Last year the Court of Appeal in Guyana rejected the appeal of four trans persons who had been convicted of wearing female clothing in a public place. The court argued that the provision under which they were convicted did not constitute sex discrimination, because both men and women were prohibited from wearing the clothes of the other sex [1]. This prohibition is found in the Guyanese Summary Jurisdiction Act, which declares it illegal for anyone ‘being a man, in any public way or public place, for any improper purpose, [to] appear in female attire; or being a woman, in any public way or public place, for any improper purpose, [to] appear in male attire.’
The case has led to considerable debate in the Caribbean and beyond, mostly focusing on contemporary human rights concerns [2]. Relatively little attention has been paid to the history of the law under which Quincy McEwan et al were prosecuted. This post explores the background to the criminalisation of cross-dressing in British Guiana, which dates from the Summary Conviction Offences Ordinance of 1893, passed when Guyana was the colony of British Guiana [3]. Before 1893, cross-dressing was not specifically illegal in British Guiana. Like many provisions of colonial law, the specific reasons for the creation of this particular prohibition are obscure, but we do have some knowledge of the context of its passage.
The 1893 Ordinance was part of an overhaul of the colony’s legislation, originally carried out so that the Attorney General (John Worrell Carrington) could produce the first official publication listing all of the laws in force [4]. The Summary Conviction Offences Ordinance consolidated previous legislation that had been enacted after the end of slavery, dealing with matters such as Sunday labour and trading, trespass, obeah (that is, spiritual healing and divination), and vagrancy [5].
Beyond consolidation, the 1893 Ordinance also expanded the range of behaviour that was unlawful. Some of these further clauses were based on British law, while others were inspired by the legislation of other Caribbean colonies. For example, the section on ‘minor offences’ which eventually included the two sub-sections on gendered clothing incorporated considerable provisions from British police law, which had itself become increasingly stringent in recent decades [6].
The initial draft of the 1893 Ordinance was much slimmer than the final law, and the cross-dressing provision was added to the draft while it was being reviewed by the Court of Policy [7]. Court of Policy minutes do not record when the gendered attire sub-sections were first introduced, but we know that they were there in initial form by 16 August 1893. On that date an amendment added ‘for improper purposes’ to the draft clause prohibiting a man appearing in public in ‘female attire’, or a woman in ‘male attire’ [8].
What motivated the introduction of these provisions, and what impact did they have on the lives of people in Guiana? Was their introduction related to religion, to concerns about vagrancy and public order, to anxiety about gender, to worries about commercial sex? What did the qualification ‘for improper purposes’ mean?
There is little direct evidence to answer these questions, but these sub-sections may have responded to petitioning by local Christian moral movements. A petition from the Clergy and the Christ Church Branch of the Temperance Association led to stricter wording on Sunday Trading [9]. Further research may well reveal similar petitions or letters relating to the question of gendered clothing.
The 1893 law was not the first legislation regarding clothing. In 1837, just before the final abolition of slavery, an Ordinance to ‘ensure a Better Observance of the Sabbath Day, and Otherwise to Promote Habits of Morality and Decency’ declared that anyone over five years of age must be ‘decently clothed’. The law defined decency in gendered terms: men had to wear at least a ‘shirt and pair of trowsers’ and women at least ‘a shift and petticoat’ or other clothing that satisfied the Sheriff [10]. Notably, however, labourers working or going to and from plantation work were exempt. This law was incorporated in the 1893 legislation, which in addition provided leeway to ‘Aboriginal Indians’ and ‘East Indian immigrants’ [11]. The inclusion of the sub-sections on cross-dressing at the same time as these new exemptions were introduced may have been an attempt to make sure that the norms of dress established in 1837 were still legally mandated for all inhabitants. Where previously the concern had been exposure of the naked bodies of the poor, now it was also the wearing of the ‘other’ gender’s attire.
The cross-dressing provisions were also related to legislation passed which criminalised vagrants and those deemed ‘improper’. Several other places, including a number of cities and states in the United States, had similar laws. Like British Guiana, they often made gendered clothing laws part of wider vagrancy enactments and individuals charged by cross-dressing laws were often also deemed vagrants. The additional dimension in nineteenth century British Guiana was the intersection of the control of those deemed vagrants with colonialism and with the needs of the plantation economy. An 1883 case highlights the intersections of culture, gender, morality, and colonialism. Radhai, an Indian indentured labourer, was sentenced to seven days imprisonment for vagrancy. The court was, however, preoccupied with his perceived cross-dressing. As the Daily Chronicle reported:
The Eccentric Immigrant. – Radhai, the male immigrant, who a week previously appeared in this court attired in female dress, was again charged by Mr. Massiah, manager of Pln. La Bonne Intention, with having, on the 20th February, been found wandering abroad without any visible means of subsistence, and unable to satisfactorily account for himself. …- Defendant said he wore the garb in accordance with the rules of his sect [12].
The 1883 article is a tantalising glimpse of something, but it’s hard to determine what. Because Radhai’s ‘female attire’ is not described, it is hard to interpret why Radhai was wearing these clothes. While in the context of someone ‘wandering abroad without any visible means of subsistence’, perhaps these were simply the clothes that Radhai was able to obtain. Still, the claim that ‘he wore the garb in accordance with the rules of his sect’ suggests that something more was going on, that there was some religious significance to this choice of dress. While it is tempting to speculate on the case on the basis of what is known about cross-dressing in nineteenth-century India, including the 1871 Criminal Tribes Act’s criminalization of those who ‘appear, dressed or ornamented like a woman, in a public street or place’, we can do little more at this point than point to a potential connection [13]. The wider meaning and significance of Radhai’s case in regards to gender, clothing and religion in the colonial Caribbean is something we aim to investigate further.
Studies of Britain, Australia, and the United States have highlighted the use of gendered provisions within vagrancy laws to harass lesbians and gay men in those countries [14]. The requirement that one must be wearing at least three items of the clothing of the ‘appropriate’ sex was frequently used against lesbians and gay men, as well as transgender people, in much of the twentieth century United States [15]. Additionally, in nineteenth-century Britain and the United States those convicted of wearing clothes of the ‘other’ gender were often categorised as ‘masquerading’ as ‘another gender’ for the purposes of ‘fraud.’ Just the fact of wearing these clothes and socialising, particularly in the evening, was seen as evidence by the police of ‘improper purposes.’ Might something similar have been at work in late nineteenth century British Guiana? In a colonial Caribbean context, ‘improper purposes’, may also be related to efforts by the authorities to suppress what they considered to be ‘indecent’ or ‘immoral’ clothing and activities within celebration, particularly within annual events such as Trinidad carnival [16].
The law, with its broad and non-defined qualifier of ‘improper purposes’, has dramatically affected the lives of trans persons and others not fitting into strict gender codes. This year McEwan, Clarke, Fraser, Persaud and SASOD will appeal the 2013 judgement. Reflecting upon last year’s verdict, McEwan stated that ‘the Chief Justice was relatively clear that once you are expressing your gender identity, it’s not criminal for a man to wear female attire. But the law really stifles us, because what could be an improper purpose? The trans community is very worried, and still fearful of arrests, in light of this decision.’
Beyond the example of Radhai, who was convicted before the passage of the 1893 law, we don’t know who faced prosecution in nineteenth century British Guiana for wearing the clothes of the ‘wrong’ sex. But the Court of Policy’s choice in 1893 to include a provision specifically relating to cross-dressing that had not before been seen as necessary suggests that additional research could well reveal examples of people prosecuted for cross-dressing, thus opening up a new series of questions about the sexual and gendered sub-cultures of the colony.
Notes
[1] The court found the litigants’ constitutional rights were violated because they were not told the reasons for their arrest, but left the provision under which they were arrested in place. The appeal transcript can be found here.
[2] For example, see:, Michelle V. Rowley, Feminist Advocacy and Gender Equity in the Anglophone Caribbean: Envisioning a Politics of Coalition (New York: Routledge, 2011), p. 201-203; Alissa Trotz, ‘This Case is About, and For, All of Us’, Stabroek News, 1 March 2010; Alissa Trotz, ‘The Constitutional Challenge to the Cross-Dressing Law’, Stabroek News, 23 September 2013.
[3] The sub-sections, whose phrasing is identical to the current law, are found in Clause 156 entitled ‘Minor Offences, chiefly in Towns’, within Title XII – Police Offences, within Part V of the Ordinance entitled ‘Offences against Religion, Morality, and Public Convenience.’ The Summary Conviction Offences Ordinance, 1893. Original Sealed copy. The National Archives, UK (hereafter TNA) CO 113/8.
[4] TNA: CO 111/466, British Guiana Original Correspondence: Letter from Carrington to Edward Wingfield, Asst. Under Secretary of State, 2 May 1892. This publication eventually came out in 1895 in five volumes.
[5] Carrington noted that his legislation consolidated ‘the Sunday Labour Ordinance of 1837, the Wilful Trespass Ordinance of 1850, the Obeah Ordinance of 1855, the Petty Offences Ordinance of 1856, the Vagrancy Ordinance of 1856, the Sunday Trading Ordinance of 1867, and the Public Peace Preservation Ordinance, 1889.’ ‘Memorandum on the Summary Conviction Offences Ordinance, 1892’, enclosed in TNA CO 111/466, British Guiana Original Correspondence: Letter from J.W. Carrington to Colonial Office, 30 March 1892.
[6] Memorandum on the Summary Conviction Offences Ordinance, 1892, enclosed in TNA CO 111/466, British Guiana Original Correspondence: Letter from J.W. Carrington to Colonial Office, 30 March 1892.
[7] The Court of Policy was the Guianese legislative body.
[8] TNA: CO 114/59, Court of Policy, British Guiana. Minutes, Second Session, 1893, p. 7.
[9] TNA: CO 114/59, Court of Policy, British Guiana. Minutes, Second Session, 1893, p. 38.
[10] TNA: CO 113/1, No. 1, British Guiana, 1837. An Ordinance to Ensure a Better Observance of the Sabbath Day, and Otherwise to Promote Habits of Morality and Decency.
[11] TNA: CO 113/8, The Summary Conviction Offences Ordinance, 1893. Original Sealed copy, pp. 48-49.
[12] The Demerara Daily Chronicle, 25 February 1883.
[13] Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (Chicago: University of Chicago Press, 2005), p. 26-27.
[14] Harry Cocks, Nameless Offences: Homosexual Desire in the 19th Century (London: I B Taurus, 2009), Lucy Sarah Chesser, Parting with my Sex: Cross-Dressing, Inversion, and Sexuality in Australian Cultural Life (Sydney: Sydney University Press, 2008), Gayle V. Fisher, Pantaloons and Power: A Nineteenth Century Dress Reform in the United States (Kent, Ohio: Kent State University Press, 2001).
[15] Betsy Kuhn, Gay Power! The Stonewall Riots and the Gay Rights Movement, 1969 (Minneapolis: Twenty-First Century Books, 2011), p. 70.
[16] For more information, see Rosamond S. King, ‘New Citizens, New Sexualities: Nineteenth-Century Jamettes’ in Faith Smith (ed.), Sex and the Citizen: Interrogating the Caribbean (University of Virginia Press 2011), pp. 214-223