Exactly one week since the people of Antigua and Barbuda and Grenada unjustifiably rejected the Caribbean Court of Justice (CCJ), it today handed down another landmark ruling that will have a significant bearing on Caribbean jurisprudence.
In a much-anticipated ruling, the regional court declared Section 153 (xlvii) of Guyana’s Summary Jurisdiction (Offences) Act unconstitutional and ordered its removal from the country’s law book.
The law, which makes it a criminal offence for, a man or a woman to appear in a public place while dressed in the clothing of the opposite sex for an improper purpose was challenged by four transgender persons and the Society Against Sexual Orientation Discrimination.
Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud who were arrested, convicted and punished for cross dressing in public in February 2009.
While in custody, Fraser requested legal counsel, medical attention, a telephone call and that the police take a statement. Those requests were not granted. McEwan, Clarke, Fraser and Persaud spent the entire weekend in police custody and received no explanation as to why they had been arrested and detained. They first learned of the charges, of loitering and wearing female attire in a public place for “an improper purpose”, when they were taken to the Georgetown Magistrate’s Court on Monday, February 9, 2009. They all pleaded guilty to the cross-dressing charge. McEwan, Clarke and Persaud were fined GY$7,500 while Fraser was fined GY$19,500.
Imposing the sentence, the magistrate told them they must go to church, give their lives to Jesus Christ and advised that they were confused about their sexuality.
The CCJ has strongly denounced the mistreatment of the appellants by law enforcers and deemed the Magistrate’s comments as inappropriate.
“Judicial officers may not use the bench to proselytize, whether before, during or after the conclusion of court proceedings,” the CCJ ruled.
Hardly can anyone fault the court’s position. We accept that there are still large pockets of Caribbean people who, on religious grounds or otherwise, perpetuate stigma and discrimination against members of the LGBTQI.
Wherever you sit on the fence, are Christian, Muslim or atheist, we can all agree that all human beings must be treated with dignity and respect.
For too long we have confused the debate about morals and human rights, when it is neither moral nor legal to deliberately ill-treat or demean another human being.
CCJ President Justice, Adrian Saunders, made it clear that law and society are “dynamic and not static” and therefore the spirit of the Constitution must always be upheld and human rights held supreme.
“If one part of the Constitution appears to run up against an individual fundamental right, 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, “ he said.
Herein lies a profound thought for our Caribbean.
Our debate on the issues related to homosexuality and the LGBTQI community is often stymied by illogical arguments and emotion.
Hardly can the opposing sides simmer down long enough to sit at the table and discuss these issues. They are not going away, no matter how much we turn a blind eye or keep our heads buried in the sand.
While we don’t expect overnight change, the State, the religious community, LGBTQI advocates and other members of civil society should agree to reflect and engage in a more constructive exchange. If only to ensure that all Caribbean people are able to live their lives with dignity.