Post 290.

Once, Hindus were not allowed to legally marry under Hindu rites because marriage was only legitimate if it was Christian. Spiritual Baptists were not allowed to practice their religion because it was associated with African community and spiritual customs. Muslims could not commemorate Hosay, for the gathering of masses with sticks and drums so threatened authorities that the Muharram massacre of 1884 occurred.

Vagrancy laws were notoriously used to confine indentured Indian workers to sugar plantations, preventing and punishing escape and rebellion. Once, and perhaps still, you could get harassed and locked up just for being Rasta.

These are all struggles which show how violent and oppressive the law and those who enforce it can be, particularly against the poor and those deemed to not fit in or to be out of place. These are all examples of individuals and communities trying to live as they choose, committing no harm to others and being criminalised anyway. Finally, these are all histories of those among us who successfully sought freedom and protection from injustice.

We would be talking history if this wasn’t the story of individuals and groups still dreaming of an equal place in the region, still dreaming of what you may take for granted; the chance to live without threat, discrimination and harm.

Tomorrow, the Caribbean Court of Justice is considering these very dreams of equal belonging. In McEwen et al v The Attorney General of Guyana, a case is being made to strike down as unconstitutional an 1893 law against cross-dressing for an ‘improper purpose’ in public.

In 2009, seven persons were arrested for being ‘males’ wearing ‘female attire’ in a public place for ‘improper purpose’. These were trans or gender non-conforming persons who, not-unusually, pleaded guilty given the small fine and absence of lawyers. They were fined under this 19th century vagrancy law.

‘Females’ appearing in a public place, for a supposedly ‘improper purpose’, in ‘male attire’ can be similarly convicted, which seems excessive, bizarre and outmoded. What is an “improper purpose”? What is “male attire”? It’s not even clear in the law.

This same legislation criminalises practicising witchcraft. In TT, similar summary offences legislation could get you sentenced to imprisonment for a month for pretending to tell fortunes or imprisonment for three months for bathing in the Maraval River. And, God forbid you are found singing or dancing with rogues and vagabonds, a constable has a right to forcibly carry away all gongs, tambours and chac-chacs.

Such loitering or vagrancy laws have also been used against LBGTI persons who are often arrested without being charged or told of the charges or advised of their rights, who have experienced humiliation and violence during detention, and who are convicted of minor offenses for being on the street or dressing how they choose. In other words, simply for being who they are.

It’s like when police rough up fellas on a block who have committed no crime, but are treated as criminals because of their skin colour, hairstyle or clothes, and who could get hard slap for resisting such profiling. Such advantageousness happens to those whose race, class and gender get them cast as illegitimate, threatening, and subordinate.

Curiously, when four of those convicted in 2009 challenged the constitutionality of the 1893 offence, the Acting Chief Justice in 2013 ruled that cross-dressing in Guyana was perfectly legal, just not for an improper purpose. Yet, in 2016 and 2017, after the CJ’s judgment, various trans women were prevented from attending magistrate’s court dressed in ‘female attire’, as if going to court amounts to an ‘improper purpose’.

At the CCJ, McEwan et al will be arguing that that the law is too vague to be valid or applied without enabling dangerous and arbitrary application by police, that their rights to protection of the law, freedom of expression and non-discrimination have been infringed, and that the law therefore violates constitutional and human rights as positively upheld in Guyana. It also exacts conformity as the price of equality, and reproduces both impunity and social exclusion.

Once, colonial powers decided who we should be and punished us for wanting to decide for ourselves. The CCJ judgment will set a precedent for a region rising up against the savings clauses which keep such colonial laws in place and penalise marginalised communities.

There is now none but ourselves to free each other, whether from poverty, stereotyping or an inhumane justice system. Imagine shaking off colonisers’ boots and walking in the footsteps of those who sought inclusion.

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