Tributación de los intercambios de bienes o servicios por criptomonedas En las operaciones de permuta se aplican para efectos tributarios y por supletoriedad

Pere DeRoy with Namela Baynes Henry

Once the law’s there, still on the book – nobody would feel comfortable Quincy ‘Gulliver’ McEwan (2012)¹ Same-sex intercourse, sodomy and cross-dressing have been illegal or prohibited in Guyana since the beginning of the country’s colonial era to the present.

Laws against sodomy were introduced as part of Roman Dutch legislation during the Dutch colonial era and were continued under British common law during the British colonial era (Carrico, 2012, p. 8). Guyana inherited its legal structure from European colonial powers and maintained many of these laws after gaining independence in 1966, and well after the past government (under the administration of the People’s Progressive Party/Civic) initiated a constitutional reform between 2000 and 2001, which shaped the current 2003 Constitution of Guyana. Emerging from this legal backdrop are mechanisms for shaping and monitoring social norms regulating sexuality in Guyana. The parameters of the legal structure in Guyana additionally shape the construction of the current cultural, socioeconomic and political landscapes of the country.

Moreover, this inherited legal structure allows us to understand: 1) how social structures² create degrees of vulnerabilities and marginalisation for lesbian, gay, 1 Quincy ‘Gulliver’ McEwan, director of Guyana Trans United, is a transgender

activist in the country and a plaintiff in a case, McEwan, Clarke, Fraser, Persaud and SASOD v. attorney general of Guyana that challenged the law that bans cross-dressing in Guyana. McEwan was interviewed on 27 Nov. 2012 by Namela Baynes Henry, SASOD and Envisioning. An excerpt is included in the Guyana Portraits section of the Telling Our Stories (2014) documentary series.

2 Social structure is the organised pattern of social relationships/institutions that together compose society. These structures are not immediately visible to the untrained observer; however, they are present and affect all dimensions of human experience in society.

bisexual, transgender (LGBT) persons; and 2) how these same structures have the potential to activate positive change in the lives of people who identify as LGBT in Guyana.

This chapter provides an analysis of how current criminal law acts in Guyana have affected the wellbeing³ of its citizens who identify as LGBT, in an effort to advocate for conditions that ensure their human rights and security.

In addition, it presents a picture to help the government clearly grasp how these laws have played a major role in the formation and maintenance of social norms that stigmatise and discriminate against LGBT persons in all areas of Guyanese society. To inform its analysis, the chapter draws on 25 face-to-face interviews conducted in the country in 2012 by the Envisioning Global LGBT Human Rights team (Envisioning) in partnership with the Society Against Sexual Orientation Discrimination (SASOD). The interviews recount the daily experiences and opinions of LGBT Guyanese mobilised across varied backgrounds related to race, gender, sexual orientation, economic situation, locale and education. It is written from the perspective of a young Guyanese student pursuing graduate studies at York University with support from a grassroots human rights activist and Envisioning community researcher. The latter has been organising in Guyana on behalf of LGBT persons for more than 20 years, and has also mobilised at the local, regional and international levels, to challenge laws and sociocultural values that have been marginalising and oppressing the LGBT community, and disciplining people’s sexuality and identity.

Context

The Co-operative Republic of Guyana is a multicultural postcolonial society with a population of 746,955, comprising an indigenous population, descendants of people who came to Guyana primarily as slaves or indentured labourers, and others. Thus, as well as its original inhabitants, the backgrounds of its people range from Europe/Portugal and Africa (referred to as Afro-Guyanese) to China and India (referred to as Indo-Afro-Guyanese). These diverse groups are fused together by the English language, although indigenous languages are also spoken.⁴

Guyana is an English-speaking country on the Northeast coast of South America. It shares borders with Suriname, Venezuela and Brazil, and covers nearly 215,000 square kilometres. Its capital, Georgetown, is located on the Atlantic coast. Although Guyana is geographically located in South America, 3 Wellbeing is a good or satisfactory condition of existence; a state characterised by

health, happiness and prosperity; welfare. Also see Michaelson et al. (2009).

4 Statistics obtained from the Bureau of Statistics – Guyana website, Population

& Housing Census Final at: https://www.statisticsguyana.gov.gy/census.html (accessed 20 Jan. 2018).

its plantation history and shared cultural history of British colonialism situates it within the English-speaking Caribbean community (Caricom, which stands for the Caribbean Community and Common Market). The plantation history of Caricom is largely responsible for shared social, cultural, economic and political relations, and institutions that shape the realities of those living in Caricom’s member countries. A former colony of the French, Dutch and British, Guyana is one of the 11 countries⁵ (Carrico, 2012, p. 6) in this region where British colonialism introduced laws criminalising same-sex relationships and cross-dressing, and it is the only country in South America that criminalises sex between men (Glickhouse and Keller, 2012). Breaching these laws has a range of penalties, for example, in Guyana two years to life imprisonment, and in Barbados life imprisonment for ‘buggery’, and up to ten years for ‘serious indecency’ (Jones, 2013).

Criminal laws – discriminatory laws According to Melinda Jankie:⁶

Guyana has a very good Constitution, and we have incorporated many human rights conventions, human rights treaties, [for example]

conventions of all forms of racial discrimination, elimination [of]

discrimination against women, the international convention of civil rights. So [the] basic framework is … there.

I think the main challenge here is date legislation and out-of-date attitudes, based on ignorance, fear of other, [and a] combination of other [issues that] led to actions and activities that are totally unacceptable and discriminate against people who are LGBT.

LGBT individuals living in Guyana have had a long struggle for equal rights and acceptance. Two illustrations of this struggle (Kissoon, 2013) date back to 1959 (when Guyana was still a British colony referred to as British Guiana) and 1968 (after the country had gained independence and was renamed the Cooperative Republic of Guyana). In the first situation, two gay men were arrested and charged for attempting to marry. Interestingly, in their later attempt at a public wedding, the police did not intervene. In 1968 a young person – who would have been considered male at birth – was arrested for 5 These former British colonies in the West Indies are: Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Trinidad and Tobago. Recently, these laws have been successfully challenged in the courts, in Belize in 2016 and in Trinidad and Tobago in 2018. For more on the Belize case see Orozco, ch. 9.

6 Melinda Jankie, an attorney-at-law and executive director of the Justice Institute Guyana Inc., interviewed on 27 Nov. 2012 by Namela Baynes Henry, SASOD and Envisioning. An excerpt is included in the Guyana Portraits section of the Telling Our Stories (2014) documentary series.

wearing a miniskirt (Kissoon, 2013). In both cases, these individuals challenged the heteronormative codes of sexual orientation and gender identity, including gender expression (SOGIE). They were arrested and charged, and the legal structure and medical system perceived them as − and treated them as − either criminals or mentally ill; indeed, the court sent the young cross-dresser for psychiatric treatment (ibid.). These cases demonstrate how identification outside of heterosexuality was regarded as deviant, and behaviour aligning with this deviation warranted a criminal law response. Similar struggles may have occurred prior to 1959, but there is no record of them.

In attempting to understand why these individuals were viewed in this way and subjected to such treatment, it is important to recognise the perceptions of cross-dressing and same-sex relations that were prevalent during this period, and how they affected the lives of persons who identify outside of the acceptable heterosexuality norm. Although Kissoon recognises that several cultural and social factors influence homophobiaand transphobia – such as religious conservatism, mainstream media, normative family structures and culture – he argues that laws are primarily responsible for the formation and maintenance of social norms in all areas of society, at the individual, organisational and institutional levels.

Guyana has laws against ‘buggery/sodomy’, ‘gross indecency’ and homosexual behaviour, which profoundly influence discourses about sexuality in private and public spheres of social life. They particularly discourage any acceptance of and/or tolerance for diverse sexual orientations and gender identities, regarding them as a threat to deep-rooted social norms of heterosexism and heteronormativity as the social fabric of Guyanese society.

Inherited from the colonial era, ‘sodomy laws’ (using the term ‘buggery’) were included in Guyana’s Criminal Law (Offences) Act (8:01) of 1893, and have remained unchanged. Sections 352 to 354 of that act criminalise consensual intimacy between men in private. The first of those sections penalises acts of

‘gross indecency’ between men in these terms: ‘any male person who, in public or private, commits, or is a party to the commission, or procures or attempts to procure the commission, by any male person, of any act of gross indecency with any other male person shall be guilty of misdemeanour and liable to imprisonment for two years’ (Caricco, 2012, p. 8). Section 353 states that

‘everyone who (a) attempts to commit buggery; or (b) assaults anyone with intent to commit buggery; or (c) being a male, indecently assaults any other male person, shall be guilty of felony and liable to imprisonment for ten years’

(ibid.). This section refers to both consensual and non-consensual homosexual acts between males, as well as attempts at ‘buggery’ between homosexuals and heterosexuals, regardless of consent. Section 354 of the act reads: ‘Everyone who commits buggery, either with a human being or with any other living creature, shall be guilty of felony and liable to imprisonment for life’ (ibid.).

Since the laws specifically speak to the illegality of same-sex relations between men, one could argue that same-sex relations between women are legal in

Guyana. However, Christopher Carrico argues that, in more recent years, sexual offences laws have more clearly identified men having sex with men and women having sex with women as the subjects of these laws designed to deal with ‘unnatural offence’, buggery, sodomy and ‘indecency’ (ibid., p. 1).

Unlike these laws, under the Criminal Law (Offences) Act, cross-dressing is listed as a minor offence in the Summary Jurisdiction (Offences) Act (8:02).

Section 153 (1) (xlvii) states that a man wearing ‘female attire’ or a woman wearing ‘male attire’ in public may face prosecution and conviction – or they may be fined by the court (SASOD, 2014, p. 3). These laws seem to punish those who threaten gender norms, such as feminine-presenting men and masculine-presenting women.

According to the report prepared by SASOD for the 21st Round of the Universal Periodic Review (UPR):

Despite having the constitutional right to the freedom of expression (Article 146), LGBT persons oftentimes choose not to express their orientations and identities because they are threatened, discriminated against and victimised. Transgender persons are expressly forbidden from expressing their gender identity because of Section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act, which makes it an offence of cross-gender dressing. This violates rights to human dignity, freedom of expression and protection from discrimination based on gender.

As a result of this law, transgender persons face high levels of direct discrimination and targeted violence from both the police and private actors (citizens). (p. 6)

The report then gives an example of this discrimination by drawing on a case from April 2014:

Two transgender sex workers were injured in a drive-by shooting by assailants using pellet guns. Even though the victims have reported the matter to the police and they have provided vital information which helps to identity the assailants, the police took over a month to charge the perpetrators. (ibid.)

Moreover, on September 6 2013, Chief Justice Ian Chang issuing his ruling in the case of Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) vs. Attorney General of Guyana on Section 153(1) (xlvii) of the Summary Jurisdiction (Offences) Chapter 8:02 which stated that cross-dressing in a public place is an offence only if it is done for an improper purpose. This ruling while seen as a minor victory for the transgender Guyanese, as the Chief Justice states that cross-dressing to express sexual orientation or gender identity could never be an offense, it is still very unclear as he did not say what the term ‘improper purpose’ means.⁷

7 McEwan, Clarke, Fraser, Persaud and SASOD v. attorney general of Guyana was filed

This partial victory has not been accompanied with sensitisation to counter prejudice and discrimination perpetrated in Guyana, and basically undermines the freedom of expression of certain groups of people. Two short films, Sade’s Story and Selina’s Voice, created by SASOD and Envisioning, capture the impact of the dressing law and the challenges visited upon individuals who cross-dress as an aspect of their gender identity.

Sade’s Story looks at the Constitutional Court ruling banning cross-dressing and the impact of the law, through the eyes of Sade Richardson, a transgender fashion designer. The film also explores how the cross-dressing law created conditions conducive to the violation of Sade’s basic human rights. Violence often occurs when individuals recognise or perceive that the person before them is a man dressed effeminately or in female attire. Sade relates experiencing violence when using public transport to go to work, and facing cultural and structural violence when trying to access healthcare and advocating for fair treatment in the workplace. Sade says, ‘Honestly, I would not be surprised if tomorrow somebody kills me and my body’s found somewhere’ and recounts an experience one morning while waiting for a minibus to travel to work:

There were two [men]. One said to the other, ‘That’s the anti-man. You see how she’s dressing? I told you, let’s beat her, let’s beat her’. The other man replied, ‘That’s not a woman! That’s a man! Let’s beat him’. Then one came over to me and said they must never see me at night, because they would make sure they kill me. Nobody can do anything about it, police or nobody can do anything about it. And that’s the thing that stayed in my mind. He is right! They can beat me and kill me or do me whatever, and police and nobody can do anything about it. That’s the mentality most of them have. It’s OK to throw things at me. It’s OK for buses to kick me out. It’s OK to make me feel fucked up every day, because there is nothing anybody can do about it.

In Selina’s Voice, Selina Maria Perez, a transgender woman, reflects on growing up and being singled out for not behaving like most of her peers (boys), and

‘feeling like a freak’, especially as it was impossible to find information that would help her to better understand herself.⁸ As a result, she became very shy and introverted, because she felt that expressing herself in the way she wished to would probably get her into trouble as such behaviour was not encouraged.

in Feb. 2010 by four of seven trans persons convicted under the cross-dressing law, and SASOD, which was also an applicant in the proceedings. The court’s ruling upheld the law as consistent with constitutional rights and did not define ‘improper purpose’. The litigants appealed the ruling, however the Court of Appeal upheld the prior ruling. The appellants have appealed the case to the Caribbean Court of Justice (CCJ) where the case was heard on 28 June 2018. For details see: www.u- rap.org/web2/index.php/component/k2/item/64-press-release-mcewan-et-al-v-attorney-general-of-guyana-court-of-appeal-decision (accessed 18 Apr. 2018).

8 Interviewed on 15 Oct. 2012 by Namela Baynes Henry, SASOD and Envisioning.

An excerpt is included in the documentary Selina’s Voice (2013).

She reflects on how family and neighbours would say ‘speak up like a man’, when she was merely speaking in her natural voice. Her experience of being silenced as a youth encouraged her to study and to engage in advocacy work for people like herself and others in vulnerable positions. Selina then goes on to chronicle the direct violence she experienced as she engaged in LGBT advocacy work. One incident made her feel ‘like a dog knocked down on the road and left to die’ after being attacked by a group of men for refusing to engage in sexual relations, and being refused services by police and healthcare workers at a public hospital in Georgetown.

These laws undermine the constitutional goal to ensure the fundamental rights and freedoms of citizens. ‘Fundamental rights’ are enshrined in the Guyanese Constitution and protect its citizens from discrimination and unfair conduct by the executive, judicial and legislative branches of the state, so they can live freely. The state is expected to perform the ‘duty of protecting every member of society from injustice or oppression’ (Heilbroner, 1992, p. 53), and ensuring an individual’s fundamental rights are not violated.

But they cannot be enforced between private citizens or members of the private sector (Guyana Association of Women Lawyers, 2011). Enshrined in Article 149 of the fundamental rights section of the 1980 Constitution, is the constitutional goal to protect Guyanese citizens from discrimination

‘on the grounds of race, place of origin, political opinion, colour, creed, age, disability, marital status (whether single or married), sex, gender, language, birth, social class, pregnancy, religion, conscience, belief or culture’ (ibid.).

However, discrimination ‘on the grounds of sexual orientation’ or gender identity/expression has not been included as a fundamental right in Guyana’s Constitution (Kissoon, 2013), even though protection of the individual’s right to life is enshrined in its fundamental rights section (Article 138), as well as protection from slavery or forced labour (Article 140); protection from torture, inhuman or degrading or other treatment (Article 141);

protection against arbitrary search or entry (Article 143); and the right to a healthy environment (Article 149). With the protection of these rights, one might assume that an environment would be facilitated where all Guyanese citizens could secure their wellbeing.

Laws against sodomy and cross-dressing, and the exclusion of protection of an individual’s right to engage in homosexual acts, stigmatise, discriminate against and criminalise that person and deny them their fundamental human rights. These laws contradict or undermine a basic principle of human rights, which is to ensure all people are equal in dignity and entitled to the same fundamental rights, and that no one is expected to have more rights than another person, especially on the grounds enumerated in the Constitution of Guyana. In addition, these laws and the omission of SOGIE signal a prejudice against and exclusion of some groups of people, and imply that the unfair treatment of certain groups of people is constitutional.

This conflicting dynamic is heightened by the fact that Guyana is a signatory to several international human rights instruments, seven⁹ of which enshrine the basic principles of human rights (SASOD, 2014, p. 2). More specifically, these laws undermine fundamental rights and basic human rights principles and result directly in significant levels of direct, cultural and structural violence, and the automatic configuration of a group of people as criminals and outsiders on the basis of their SOGIE.

Discriminatory laws and violence in Guyana

Discriminatory laws and violence in Guyana