Antoine Cross-dressing lawsuit more than just about clothes
By Antoine Craigwell
In recent times, it seems that those occasions when a 40th anniversary is celebrated, that as a milestone event, it has taken on a greater significance beyond, as the saying goes, “life begins at 40.” The Indian High Court ruled in its landmark decision in June 2009 that being homosexual is not a crime and that the law, Section 337, imposed by the British in 1861 during colonial rule, was itself antithetical to the Indian Constitution. Around the world, the lesbian, gay, bisexual and transgender (LGBT) community was celebrating and commemorating the 40th anniversary of the Stonewall Riots, which occurred in Greenwich Village in New York City.
Anthony Bess-Photo courtesy of Stabroek News
It is on the eve of the celebration of Guyana’s 40th Anniversary as a republic, that Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud, and the Society Against Sexual Orientation Discrimination filed suit in the Supreme Court to have Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, Chapter 8:02, declared as irrational, discriminatory, undemocratic, contrary to the rule of law and unconstitutional. In effect, they have issued a challenge to the Guyana’s colonial era laws.
Between Feb 6 and 7, 2009, seven men: Anthony Bess, Fraser, Joshua Peters, Persaud, Mc Ewan, Clarke, and Leon Conway were arrested for wearing women’s clothing. According to a Feb 10, 2009 article in the Stabroek News, Bess, Fraser, Peters and Persaud pleaded guilty, and Mc Ewan, Clarke and Conway pleaded not guilty to the charge.
But, the case now before the Guyana Supreme Court is one that reaches deep into the country’s history and culture, and extends to other aspects of the country’s constitution. It challenges the cross-dressing law, which the plaintiffs contend is discriminatory and unconstitutional, and on the international scene, has precedence. As discriminatory, the law the men violated by dressing in women’s clothing also prohibits women from wearing men’s clothing. As unconstitutional, with Guyana’s independence from the British in 1966, and with a revised 1980 Constitution, there are specific sections that prohibit violations of the rights of any of the country’s citizens and provides for the guarantee and protection of basic rights, such as, gender, race, ethnic origin, and expression of religion.
Joshua Peters-Photo courtesy of Stabroek News
But, unless the Court abjures jurisdiction, deferring instead to a higher court, it is stepping into the stalled or abandoned national debate on the issue of recognizing that being gay is just as much a right, a human right, to breathe the same air and to have the same blood coursing through the veins of those who are aware of their sexual orientation and accept themselves. It has to make a clear statement on the separation of church and state –especially to the influential conservative religious lobby: the Christians, Hindus and Muslims, who for their own reasons, became unlikely allies to oppose passage of legislation granting protection to gays and lesbians.
According to an article published on Feb 23, 2010 in the Stabroek News, as well as seeking declarations, reliefs, and damages, the plaintiffs want the Court to declare that the Acting Chief Magistrate Melissa Robertson, who told the men during the course of the hearing, on Feb 9, 2009 that they must attend church and give their lives to Christ, was improperly influenced by irrelevant considerations, discriminated against them on the basis of religion and violated a fundamental right of Guyana as a secular state in breach of Articles 1, 40, 145 and 149(1) of the Constitution.
“Unless the wide-ranging constitutional reforms conducted in 2001 and 2003 are to be dismissed as pure window-dressing, then the emphasis placed on non-discrimination during that process should guide the High Court to interpret the expanded equality rights generously in order to protect one of our society’s most marginalized groups,” said Arif Bulkan, one of the Guyanese attorneys assisting with the case, in a Feb 23, 2010 article in Kaiteur News.
Leon Conway-Photo courtesy of Stabroek News
With the Indian High Court decision, there was a mixture of jubilation from the Indian LGBT community and from advocates for the rights of all of the country’s citizens; there were, as well derision and condemnation from the Christian denominations and other groups who have been blinded by religious indoctrination. Suffice it to say, the Indian government issued a statement saying they would not oppose or make any move against the High Court decision; that means the government saw sense and recognized its own constitution.
Nevertheless, beyond recognizing its own constitution, the Indian government, which still carries vestiges of the colonial British rule, was recognizing the country’s culture, which ran deeper and predated the colonialist. When the High Court issued its ruling, two commentators with the London Guardian offered their views: Balaji Ravichandran, in the Jul 2, edition of the newspapers, wrote: “The importance of this verdict cannot be understated. This is the first time that an Indian court has gone on record to say that sexual minorities are not second-class citizens, and that they cannot be discriminated against…However, for decades, the police and sometimes society at large used the law as an excuse to persecute gay men and women, who were harassed, blackmailed, detained or raped, unable to seek any protection or justice from the law. In addition, the law was also a significant impediment to fighting HIV/Aids among sexual minorities.”
Indian couple after the High Court ruling, Jun 2009
In another commentary in the same Guardian edition, Anil Bhanot stated that homosexuality is an accepted part of the Hindu religion, the national religion of India: “The ancient Hindu scriptures describe the homosexual condition to be a biological one, and although the scripture gives guidance to parents on how to avoid procreating a homosexual child, it does not condemn the child as unnatural.” In ancient Hindu texts, reaching as far back as 2,100 BCE, Bhanot said that the culture recognized homosexuals, accorded them a place as members of the society, and who even had their own Hindu deity, “Mother Goddess Bahuchara, for their spiritual link to the Absolute Brahm.”
But for Guyanese gays and lesbians, should the Supreme Court rule in their favor, recognizing their right to not only wear women’s clothing if they choose, but to be themselves, it would be a sharp signal change in a fragile society that has long been divided along racial lines. With a favorable decision, the Court would effectively say that it is unlawful to call someone, if suspected as gay, an “anti-man” or if suspected as lesbian, as a “dyke.” Perhaps this is the first salvo of a barrage of legal actions challenging the status quo – to encourage a change in thinking, of seeing brothers, sisters, nephews, nieces, mothers, fathers, cousins, uncles, aunts, close friends as they see themselves: same-gender loving people. Perhaps this action, though a first, is a solitary firework cartridge shot into the dark skies of ignorance and insensitivity, struggling valiantly to illuminate the recesses of fear, stigma and discrimination that is the Guyanese mentality, and fizz out and die. Or, perhaps this legal challenge is the first of many firework cartridges shot into the night sky, followed by many more, encouraged by the bravery and pioneering step of the first, so that those who live in shadows of doubt about who they are could emerge, accept themselves, find acceptance in their families, community and society, and move on to make more valuable contributions to their societies.
This legal action should not be stifled, suppressed or its larger purpose subverted. As occurred in India after the High Court decision, a BBC reporter Damian Gramaticas filed his report from Delhi and spoke with a representative of the Roman Catholic Archdiocese of Delhi who said that the High Court ruling would mean an increase in HIV infections and more acts of pedophilia. Claims, which have been disproved by community workers, gays themselves – by the examples of their lives, and in countries such as South Africa, which has made same-sex marriage a recognizable civil institution equal to heterosexual marriages in that country’s Constitution. That claim has also been disproved with the decline in HIV infection rates when people know and feel comfortable with themselves, and that homosexuals are not pedophiles.
Seon Clarke-Photo courtesy of Stabroek News
However, such a decision is sure to raise the heckles and ire of the heavy religious sector, many who are expected to ignore the human rights aspect of their actions in favor of their pseudo-adherence to the family as a unit and nucleus of society; they who would be expected to mount lobbing efforts to go as far as a constitutional amendment to outlaw homosexuality. Buggery, as an offence already exists in the Penal Code, and is still prosecuted with extreme sentences. While the society in Guyana has inched away from an immediate post-colonial mentality regarding buggery, as a law it is more often prosecuted in cases where pedophilia or child abuse is suspected, often also accompanied by sodomy charges.
For former British colonies with sodomy and buggery laws, such as many, if not all, the countries of the West Indies that still hold on to anti-human rights laws, the British themselves passed laws recognizing and accepting homosexuality in England and Wales since 1969, long before many Caribbean countries gained their independence from Britain. Laws enacted in Britain were not promulgated to the colonies: slavery was prohibited in England long before it was abolished in the colonies, because profit was the motive. So the question remains, if in England laws were passed protecting homosexuals, why do former British colonies continue to preserve anti-sodomy and buggery laws, even after their “colonial masters” had seen the light?
As stated earlier, there is evidence of the existence and the acceptance of homosexuality in the Indian culture. It is also known that among African cultures, homosexuality was just as widely practiced, and still is, though surreptitiously, as a way of initiation into manhood, intimidation, control, possession, surrogacy in place of a woman, or a in a true relationship. But, as in India, with the arrival of the Christian British colonialists to Africa, there was a determined effort to eradicate one of the facets of a culture, except that many of the colonialists themselves engaged in homosexual behavior. Guyanese, through the British, are peopled with descendents of Indians and Africans, and removing the stain of the divisive colonial influence would in some way restore some semblance of normalcy to both peoples who have been struggling for more than 40 years to discern their own identity.
Seyon Persaud-Photo courtesy of Stabroek News
The young men mounting this challenge to the country’s laws have embarked on an ambitious, historic, and unprecedented action, and in so doing, are recognizing their cultural heritage. In fact, they are demonstrating that they have chutzpa to challenge the country’s outdated laws. They should have the support of all those pushing for human rights and LGBT rights world over. Guyanese, in particular, should see that this is not as the beginning of the end, of a descent into degeneration, corruption or degradation, but one of being invited to an enlightened and more aware humanity, as the start or a step in the direction to accepting themselves, faults, past and all.
Perhaps the Guyanese Supreme Court could seize this opportunity to take a decisive stand and continue the sloughing off the scales of the British laws and influences that linger like a decaying extra dermis, preventing the citizens from truly living, and following the path of nationhood begun with independence, then republicanism. The religious minded in the country need to remember, especially the Christians who claim and celebrate inclusiveness and forgiveness to practice what they preach. The Hindus, who so steadfastly cling to their traditional ritual practices, need to remember that being gay is just as much part of their culture as the Vedas, deities, and the Bhagavad-Gita. The Muslims, need to find in the suras and the Koran, the compassion toward all peoples The Prophet advocates.
Antoine Has the international gay community bought into a red herring- a national distraction?
By Antoine Craigwell
For centuries in Uganda, long before White men came, there were traditional kings, leaders of tribes, clans, and peoples, as the colonialists, those coming from England, or Scotland, knew very well. In this country steeped in tradition, there existed ample evidence that same-sex relations were practiced and were part of the culture. Wikipedia the online reference describes the rule of Danieri Basammula-Ekkere Mwanga II Mukasa, who was the Kabaka or king, from 1884 to 1888, and from1889 to 1897, and was the thirty-first Kabaka of Buganda. The king was known to have sexual relations with his pages and courtiers, and the colonists after their arrival, made efforts to impose their Christian morality and to stop him. The Church then became embroiled in a three-way struggle between the English Protestants, the French White Fathers and the Muslims to control the Bugandan court. In retaliation against the threats to his sovereignty, the king killed 22 of those who had converted to Christianity. Nearly 100 years later, in Oct 1964, Pope Paul VI canonized the group led by Charles Lwanga and his companions as the Uganda Martyrs. But, it was through various schemes and plots that Mwanga was eventually killed and the practice of homosexuality outlawed.
So it was, in the early history of Uganda, that the Christians battled with the civil authorities over traditional and cultural practices. Understanding Uganda’s societal structure requires an understanding of the cultural dynamics, which consists of three distinct ethno-religious groups: the traditionalists with tribes and kings; the Christians, many of whom have broken away from the established Roman Catholic Church and the Anglican Communion (Episcopal) to embrace the evangelical movement; and the Muslims, who adhere to the precepts of their religion.
It is from this religious and cultural cauldron that members of the Ugandan Christian evangelical movement emerged and joined forces with American Christians to exploit moral loopholes in four sections of the country’s Penal Code (pg 68 and 69). Sections 145 of the Penal Code states that anyone who allows or participates in any sexual act considered against the order of nature, including bestiality and homosexuality, would be punishable with life imprisonment. Section 146 imposes a sentence of seven years imprisonment on any one who attempts to commit any offence considered unnatural under Section 145. Section 147 states that anyone who indecently assaulted a boy younger than 18 years is liable to 14 years imprisonment and corporal punishment. Additionally, Section 148 stipulates that if anyone, in public or private, commits any act of gross indecency with another person, or participates in obtaining anyone to participate in any indecent acts; he or she would be subject to a sentence of seven years imprisonment.
To the Christian evangelists, while these laws violated the human rights of their own people, they were sanctioned and capitalizing on the Ugandan penchant for sexualizing all conduct or behavior perceived as inappropriate, sought to pin their hopes of furthering the cause of anti-homosexuality as a violation of morality.
The three Americans who came to Uganda in Mar 2009 were recruited by the Uganda-based Family Life Network to speak at workshops on ways to change people from gay to straight, said Val Kalende, a Ugandan activist with the organization Freedom and Roam Uganda. Two of the Americans, Caleb Brundidge and Scott Lively, spoke in favor of keeping homosexuality illegal but giving those convicted an option of therapy to cure them of their gayness, suggesting in their address to the parliament, that homosexuality is learned and curable, Kalende said.
Back home in the U.S., the American evangelists know that the right to freedom of expression is enshrined in the Constitution, but in a country where vestiges of the shame of homosexuality and the animosity from the past still lingered, their action had the effect of pouring jet fuel on smoldering embers.
Kalende, who is 28 years old and a board member of SMUG, the Ugandan gay and lesbian organization, is a spokesperson for the Civil Society Coalition on Human Rights and Constitutional Law, and in an email response said that religious fundamentalists have been for a long time behind the war against gays and lesbians in Uganda.
“Their ideas took hold and that is why the anti-homosexuality bill is in our parliament today. U.S based religious groups should be held accountable for the effects this bill has caused and will cause if it passes into law. They do not have such laws in their country. I do not see why they come here to brainwash Ugandans with their bent gospel,” Kalende said.
But, said Kalende, who is based in Uganda, the anti-homosexuality bill is a political populist gimmick to distract the attention of Ugandans from the real issues affecting the nation.
“Homosexuals have nothing to do with the hundreds of thousands of families that sleep without a meal or the millions of children who die unnecessarily every day from preventable or treatable diseases such as malaria, diarrhea, measles, or pneumonia; homosexuals are not the ones responsible for the lack of drugs and supplies at primary health care centers. It is easier to make people hate homosexuals than to create social change. The sponsors of this bill are playing escapist politics. They choose to blame homosexuals for the moral degeneration in the country when what they should be doing [is] to find the root causes of the problems and finding solutions,” said Kalende.
Aanne Mugisha, a Ugandan lawyer, human rights activist and a member of the Forum for Democratic Change (FDC), maintains a blog, and in one of her posts she quotes Dr. Sylvia Tamale’s presentation at a “public dialogue on the anti-homosexuality bill at Makerere University, in Nov, 2009, “Anyone who cares to read history books knows very well that in times of crisis, when people at the locus of power are feeling vulnerable and their power is being threatened, they will turn against the weaker groups in society.””
On the other side of the coin, is the mixing of religious tenets and civil law, a comingling forbidden in the U.S. as it would violate the separation of Church and State, which the evangelists sought, one to influence the other, in Uganda. Realizing that they were fast loosing ground to a strengthening and rising gay and lesbian community asserting their rights in the U.S., American evangelists decided to utilize every devious means to export their brand of extreme Christianity to vulnerable countries. The two terms of the Bush presidency, from 2000 to 2008, significantly advanced the Christian evangelists cause of strict morality beyond U.S. borders. This was apparent in the hogtying of African and other economically deprived countries dependent on U.S. aid, forcing all to conform to strict stipulations that American funding be contingent on compliance with abstinence only, anti-abortion, and anti-gay and anti-HIV treatment policies.
Members of the gay community world over are understandably horrified by the incidences of persecution of lesbians and gays in Uganda, as reported by Human Rights Watch, Amnesty International, the International Gay and Lesbian Human Rights Commission, SMUG; and from stories of individual gays and lesbians who have fled the country for fear of their lives. Moreover, while no one would or should attempt to minimize these incidences of persecution based on sexual orientation, it should be remembered that the hunting down and violence against homosexuals in Uganda mirrors, Jamaica, a country that has, with the government’s approval, persecuted those who are gay or lesbian. It is also important to note that Uganda and Jamaica were British colonies.
Nevertheless, as a country Uganda, with its deep religious divisions, is ripe and susceptible to American religious influence. In recent times, there has been a tendency for those in government to demonize or sexualize their political opponents with accusations of being gay or homosexual, or accusations of sexual immorality, as had been done to opponents of President Yoweri Museveni’s. Museveni seized power in 1986 and was elected president 10 years later.
A colonel in the Ugandan army, Kizza Besigye, challenged Museveni, and was charged with treason in 2001. After fleeing to the U.S., he returned to Uganda in 2005 to mount another challenge to the president, he was again arrested on treason and charged with rape; he was eventually acquitted of rape, but the treason charges are still being debated. With Besigye, who is a medical doctor, neutralized, Museveni assumed office again in 2006 for another term. The 1995 Uganda Constitution states that the president should serve no more than two terms, of five years each. Now, after fiddling with parts of the Constitution and with elections scheduled for 2011, as Museveni is attempting yet another term as president, one of his primary opponents, Olara Otunnu, has been accused of being gay.
Despite living in self-imposed exile in the U.S., Mugisha plans to return to Uganda as a candidate for public office, said, “The anti-homosexuality bill is intended to mask the true state of affairs, because if there is no focus on the length of his time in office, he [Museveni] would become the longest serving president.”
Since making her intentions known, she vehemently denied the calumnies being bandied about her, “I’m being accused of being a lesbian. I’m not a lesbian. I’m a mother of three children and I’m a heterosexual.”
The 50-year-old Otunnu is an advocate for children’s rights, especially those caught in conflicts zones. He was a former Ugandan ambassador to the United Nations and an UN Under-Secretary General whose resume reads like a Who’s Who of African diplomats. As a bachelor and since declaring his candidacy for president, Otunnu has been accused of being gay. Sources in Uganda claim that he is supposedly trying to find a wife to prove that he is not gay. However, of greater significance, should the anti-homosexuality bill continue and become law before the elections, then on the simple accusation – should Otunnu not find a wife to prove his heterosexuality – he would be arrested, imprisoned and disqualified; effectively as the opposition, he is removed from the electoral process. These accusations in Ugandan politics mirror those now facing Anwar Ibrahim, a former deputy prime minister and a political opponent to the incumbent prime minister in Malaysia. Ibrahim is facing his second battery of charges of sodomizing one of his aids; the only difference here between Uganda and Malaysia, the latter is a predominantly Islamic country.
The opposition, led by Otunnu has been calling for greater accountability. Reports state that since Museveni has been in power, despite his many previous electoral promises, basic social services have not been met or those in existence have not been improved. There are calls from many people, including members of the opposition, for the investigation of several government ministers, who it is alleged have misappropriated and embezzled significant sums of money given to the country when it hosted the 2007 Commonwealth Heads of Government meeting. Additionally, with the recent discoveries of oil, which promises untold riches for those in government, there has been no transparency in the bidding and contract award process especially for exploration, extraction, refinement, shipping and distribution.
In recent times Museveni has restored some of the traditional kingdoms, although only ceremonially, which were banned when Milton Obote (1966 to 1971) became president and maintained during the presidency of Idi Amin (1971 to 1979). With these restorations, Museveni now runs the risk of either the kings amassing power and influence to destabilize him, or he plans to employ the British tactic of divide and rule, to control the people: the Bugunda against the Baganda, both with longstanding animosities toward each other.
It is into this volatile mixture, which has become a confluence of circumstance, mostly created and stoked by the government, that David Bahati, a member of parliament and a member the Family Life Network, a branch of the secretive Washington, DC-based The Family, presented the anti-homosexuality bill in Oct 2009 (anti-homosexuality bill) that is making its way through parliament. When Bahati first introduced the bill, the president said he would support it. But, under pressure from foreign governments, Museveni has softened his stance to include mouthing platitudes that he would refuse to sign the bill if passed. He has made no effort to stop it from proceeding in committees. People familiar with the political process in Uganda suggest that the president is likely to continue stoking the flames of the anti-homosexuality bill as a tool to discredit his political rivals, create public hysteria, and do nothing for the benefit of the mounting international pressure, and still to appear to have reconsidered his position.
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