The Jeff Cumberbatch Column – Criminalizing attire and the rule of law [I]
“The…appellants here, by choosing to dress in clothing and accessories traditionally associated with women, are in effect expressing their identification with the female gender. And the expression of a person’s gender identity forms a fundamental part of their right to dignity. Recognition of this gender identity must be given constitutional protection. –per Saunders P. in McEwan, Clarke and ors. v. AG of Guyana
“If you wear that, town block…per Glenfield Eastmond (The Devil) in “We goin’ do dixie.”
Transgender dressing, or cross-dressing as it is more popularly referred to, especially by males, is not unknown to most Barbadians of my generation. Time was, in the 1970s and 1980s, when there seemed to be a nightly fashion parade of cross dressers in Baxter’s Road and its environs. In that era too, there was, on more occasions than one, a production called “Queen of the B’s” in which males made appearances, as in any traditional beauty show, in the makeup, formal wear and swimsuits ordinarily worn by females in such contests.
Then, this transgender culture was generally regarded more as a source of fascination and amusement than anything else. However, it appears to have fallen into desuetude (some would uncharitably say “died out”) and the newly popular local attitude to gender transformation may have been witnessed in the apparently favourable reaction to a composition in the last Pic’ o’ de Crop calypso competition entitled Sex Change in which the artiste, Billboard, asserted “there is no such thing as being transgender as you cannot change your sex”.
As a Barbados Advocate editorial pointed out – Permanently fixed at birth?, this assertion, while it may be supported in current local law, fails to take account of the modern reality as manifested in legislation such as the Gender Recognition Act 2004 of the UK, a statute that enables transsexuals to apply for a certificate showing that the person has satisfied the criteria for legal recognition in the acquired gender.
This issue of transgender dressing, that appears to be prevalent in most regional jurisdictions, recently engaged the attention of the Caribbean Court of Justice in arguably unusual circumstances. What was once regarded with curious amusement in Barbados, and I assume in the other jurisdictions, has been criminalized in Guyana by virtue of section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act of that jurisdiction. This provides-
Every person who does any of the following acts shall, in each case, be liable to a fine of not less than seven thousand nor (sic) more than…dollars—
(xlvii) being a man, in any public way or public place, for any improper purpose, appears in female attire; or being a woman, in any public way or public place, for any improper purpose, appears in male attire…
In the instant case, the appellants had been arrested and charged with this offence. They pleaded guilty before the Magistrate and were fined accordingly. However, in a manner that is not unknown locally, the Magistrate thought it appropriate to deliver an admonition after conviction. According to the judgment-
“The Magistrate told the…appellants that they must go to church and give their lives to Jesus Christ. The Magistrate advised them that they were confused about their sexuality; that they were men, not women.”
They next launched an action in the High Court against the state for a violation of their constitutional rights, most relevant here claiming that the law was bad because it was vague, uncertain, irrational and discriminatory. The vagueness and uncertainty, they said, related to the words “improper purpose”, “female attire” and “male attire” and that it infringed their rights to equality under the law and not to be discriminated against and their right to freedom of expression. They also argued that the remarks of the magistrate reinforced the statal discrimination. This action was unsuccessful, as was the appeal to the Guyana Court of Appeal.
So far as section 153 was concerned, the judge at first instance was of the view that it was immunized from constitutional challenge on the basis of human rights, since it was saved by the savings law clause in the Guyana Constitution. The judge also decided that it was the improper purpose that was the true basis of the criminalization of cross-dressing in public and not the dress itself. Accordingly, “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 or to reflect his or her sexual orientation”.
The court held also that the section was not discriminatory because the section is “directed against the conduct of both male and female persons”. Moreover, in an unusually restricted meaning of the word, it was decided that the section addresses “attire” only. In the judge’s interpretation of the law, it was not an offence for a male person to wear a female head wig or earrings or female shoes in a public place, even for an improper purpose. And as for the admonitory remarks by the magistrate, the judge was of the view that while these amounted to “proselytising”, they did not constitute a hindrance to freedom of thought and of religion.
As already noted, the appellants did not fare any better in the Court of Appeal. In this regard, paragraphs 24 and 25 of the judgment of President Saunders are instructive.
The Court of Appeal expressed its “complete agreement” with the trial judge’s view that section 153 carried no taint of gender discrimination. On the vagueness point, while acknowledging that the expression “improper purpose” is broad in meaning, the court pointed out that the use of broad terms in statutory provisions is pervasive. In this case, according to the Court of Appeal, the meaning of “improper purpose”, as used in section 153, is “to be gleaned from the context or more directly, the factual circumstance, including the place and time at which the ‘improper purpose’ as used in section 153 is alleged.” In support of this conclusion, the court referred to statements in R v Crown Court at Wood Green ex parte DPP. It was stated there that the legal meaning of statutes, which are vaguely drawn, is to be determined by courts on a case-by-case basis. The court noted that given the changing times, it is impossible for the draftsman to have captured the degree of certainty which a criminalizing enactment ought to bear. The use of the phrase “improper purpose” was intended to capture a range of different situations.
The Court of Appeal answered the appellants’ concern that the vagueness of cross- dressing in public for an “improper purpose” makes it impossible for a citizen to know how to regulate his/her conduct. The court’s view was that it requires “a measure of internal rationalization so that the citizen is able to determine for himself the consequences which a given action may entail”. The Court of Appeal proceeded to suggest examples of conduct that would fail to meet a “proper purpose” standard. One such example given was where a man puts on a dress, a wig and high-heeled shoes, pretending to be a woman in distress, and then enters a taxi in order to rob the driver.
The Court also unanimously dismissed the complaint against the magistrate on the ground that she had made her comments after imposing sentence and therefore what was said could not have influenced the proceedings. [Original emphasis]
Next week –The decision of the CCJ