The news from the Trinidad-based Caribbean Court of Justice (CCJ) was shocking to some and welcomed by others. This week, the justices ruled that a law in Guyana that makes it a criminal offence for a man or a woman to appear in public while dressed in clothing of the opposite sex was “unconstitutional.”
This was one of those eagerly awaited decisions from the CCJ because it would indicate, to some, whether the court was willing to uphold traditional cultural values, and to others, whether the Caribbean-based court was “mature” enough to deal with sensitive cultural and social issues. Naturally, the decision has reignited the discussions regarding the shift from the Privy Council to the CCJ. Any thought that the referendum had quelled that fire was abandoned once the controversial decision was announced. The CCJ has returned to the fore, and the pros and cons of the switch have taken on a new dimension.
We should add that there are a considerable number of people who believe that the delivery of the ruling was delayed so that it would not impact the “no” vote, which is widely believed to have more conservative thinkers in its base of support. Many had criticised the court for playing games with justice and seeking to influence the vote because of what they perceived as a delay ahead of the referendum in two countries in the region – Antigua and Barbuda and Grenada. The clamour reached such a fever pitch that it caused the CCJ to issue a tweet on its official Twitter account, over a week ago, stating “that there is some miscommunication regarding the McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud versus the Attorney General of Guyana matter” and that “the date for the judgment is not yet set.” There is no concrete evidence to support the suggestions of a deliberate delay, so that can only be considered as speculation based on coincidence.
As a quick background, in 2009, several trans women were arrested and eventually convicted under a 1893 law called the Summary Jurisdiction (Offences) Act. The offence in question was essentially being a man and appearing in female attire in public for an “improper purpose.” They spent three nights in jail following their arrest. One year later, the aggrieved, Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) challenged the constitutionality of the law and the treatment of the appellants, which included allegations that their rights were infringed, including being refused legal counsel, medical attention and a demand for the police to indicate the reason for arrest and to take a statement.
They had all pleaded guilty to the cross-dressing charge and were fined various amounts, but not before the presiding magistrate told them that they must go to church and give their lives to Jesus Christ while admonishing them that they were confused about their sexuality. That judgment was considered in line with the traditional and stereotypical macho, homophobic culture and societal values of the Caribbean. And while the appeal at the high court agreed that cross-dressing was not a crime, it also stated that the law was not discriminatory or disproportionately impacted trans and gender non-conforming persons.
That put the matter in the hands of the CCJ, and the much-touted “cultural sensitivities” of the Caribbean court was also put on public trial. The resulting decision has been as contentious as the court itself with many suggesting that the current comparison of the two courts results in a ‘six of one, half dozen of the other’ scenario. At the same time, some of the pro-Privy Council voters have gained some measure of respect for the justices. No matter your side, the reality of the situation is that the court could never deliver a judgment that would be universally considered a ‘win-win.’
The full impact of this decision is yet to be determined but it will no doubt be one of the main talking points in the days ahead, and most certainly in the lead-up to the next CCJ referendum. Will this judgment be perceived as a betrayal of people’s belief that the court will be more conservative and uphold their traditional values regarding sexual orientation and identity, or will this be seen as a progressive move by the CCJ and a demonstration of maturity? Time will tell, as will the next referendum on the matter.
We invite you to visit www.antiguaobserver.com and give us your feedback on our opinions.