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 PCCJ in McEwan et ors. v The AG of Guyana [2018] CCJ 30

It is essential to human progress that contrary ideas and opinions peacefully contend. Tolerance, an appreciation of difference, must be cultivated, not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed

–Irwin Toy Ltd v Quebec (AG) [1989] 1 SCR 927.

In this, the penultimate part of this extended essay analyzing the recent decision of the Caribbean Court of Justice [CCJ] on the constitutionality of section 153 (1)(xlvii) of the Summary Jurisdiction (Offences) Act of Guyana, we examine the disposal of the first two of the claims made by the appellants. Readers will recall that this section criminalizes cross-dressing by men or women for an improper purpose not further specified. Last week, we treated the applicability of the savings law clause that the respondent prosecution had prayed in aid to justify the constitutionality of the provision.

It will be recalled that the leading judgment of President Saunders gave short shrift to this argument, principally on the basis that the clause was “corrosive” of the concept of constitutional supremacy and at odds with the constitutionally given power of judicial review. More commentators than one on the column queried the validity of this holding in light of the clarity of the provision. I suppose that that inquiry should have been made in 1966, in the case of Barbados, but so many anomalous matters in what was to become our Constitution appeared to have gone unquestioned then. In the judgment, the President averred,

even if one were to apply the clause fully and literally, because of its potentially devastating consequences for the enjoyment of human rights, the savings clause must be construed narrowly, that is to say, restrictively...[Original emphasis]

In the view of Saunders, there were essentially four issues that arose for determination by the Court. These were, namely, whether the section violated the appellants’ rights to equality and non-discrimination guaranteed to them by the Guyana Constitution; whether it violated their identically guaranteed right to freedom of expression; whether it offended the principles of the rule of law in light of the vagueness of the provision, especially with regard to the terms “improper purpose”, “male attire” and “female attire”; and whether the reproving remarks of the Magistrate were appropriate and, if not, their consequence.

Equality and non-discrimination

The argument of the appellants here was that the cross-dressing law infringed their fundamental rights in these regards because it is rooted in gender stereotypes of how women and men should dress. They averred that the section treats transgendered and gender-non-conforming persons unfavourably by criminalising their gender expression and gender identity in violation of Article 149D of the Constitution. That Article focuses squarely on inequality before the law and is distinct from, albeit complementary to, Article 149(1) that prohibits discrimination on specified grounds..

The leading judgment accepted this argument, finding that-

At the heart of the right to equality and non-discrimination lies 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 signifies a commitment to recognising each person’s dignity and equal worth as a human being despite individual differences.

and that-

The constitutional promise of equality prohibits the State from prescribing legislative distinctions or other measures that treat a group of persons as second-class citizens or in any way that otherwise offends their dignity as human beings.

While the Barbados Constitution does not expressly guarantee persons equality before the law, there is nevertheless section 23 that seeks to protect persons from discrimination on certain specified grounds. In any event, President Saunders made reference to the observation of the Committee on the Convention to Eliminate Discrimination Against Women, to which Barbados is a state party, to the effect that-

Inherent to the principle of equality between men and women, or gender equality, is the concept that all human beings, regardless of sex, are free to develop their personal abilities, pursue their professional careers and make choices without the limitations set by stereotypes, rigid gender roles and prejudices…

It was held ultimately that the section could not be reasonably justified in a democratic society such as Guyana because the section conduces to the stigmatization of those who do not conform to traditional gendered clothing and, mostly, because it criminalizes aspects of their way of life, thus enabling the State to unleash its full might against them… therefore section 153(1)(xlvii) violates Articles 149(1) and 149D of the Constitution.

Freedom of expression

In this context, the President first reiterated the significance of free expression to the democratic way of life-

Because it underpins and reinforces many of the other fundamental rights, freedom of expression is rightly regarded as the cornerstone of any democracy. A regime that unduly constrains free speech produces harm, not just to the individual whose expression is denied, but also to society as a whole. On the one hand, the human spirit is stultified. On the other, social progress is retarded. The fates of brilliant persons like Galileo, and Darwin, and countless others, sung and unsung, betray a familiar pattern in the history of humankind. Today’s heresy may easily become tomorrow’s gratefully embraced orthodoxy.

He also acknowledged that a person’s mode of dress might be regarded as a legitimate form of his or her expression-

A person’s choice of attire is inextricably bound up with the expression of his or her gender identity, autonomy and individual liberty. How individuals choose to dress and present themselves is integral to their right to freedom of expression. This choice, in our view, is an expressive statement protected under the right to freedom of expression.

And even though this freedom was subject , as in Barbados to reasonable limitations, these had to be demonstrably justified in a free and democratic society-

No one should have to live under the constant threat that, at any moment, for an unconventional form of expression that poses no risk to society, s/he may suffer such treatment. But that is the threat that exists in section 153(1)(xlvii). It is a threat particularly aimed at persons of the LGBTI community. The section is easily utilised as a convenient tool to justify the harassment of such persons. Such harassment encourages the humiliation; hate crimes, and other forms of violence persons of the LGBTI community experience. This is at complete variance with the aspirations and values laid out in the Guyana Constitution…

This latter issue implicates the criminalization of the wearing of any form of camouflage clothing in Barbados. This has not been challenged to my best knowledge, but it would be of interest to debate whether it is reasonably required in all cases in the public interest.

Next week- The rule of law and the magisterial reproof.