McEwan et al v. Attorney General of Guyana (2018)

In 2013, Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, Chapter 8:02 was challenged in the High Court of Guyana court in Quincy McEwan et al. v. AG of Guyana. The Court rejected the various arguments put forward by the applicants which argued that the provision violated the Constitution of Guyana. In February 2017, the Court of Appeal re-affirmed the High Court’s view that s.153(1)(xlvii) did not violate the petitioners rights’. In June 2018, the case was heard in the Caribbean Court of Justice (CCJ).

Section 153(1)(xlvii) states that: “Every person who– 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.” Those prosecuted under the provision are liable to a fine of between seven and ten thousand dollars.

Four petitioners in the case were trans individuals who had been targeted using s153(1)(xlvii). The petitioners joined with Society Against Sexual Orientation Discrimination (SASOD) to challenge the provision, arguing that the existence of s153(1)(xlvii) left them vulnerable to arrest and that the meaning of “improper purpose” in the provision had not been clarified by the High Court. The petitioners challenged the constitutionality of the provision under Article 149(2) (non-discrimination on the basis of gender) and Article 146(1) (freedom of expression) of the Constitution of Guyana.

The Court held that the provision was “unconstitutionally vague” and without legitimate purpose. It found:

“The fact that no one can say with certainty what an ‘improper purpose’ is or what male or female attire looks like, leaves transgendered persons in particular in great uncertainty as to what is and is not allowed. And to aggravate that injustice, it gives law enforcement officials almost unlimited discretion in their application of the law.”

The CCJ also held that s153(1)(xlvii) violated Article 149 of the Constitution and has a “disproportionately adverse impact on transgendered persons, particularly those who identify with the female gender.”

The appeal by the petitioners was allowed and s153(1)(xlvii) was struck down.

Download the judgment