A transphobic colonial-era law banning “cross-dressing” was struck down by a Guyana court on Tuesday.
The Trinidad-based Caribbean Court of Justice ruled that Guyana’s law forbidding “men” from wearing “female attire” in public violated the rights of transgender people under the country’s constitution. The 1893 Summary Jurisdiction (Offences) Act forbids the wearing of women’s clothing for an “improper purpose.”
Justice Saunders, president of the five-member CCJ panel, claimed “law and society are dynamic, not static.
“A Constitution must be read as a whole,” Saunders claimed. “Courts should be astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful to its essence and its underlying spirit.”
“If one part of the Constitution appears to run up against an individual fundamental right,” he added, “then, in interpreting the Constitution as a whole, courts should place a premium on affording the citizen his/her enjoyment of the fundamental right, unless there is some overriding public interest.”
Four transgender women challenged the century-old law following their 2009 arrest. Officials claimed Angel Clarke, Peaches Fraser, Gulliver McEwan, and Isabella Persaud contravened the criminal codes by wearing skirts, tights, and wigs.
The four women were held in jail for three days. Fraser was denied access to a lawyer or a doctor, as well as the ability to make a phone call during her detention.
A year after their arrest, Clarke, Fraser, McEwan, and Persaud filed an appeal with the aid of the Society Against Sexual Orientation Discrimination (SASOD). Both the High Court and the Court of Appeal in Guyana denied their petition.
In overturning those rulings, the CCJ argued the colonial laws around “cross-dressing” limit freedoms of expression guaranteed by Guyana’s constitution.
Justice Anderson also claimed the law’s language is discriminatory and vague. He took particular issue with the phrase “improper purpose,” saying that it intended to criminalize an individual’s state of mind without evidence.
Reports have not specified if the women will receive reparations for their arrest.
Clarke, McEwan, and Persaud were fined $35 and Fraser was slapped with a $93 penalty. Given that the average monthly salary in the South American nation is just $500, those punishments are far steeper than they might seem—the equivalent of $259 and $688, respectively.
Homosexuality remains illegal in Guyana. A prosecution for same-sex intercourse could result in up to 10 years behind bars.
After politicians expressed support for the decriminalization of sodomy during the 2015 elections, the government signaled its support for a public referendum on the issue—set to be held the following year. The plebiscite never took place.
President David A. Granger has supported repealing the colonial era laws.
“I am prepared to respect the rights of any adult to indulge in any practice which is not harmful to others,” Granger said two years ago.
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