal before the CCJ and in the courts below.

4.1 Concurring Judgment of The Honourable Mr. Justice Anderson

The Honourable Mr. Justice Anderson commented that the law wrongly sought to criminalise a person’s state of

mind as there is no test to determine what is an “improper purpose”. He held that section 153(1)(xlvii) was an

unconstitutional extension of criminal liability along with being unacceptably vague. Anderson JCCJ stated that it

was accepted that intentions by themselves are not constitutionally the proper subject of the criminal law.

4.2 Concurring Judgment of The Honourable Mme. Justice Rajnauth-Lee

Mme. Justice Rajnauth-Lee agreed with the judgment. She, however, focused on the vagueness of section

153(1)(xlvii). She held that the continued exisistence of a law that was so vague and uncertain effectively diminished

the rights of the appellants to the protection of the law which was guaranteed under the Constitution of Guyana. She

also held that it facilitated arbitrary enforcement by public officials.

4.3 Concurring Judgment of The Honourable Mr. Justice Barrow

Mr. Justice Barrow agreed with the judgment of the CCJ. He, however, added that the objective of laws such as these

was not to promote fairness, social justice or equality. The specific offence targeted homosexual conduct. He also

addressed the State’s argument that the judiciary should be cautious not to succumb to deciding on issues of social

policy and legislative reform and stated that the courts were only doing what the Constitution provided, that is,

hearing challenges to existing laws. Barrow JCCJ said that a State must also acknowledge, on its own accord, when

a law like section 153(1)(xlvii) no longer served a social or legal purpose.

5. Jurisprudence

 Jamaica, Judicial Committee of the Privy Council, Robinson v R (1985) 32 WIR 330

 Guyana, Constitutional Court, Abdool Salim Yasseem and Thomas v The State (No. 2) (1994) 56 WIR

274

 United Kingdom, Queen’s Bench, R v Crown Court at Wood Green ex parte DPP [1993] 1 WLR 723.

 United States, Supreme Court, Papachristou et al v. City of Jacksonville 405 U.S. 156 (1972)

 Jamaica, Judicial Committee of the Privy Council, Watson v. R (2004) 64 WIR 241

 Barbados, Caribbean Court of Justice, Nervais v The Queen and Severin v The Queen [2018] CCJ 19

(AJ)

 Barbados, Caribbean Court of Justice, AG of Barbados v. Joseph & Boyce [2006] CCJ 3 (AJ), 69 WIR

104

 St. Lucia; St. Vincent and the Grenadines, Eastern Caribbean Supreme Court, Hughes v R and Spence v

R [2002] 2 LRC 531

 St. Lucia, Judicial Committee of the Privy Council, Spence v R [2001] UKPC 35, 59 WIR 216

 Jamaica, Judicial Committee of the Privy Council, DPP v Mollison (No. 2) (2003) [2003] UKPC 6, 64

WIR 140

 IACtHR, Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago, IACHR Series C no

9, IHRL 1477, Judgment dated 21st June 2002

 Guyana, High Court, Thomas v AG (Unreported) June 17, 2011

 Barbados, Judicial Committee of the Privy Council, Boyce & Joseph v R [2005] 1 AC 400, [2004] UKPC

32

 IACtHR, Proposed Amendment to the Political Constitution of Costa Rica related to Naturalization,

Advisory Opinion OC-4/84, January 19, 1984, Series A No. 4

 High Court, Belize, Roches v Wade Action No. 132 of 2004

 Trinidad and Tobago, High Court, Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc and Others

v The Attorney General of Trinidad and Tobago HCA No S2065/2004

 Canada, Supreme Court, Law v. Canada [1999] 1 SCR 497

 Canada, Supreme Court, Irwin Toy Ltd v Quebec (AG) [1989] 1 SCR 927

 India, Supreme Court, National Legal Services Authority v Union of India and Ors [2014] 4 LRC 629

 United States, Supreme Court, Kolender v. Lawson, 461 U.S. 352

 Mauritius, Judicial Committee of the Privy Council, Sabapathee v. State [1999] 4 LRC 403

 Trinidad and Tobago, Court of Appeal, Dumas v The Attorney General Civil Appeal No. P 218 of 2014

 Belize, Caribbean Court of Justice, Maya Leaders Alliance v. Attorney General of Belize [2015] CCJ 15

(AJ).

 United Kingdom, King’s Bench, Ledwith v Roberts [1936] 3 All ER 570; [1937] 1 KB 232

 Canada, Supreme Court, R v Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606

 United States, Ohio Supreme Court, City of Columbus v. Rogers 324 N.E.2d 563 (Ohio 1975)

 United Kingdom, R v Boulton (1871) 12 Cox CC 87

6. Key words

 Right to equality

 Cross dressing

 Transgendered persons

 Right to freedom of expression