The Jeff Cumberbatch Column – Criminalizing Attire and the Rule of Law (iii)

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.

109 comments

  • Why wunna people so like to argue with bushie nuh…?

    If the shiite law says that it is illegal to wear or to have disruptive pattern clothing – and the intent is to ensure that persons do not dress in a manner so as to cause confusion in the minds of citizens as to if they are members of the armed forces, what the Hell wunna want the police to do?
    What discretion what?
    Policeman A says a shirt os OK
    Policemen B makes you take it off
    Customs officer C allows a certain trousers
    and the policemen at the car park makes you take it off…?
    Steupsss…
    SIMPLE RULE FOR BRASS BOWLS – allow NONE!!
    …even pink.
    Bushie would not be surprised to see Bajan soldiers wearing pink Camouflage

    Don’t they wear whatever the hell they are given as leftovers by their benefactors?
    First it was the British style, then Canadian, US and now Chinese looking….
    How the hell can the Law and customs officers keep up?
    Next the French may give them some camouflage left over from the Pink Panther legion…..

    Man ban EVERY SHIITE!!! – BEST law on the books – probably the ONLY law that actually works.
    What camouflage what??!!

    How is that ANY kind of an issue when we have a jackass running the BWA who needs to be fired URGENTLY
    yet still in the news every damn day looking dumb as shiite…?

    Liked by 1 person

  • pieceuhderockyeahright

    @ the Honourable Blogmaster your assistance please with an item for the LUMINARY Jeff Cumberbatch thank you

    Like

  • @BT
    Man ban EVERY SHIITE!!! – BEST law on the books – probably the ONLY law that actually works.
    What camouflage what??!!
    ++++++++++++++
    Yuh know BT I agree with you , one time I went to the Registry to collect a Birth Certificate and a fashion policeman at the gate (security guard) took a long look at my short khakis before he deemed them respectable to be allowed entry. Since it was the Registry I started thinking what about banning names? Let’s do like some countries and prevent people from giving babies names that are “contrary to the best interest of the child”. In Barbados it is now de rigueur to give unsuspecting infants some made up names which become head scratchers as they grow older. The Gov’t should have a list of names that conform to our African/Colonial heritage and if you don’t conform when you go to register baby BT they cant turn you away but you can call him/her “pudding n’tane” until you get it sorted out.

    “Ban every shite”

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  • @Sargeant December 4, 2018 11:16 AM “I started thinking what about banning names? Let’s do like some countries and prevent people from giving babies names that are “contrary to the best interest of the child”.”

    What is the matter with you?

    Don’t you know that there are some “parents” out there happily setting up their children with names like Abcde, pronounced, Ab-See-dee. Parents want to free up. Just now some parent is going to show up at our Registry with cute little Abcde.

    As in the good old U.S. of A: https://www.msn.com/en-us/lifestyle/lifestyle-buzz/people-are-shaming-the-mom-of-a-5-year-old-called-abcde-but-its-a-surprisingly-popular-name/ar-BBQj47P

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  • The camouflage Law have been on the books of Barbados for more than four decades … why all thing long talk about its ineffectiveness now?

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  • “In Barbados it is now de rigueur to give unsuspecting infants some made up names which become head scratchers as they grow older.”

    Interesting!!!

    In certain societies, names have a specific meaning and are given to children for specific reasons.

    What I find amazing is Barbadian parents giving their children names such as “Akeem,” “Khalil,” “Raheem,” “Ahmed,” “Amara” or “Amir”…….. in cases where the parents are not Arabs or Muslims……..and without knowing what these names actually mean.

    Liked by 1 person

  • @Lexicon,
    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

    Like

  • It is always tempting to try to save fools from themselves but there are dangers that come with that. It’s like the idea of the benevolent dictator some here like to present as the answer to our problems. But you see, the benevolent dictator being himself human, is also prone to human foibles, folly and failings and there is no guarantee that he or she will remain benevolent in a different environment. We know that power corrupts and absolute power tends to corrupt absolutely.

    As far as I am concerned the law should be required to justify its existence. Otherwise it should just let people BE.

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  • re What I find amazing is Barbadian parents giving their children names such as “Akeem,” “Khalil,” “Raheem,” “Ahmed,” “Amara” or “Amir”…….. in cases where the parents are not Arabs or Muslims……..and without knowing what these names actually mean.

    I USED TO LIKE TO GO TO THE DOOR OF MY OFFICE OR IN THE CORRIDOR IN THE POLYCLINICS WHEN SUMMONING THEM

    I WOULD WITH A LOUD VOICE CALL OUT THEIR NAMES e.g
    ANONGO BUMBALAYO WACKAWACKA HINDS

    FUNNY ENOUGH, THE MOTHERS DID NOT LIKE YA TO CALL OUT THEIR PICNI DEM NAME IN PUBLIC SO-

    BUT I ENJOYED DOING IT

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  • @ THe Luminary Jeff Cumberbatch

    Well, given the fact that you continue to show that you are no one’s little boy, WE CAN ALL BE ASSURED THAT YOU WILL NOT BE APPOINTED TO THE CZAR LORD position to amend any laws of Barbados

    Because your fairness and commitment to justice and law and integrity will not sync with the Mugabe Regime which is slowly and insidiously changing the rules of the game on this playing field while we get caught up with the sensational articles about the Haigh woman at the Barbados Water Authority being fired!!!

    I wsked you once before in an article that is still in suspense if you, being tasked with a matter where a person seeks to challenge this law on Camoflauge, would defend them?

    You have not answered because the article has yet to be published but hopefully it will post now

    @ Donna

    In an earlier post you made a comment about men here who comment on the sexual predispositions of one “benevolent dictator” whomever that is.

    De ole man just wanted to know how you would feel to suffer ex-clitorization? Does that sit well with you? sorry that probably will be ascribed to being “men here with a fixation on gender identification would it not?

    Steupseee, this is why we are where we are, being rogered by this BDLP duopoly while people like you selectively waver over what is right and wrong in the sight of the god (purposely lowercase) you purport to serve

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  • pieceuhderockyeahright

    Dr. GP

    Heheheheh

    The same name stupidness happened for a nurse at the Black Rock Polyclinic similarly challenged to call the name of a child whose mother claimed that

    “RA-SHÒ-LÈ ” was how one was to pronounce the name of her daughter.

    A name which was written Rasshole on the attendance charts.

    The girl’s father, in case you were interested, was Lexicunt pronounced Lexicon by many here

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  • Jeff

    The freedom of expression has its limitations … it is illegal in the US to dress in a police or fireman’s uniform… so what makes a soldier uniform any different if the government deems it illegal for the public to dress in it?
    In America for example: the Free Exercise Clause of the First Amendment gives every citizens the right to worship … but Congress still reserved the right to regulate the application of how people worship… for example: it is illegal for a satanist to use human or animal sacrifice in his or her worship … so there is no such thing as absolute rights …

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  • Jeff

    The framers of Constitution stated that the right to keep and bear arms shall not be infringed
    .. but Congress and state legislatures still reserved to right to regulate the use of firearms in America… so again … no right is absolute …

    Like

  • Jeff

    Because one has the right to freedom of expression that does not mean he or she can walk into a cinema and shout fire when there is no fire … such expression/speech is unconstitutional … because I have the right to freedom of expression that does not give me the right to walk around town with a article of clothing which says kill all white people … such speech isn’t constitutionally protected …

    Like

  • Piece

    The more you write …
    the more your dementia and cognitive insufficiency becomes apparent … but thank God that some of us here have enough patience, tolerance and equanimity, to entertain the puerility you articulate as comedy here…

    Like

  • Georgie Porgie

    You are a wicked man … call out children names just to irritated their parents … and come here on BU pretending to beat people with Rod of Correction who do not adhere to your brand of religiosity … can’t you see that your very words tell us who you really are and not who you pretend to be…

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  • @L|exicon,

    It is not illegal in the US to dress as a law enforcement officer, since on my television I see actors dressed u in authentically looking uniforms all the time. As far as I know no one has ever been charged.

    Like

  • Hal Austin

    You are correct as far as see actors wearing cop uniforms on television … but you have to have a valid film permit to wear or even buy them in the US … it is illegal Hal … and if you put one you run the risk of impersonating an office…

    Like

  • @Lexicon,

    So, the illegality is conditional ie the need for a permit. Do you need a permit for the stage also? Is there an assumption that without a permit you are impersonating a police officer?

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  • Hal Austin

    Check out California Penal Code Section 538d … since most of the filming is done in California and you will get your answer …

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  • Hal Austin

    Yes … without a permit or the written approval from law enforcement it is illegal to wear a police uniform in the US …

    Like

  • @Lexicon,
    I am not having a discussion with the attorney general of California, I am with you. I have no interest in the California penal code.

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  • What the Hell
    Lexicon has become the teacher …and the ‘bright’ and at the pious are the dumb students.
    In Barbados one needs to get permission to use official uniforms for any other reason too… likely most places.

    @ LexiC
    Are you trying to tell GP that one does NOT identify a tree by the fertiliser that is applied….
    but rather by the FRUIT that it produces…?

    Someone once put it this way…

    “‘These people honor me with their lips,
    but their hearts are far from me.
    They worship me in vain;
    their teachings are merely human rules.

    Jesus called the crowd to him and said, “Listen and understand.
    What goes into someone’s mouth does not defile them,
    but what comes out of their mouth, THAT is what defiles them.”

    So the fact that he was fertilised at HC or that he eats NUFF fish cakes is not the issue…
    The issue is the lotta vile hatred that comes forth from his keypad…

    Sorry but…
    Such trees will be uprooted and burnt at the appropriate time
    Ruptured and not Raptured…

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  • My friend what don’t you understand …? It is illagal in the United States to wear a cop’s uniform without written approval or the proper permit … I do not know how conspicuous you want me to be in explaining this simply fact …? Hal, and added to that … it is also illegal in the United States to wear military attire with all the awards … it is called stolen valor…

    Like

  • @Lexicon,
    It is not illegal in the UK. In fact , one of the Xmas favourites in the UK is strip tease dancers, many of the males dress up as police officers. It is an offence to impersonate a police officer, not simply by dressing.
    As I have said, we have shops that sell military surplus clothing. Don’t universalise from specifics. The US is a strange country with strange laws and a strange president. It is not a good model for Barbados.
    An 11 yr old wearing army fatigues is no threat to the nation’s security. It is bollocks and makes sense only in a nation that all of its key institutions have failed..

    Like

  • Hal Austin

    Laws vary through the world and Barbados is no exception …

    Like

  • pieceuhderockyeahright

    @ Hal Austin

    That man is a Lexicunt!

    It is NOT ILLEGAL to wear facsimile police clothing which is the point that you are making?

    The purchase of real police or military garb is restricted to authorized parties

    If you get such garb AND THEN PROCEED TO PRETEND THAT YOU ARE AN OFFICER, that is the crime.

    The garb that circulates around Halloween for example is not authentic but carried specific differences in their design.

    I can for example wear an official police shirt during official celebrations of say police week.

    Ignore the Lexicunt and revert to the substantive article.

    I am again asking the Luminary Jeff Cumberbatch if a fellow was to put on a camouflage outfit, could such a person rely on him to defend them in a court of law?

    And would he stake his reputation that the party would get off? and not get locked up?

    Like

  • Hal Austin

    The American judicial system is quite unique … because the system of laws emanate from the federal, state, municipal governments as well as the Indian nations … but federal law supersedes them all …

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  • Hal Austin

    But federal law is not absolute … because there is clause in the Constitution which is called Interposition … and what this essential entail is that the state can challenge the constitutionality of any law Congress enacted … but this concept has been vitiated after Reconstruction…

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  • Hal Austin

    Remember Governor Wallace assert that principle and forced Kennedy to send the National Guard toenforced federal law

    Like

  • @ Lexicon,
    I did not realise that laws varied around the world. Thanks for telling me.

    Like

  • RE pieceuhderockyeahright December 5, 2018 8:34 AM

    @ Hal Austin

    That man is a Lexicunt!

    IN ADDITION IN MY PROFESSIONAL OPINION HAVING BEEN TRAINED HE HAS the dyspeptic disposition of the Statler and Waldorfs personality types THAT borderS on schizophrenia. NUH LIE

    Like

  • RE that he eats NUFF fish cakes is not the issue…

    THIS MORNING IT IS THE WIFE’S PLATTER WITH HARD BOILED EGGS, CHEESE HAM AND CRACKERS……..VERY WELL PRESENTED WITH HOT CHOCOLATE

    The issue is the lotta vile hatred that comes forth from his keypad…
    NOT AT ALL. IT IS THE ABILITY TO PIVOT ONTO THE BACK FOOT AND RETURN THE VILE VENOM THAT YOU SPEW OH SON OF BELIAL

    Like

  • Piece aka old fogy

    You are an idiot and ignorant of the law … because one does not have to pretend to be a police to be arrested for wearing a police uniform … he or she just have to be caught wearing it in public … it is like your grandson who has been caught with an unlicensed gun, and says to police: I did not know that you had to have a license to carry a gun in public ….IGNORANCE OF THE LAW IS NO EXCUSE STUPID

    Like

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