Modern Vagrancy in the Anglophone Caribbean by Dr. Janeille Zorina Matthews

Modern Vagrancy in the Anglophone Caribbean Janeille Zorina Matthews and Tracy Robinson

Abstract Contemporary debates about crime and criminalisation in the Anglophone Caribbean are centred on serious or major crimes. The body of laws governing minor offences, including vagrancy, that have been durable and are applied to police the poor and socially excluded have received little attention. Yet these broadly and vaguely worded colonial criminal laws have become indispensable in constructing gender non-conforming and transgressive persons as modern vagrants in the Caribbean. This article explores the history and persistence of vagrancy legislation and their current use in policing gendered bodies that are “out of place” and “out of order”.

Keywords:

modern

vagrancy,

McEwan

case,

queerness,

Guyana,

Anglophone Caribbean

Introduction On Friday night, February 6, 2009, and early Saturday morning, February 7, seven young persons were arrested in the streets of Georgetown, Guyana.

They were charged with loitering under the 1893 Summary Jurisdiction (Offences) Act and also the offence of being a “man” appearing in “female attire” in a “public way or public place” for “any improper purpose”.

They were all assigned the status of male at birth and by society and were wearing clothing associated with females at the time of arrest.

The seven could be described as “trans” persons, using Rosamond King’s (2014: 12) broad understanding of the term as capturing the array of “unconventional gender experiences in the Caribbean”, not constrained by a fixed notion of gender identity or limited to those who self-identify as “transgender”. The seven spent the weekend locked up at Brickdam Police Station in Georgetown and on Monday, February 9, they were taken, collectively, before the Georgetown Magistrates’ Court. As is typically the Caribbean Journal of Criminology, Vol. 1, No. 4, April 2019, 123–154 | ISSN 0799-3897 (print)/ 0799-4364 (online version).

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case with summary offences involving poor defendants, none of the seven was represented by counsel. Each person pleaded guilty to the gendered clothing offence, was convicted and ordered to pay a fine of GY$7,500 (US$36). The loitering charges were later dismissed. In hearing the case, the acting chief magistrate told the group of trans persons they were confused about their sexuality and instructed them to go to church and give their lives to Jesus Christ (McEwan and others v Attorney General 2013). The next day, a leading Guyanese newspaper highlighted the arrests and convictions in a sensational court report titled, “He Wore Blue Velvet …? Seven Fined for Cross-dressing” (Stabroek News 2009).

One year later, four of the seven convicted – Gulliver McEwan, Angel Clarke, Pheches Fraser and Isabella Persaud – together with the Society Against Sexual Orientation Discrimination (SASOD), and represented by pro bono lawyers, filed a constitutional claim before the High Court of Guyana (hereinafter referred to as the “McEwan case”),1 arguing that their constitutional rights were infringed by the cross-dressing law itself, the actions of the police, who they said failed to explain the reason for their arrests, and the statements of the acting chief magistrate.

The summary offences of loitering and being a male dressed in female attire for an improper purpose are colonial vagrancy laws and the 2009 arrests and convictions in Georgetown provide a rare glimpse into how law enforcement has used and continues to use colonial vagrancy laws to police not only the urban poor but also those working class “public bodies” (Thomas 2006) identified as sexual or gender transgressors (Nicolazzi 2014a), bodies that are “out of place” and “out of order”.2

Purpose and Aims Historically, the nub of vagrancy was its emphasis on idleness, or becoming involved in illegitimate labour (Nicolazzo 2014b, 5, 11). While vagrancy offences identified some misconduct, such as drunkenness, wandering or idle and disorderly conduct, their application suggested that “[t]he punishment … is not for doing, but for being” (People v Allington 1951: 919). Vagrancy characterised idleness as a moral failing and associated it with dangerousness (Ramsay 2012: 164). It had a preventive focus that emphasised the potential for future wrongdoing (Dubber 2005: 62). Vagrancy offences were notorious for giving law enforcement — 124 —

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“virtually unlimited discretion” to detain persons deemed to be suspicious and objectionable while only vaguely identifying what they had done (Goluboff 2016: 2). And, it was the urban poor who bore the brunt of these laws since they, generally, lacked “the prestige to prevent an easy layingon of hands by the police” (Douglas 1960: 13). As justice is more informal in summary courts and the high standards for evidentiary proof and procedural fairness are generally less strictly applied where the penalties are low and access to legal representation is more limited, vagrancy was pernicious because of its summary nature and not despite it.

In their more than three and a half centuries of application in the Anglophone Caribbean, vagrancy laws produced expansive and imprecise categories of impugned conduct that included loitering, wandering, disorderly conduct, drunkenness, begging, the use of bad language, neglect of family, practising obeah, and solicitation of prostitution. There is a vast literature on vagrancy in the colonial Atlantic world (for example, Foote 1956; Nicolazzo 2014a, 2014b; Paton 2014; Goluboff 2016) and many have acknowledged that, over time, these laws, and their application, have informed perceptions in the Anglophone Caribbean that “law and law enforcement” are tools of oppression (Harriott 2009: 3). Yet, relatively little attention has been given to the import of enduring vagrancy laws in policing and the administration of justice in the Caribbean today. While some surviving Caribbean vagrancy laws are now plainly obsolete, using outdated language like carriages, tubs, hoops, casks and puncheons, which have little relevance in the twenty-first century,3 criminal laws especially are characterised by legislative inertia – once they are made, they tend to stay, even when they are evidently no longer relevant or cease to be seen as crimes in popular imagination (Stuntz 2001: 556, 591).

Our aim in this article is not so much to argue that vagrancy laws, like the gendered clothing summary offence in Guyana, are anachronistic tools of social control. Rather, our goal is to show that if we focus our analysis on vagrancy laws as out-of-date laws, we risk missing a crucial element: their elastic quality – born of their breadth and vagueness – and their paradoxical timelessness. We use the term “modern vagrancy” throughout this article to emphasise the suppleness and manipulability of aged vagrancy laws in policing the urban poor who disrupt the sex/gender order, such as the seven arrested in Georgetown — 125 —

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in February 2009. The paratactic listings of disparate, broadly framed vagrancy offences (Nicolazzo 2014b: 17) found in Anglophone Caribbean laws establish a flexible legal resource for securing ‘law and order’ and disciplining dissident public bodies during very different historical moments. We acknowledge that there is nothing especially modern about the use of vagrancy laws to police the sex/gender order in the Caribbean. Post-emancipation vagrancy provisions produced “a web of low-level law regulating gendered behaviour and relationships” (Paton 2014). Nevertheless, colonial vagrancy laws assume modern dimensions as a flexible legal structure that is deployed to police prevailing gender expectations and anxieties and to demarcate citizenship in the postcolonial realm.

In this article we argue that modern vagrancy inhabits a contradictory domain since it enforces “restrictive gender codes” (King 2014: 125) in post-colonial Caribbean states in which women’s rights “have gained somewhat more currency” (Guyana 1999: 184) and gender is mainstreamed to position the nation-state as modern (Lazarus-Black 2003; Robinson 2004; Rowley 2011). For us, the juxtaposition of new laws that emerged in the “regendering” of the Caribbean state over the last three decades and the old vagrancy laws establish a boundary between the gender nonconforming “public bodies” that should be feared and the worthy gendered subjects who are entitled to protection as citizens. They underscore the point that in the postcolonial nation-state “not just (any) body can be a citizen” (Alexander 1994).

Moreover, we argue that modern vagrancy tracks “queerness” as described by Nadia Ellis (2011). Ellis explains queerness as “an unstable and shifting signification” (11) of “sexual and gender nonnormativity, a break in the line of gender” (12). In another moment, Ellis (2015: 3) goes further, describing queerness in terms of insufficiency, “this gap between the ground on which one stands and a compelling place beyond”. She borrows from José Esteban Muñoz (2009: 1), who offers queerness as “that thing that lets us feel that the world is not enough.” These different senses of queerness help to explain related types of unsettling. There is the unsettling of gender by the seven arrested in Georgetown in February 2009 and there is the unsettling consequent on their “rejection of a here and now” (Muñoz 2009: 1). Modern vagrancy readily tags queerness not — 126 —

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just because criminal laws and gender expectations help to constitute forms of citizenship (Valverde 2010: 219) but, also, because of their mutual instability. Neither names a fixed identity or a “categorical state”, “[q]ueer shifts, it moves, it does not rest” (Ellis 2011: 12). The same is true for modern vagrancy, which can “expand to include figures and actions not yet imagined” (Nicolazzo 2014b: 17).

In the sections that follow we provide a broad overview of the vagrancy laws in the Anglophone Caribbean, including their history. We then move to discuss the McEwan case, and the thinly forensic system they faced in which the process was punishment. Finally, we explore vagrancy’s role in controlling queerness in a modern postcolonial Caribbean.

Methodology We analysed legislation and the constitutions from the 12 independent countries and six overseas territories comprising the Anglophone Caribbean, court documents pertaining to the McEwan case, including affidavit evidence, police reports, and judicial decisions. In addition to doctrinal research, we used the case study method, which is ideally suited for research when “a ‘how’ or ‘why’ question is being asked about a contemporary set of events, over which the researcher has little or no control” (Yin 2014: 14). The case study method can be particularly useful to legal researchers concerned with how laws are “understood”, “applied”, “misapplied”, “subverted”, “complied with” or “rejected”, and the associated impact on such areas as “legal and policy making processes, court procedure, sentencing, [and] punishment ...” (Webley 2016: 3). The corpus of the case study includes not only our primary source material but also regional newspaper articles that reported incidents involving arrests for summary offences, newspaper court reports, doctrinal legal literature and social science research.

Caribbean Vagrancy Laws Only one statute in the Anglophone Caribbean still bears the name vagrancy in its title – The Bahamas Vagrancy Act 1939. Elsewhere, vagrancy offences form part of existing laws dealing with small charges,4 minor offences,5 summary jurisdiction,6 town and communities,7 and some penal and — 127 —

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criminal codes.8 Most vagrancy laws in the Caribbean are enduring laws with roots in post-emancipation laws and their later reforms. Vagrancy laws existed from the earliest days of British colonialism in the Caribbean and were part of the transition from slavery (Paton 2014: 6–7). They were a central tool for controlling the labour and conduct of former slaves and indentured immigrants and enforcing moral codes about gender, family and religion in the enlarged free population (Paton 2014: 7). After slavery ended, there was a proliferation of penal, employment and immigration law-making aimed at controlling the labour and conduct of the enlarged free population of former slaves and indentured workers in the Caribbean (Mohapatra 2004: 474). Vagrancy laws helped to keep freed blacks and indentured workers close to the plantations and regulated their lives in urban areas.

The emerging regime of social and legal regulation after slavery also emphasised constructing “a proper gender order” for black women and men around patriarchal marriage (Hall 2002: 122). The concept of vagrancy was inextricably linked to the poor relief system, the privatisation of welfare of families and the inculcation in men of patriarchal values of household leadership and support. Mindie Lazarus-Black (1994: 117–18) explains that the vagrancy law enacted in 1834 in Antigua, which made it a crime to refuse to work to maintain one’s family, reflected the anxieties of Antiguan elites regarding low marriage rates and large numbers of children born outside marriage, and their fear that the poor relief system would be overburdened.

Colonial vagrancy laws in the Anglophone Caribbean covered a varied and imprecise assemblage of wrongs that loosely identified persons “whose mode of life was offensive to the community” (Perkins 1958: 240).

By the mid-twentieth century, vagrancy laws were widely associated with policing the poor and homeless, especially in urban areas (Bryan 2000), female sex workers (Moore and Johnson 2000), and religious dissidents, such as practitioners of obeah, Spiritual Baptists (Paton 2014: 14) and Rastafari (Campbell 2014: 204). In the last two decades, vagrancy laws have emerged occasionally as a tool to address the harassment of tourists (Barbados Minor Offences Act 1998; Dominica News Online 2013).

Guyana’s Summary Jurisdiction (Offences) Act 1893 is typical of the loci for Caribbean vagrancy laws, which are predominantly laws dealing — 128 —

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with small charges or minor crimes. The Guyanese statute was enacted to modernise and consolidate post-slavery summary criminal laws (Paton and Romain 2014). The 1893 law also added some new provisions, such as the gendered clothing offence (Paton and Romain 2014). But for adjustments to the fines imposed to reflect changing currency values, many of the vagrancy offences in the 1893 law are largely unchanged in over a century. Noticeably, the language of the Summary Jurisdiction (Offences) Act 1893 shifts from criminal actions, such as larceny and assault, to criminal status in some of the provisions related to vagrancy, with the headings “Vagrants”, “Rogues and Vagabonds” and “Incorrigible Rogues” (Guyana Summary Jurisdiction (Offences) Act 1893, ss 143, 144, 147).

In their definition of vagrants, rogues and vagabonds, Caribbean laws emphasise idleness, indigence and dependency on one side, and illegitimate labour on the other, such as the practice of obeah or prostitution. In Antigua and Barbuda’s Small Charges Act 1891 a vagrant is a person, “being able wholly or in part to maintain himself by work or by other means and wilfully refusing or neglecting so to do.”9 Offenders are deemed to be “idle and disorderly” persons and are liable to imprisonment of not more than one month.10 Such persons are similarly defined as “idle and disorderly” in the Cayman Islands where “a rogue and a vagabond” separately includes an expansive category of people including “every person found by night, without any lawful excuse in or upon” a sweeping list of enclosed spaces including gardens, yards, and ships.11 In Guyana, a “vagrant, or idle and disorderly person” covers a wide range of conduct, including a man who wilfully refuses or neglects to support his wife and children, persons begging and persons loitering in various places including a porch, store, plantation building, cane-field or provision ground.12 Rogues and vagabonds include persons convicted for a second or subsequent time for being a vagrant or idle and disorderly person.13 The Guyana Summary Jurisdiction (Offences) Act also deems as rogues and vagabonds any person who “by the practice or pretended practice of obeah” seeks to influence anyone, obtain money from them, purports to “restore to another health, or to cause or divert attention.”14 Similarly, in The Bahamas, a range of persons are deemed vagrants, including those who can work and fail to maintain themselves, a person wandering — 129 —

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abroad or begging, a person who professes to tell fortunes and a person who gambles.15 A vagrant also includes a person who is “a common prostitute, loitering or soliciting in a street or public place for the purpose of prostitution.”16 Vagrancy offences went well beyond the specific provisions branding certain persons as ‘vagrants’, ‘rogues’ and ‘vagabonds’ and were particularly important to regulating urban spaces in the Caribbean (Bryan 2000: 28). Jamaica reproduced vagrancy provisions in the standalone Town and Communities Act 1843. In Guyana’s statute, one section, 153(1), is devoted to “minor offences chiefly in towns”. The section lists 49 disjunctive minor offences regulating the lives of the urban poor, which include flying a kite in a public way, beating a mat in a public way, hauling timber on anything but a vehicle on wheels, leaving at large a “ferocious dog”, grooming an animal on a public way, behaving indecently or irreverently near a church, and loitering about a shop.17 At section 153(1)(xlvii), the law prohibits “being a man in any public way or public place, for an improper purpose, appears in female attire; or being a woman in any public way or public place, for an improper purpose, appears in male attire.” Very similar to Guyana’s section 153(1), section 3 of the Jamaica Towns and Communities Act 1843 comprises 18 unrelated offences that include loitering in any public place and soliciting a person for the purpose of prostitution, indecently exposing your person in public, using threatening and abusive language, using profane, indecent or obscene language, defacing walls or buildings, and burning wood or rubbish in a street.

In both instances, these disjunctive minor offences in urban spaces, placed side by side as independent elements, without coordination between them, is the quintessence of the paratactic style (Nicolazzo 2014b: 17). The “continuous style [with] no end in itself” (Aristotle 1994: 387–88) produces not only indeterminacy but an open-endedness that makes vagrancy serviceable as an expansive police power in different moments (Nicolazzo 2014b: 17). Nicolazzo (2014b: 17) explains that the catalogue of offences “does not propose an essential theory of vagrancy, but proliferates the many forms that vagrancy might take while leaving open the possibility that the list could expand to include figures and actions not yet imagined.”

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Vagrancy laws arise from an inordinate interest in guarding an amorphous moral order, which gives them a quality of timelessness. A 2008 decision of the Court of Appeal of the Eastern Caribbean Supreme Court, Commissioner of Police v Nias, reviewed the constitutionality of the vagrancy-type summary offence of using abusive, blasphemous, indecent, insulting, profane or threatening language in a public place.18 Calvin Nias was charged in the magistrates’ court with the offence of using abusive language to a woman in a public place, contrary to section 8(a) of the St. Kitts-Nevis Small Charges Act 1892. In 2008, the Court of Appeal of the Eastern Caribbean Supreme Court rejected his claim that section 8(a) violated his right to freedom of expression.19 The Court of Appeal acknowledged that section 8(a) was broad enough to criminalise the use of abusive language where there were no bystanders to hear it and also where the bystanders did not take offence to the language. The Court of Appeal concluded these speech restrictions served the legitimate aim of protecting “public and community values” (Commissioner of Police v Nias 2008, [66]). Justice of Appeal Ola Mae Edwards [68] said, “The issue concerning s 8(a) is not about archaism or modernity but about morality.”

Unlike other restrictions on constitutional rights where the courts must rigorously assess if the restriction is proportionate, the judge thought that “The question for this court is not whether there are other and better ways of achieving the legitimate end, but whether the restriction of freedom of expression is as a result of a measure that is reasonably appropriate and adapted to achieving public morality.” Clifford Hall makes the point in a slightly different way, arguing that while the concept of vagrancy “with its deep-rooted historical associations” may be offensive today, the criminal law should not “turn a blind eye to conduct which remains severely antisocial, which offends public decency and morality, which disrupts public order or which resembles activities of the known criminal classes.” In other words, the moral project of vagrancy can always be refashioned as “new cloth on an old garment” (1998: 42).

Criminal Justice’s Normalised Anomaly Early Saturday morning, February 7, 2009, Gulliver McEwan, Angel Clarke, Pheches Fraser, Isabella Persaud and three other trans persons all ended — 131 —

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up detained in the same cell at the Brickdam Police Station, having been arrested in two operations following what the police said were two unrelated complaints in different parts of the city (Percival 2010). Although McEwan, Clarke, Fraser and Persaud would go on to file a constitutional action in 2010 and identify themselves as “transgender” in their affidavit evidence, we do not know how they identified themselves at the time of arrest. Nevertheless, the group appears to fall within Rosamond King’s (2015: 22) broad use of the term “trans” to describe “a range of identities and the varieties of strategies people use to choose, inhabit, or express a gender other than that which society assigns to their body.”

Even though their arrests arose from two distinct complaints, the magistrate heard the complaints together, as is permitted when the complaints are founded on the same facts or form part of a series of offences of the same character.20 The proceedings in the Georgetown Magistrate’s Court were the antithesis of trials for serious crimes before the High Court or Supreme Court. The time from arrest to conviction for the gendered clothing offence was short, less than 72 hours over a weekend; the seven were tried together, none had lawyers and all pleaded guilty. This prompt aggregate justice exemplifies modern vagrancy, which “is less about establishing guilt under law than identifying, labeling, and controlling disadvantaged and disfavored populations” (Natapoff 2015: 263). Criminalised as undesirables, the victimisation faced by a number of those arrested on the streets of Georgetown was shadowed and rendered invisible. Moreover, the process, which included three nights in detention at a police station, was more punitive than the fine imposed on conviction.

Summary courts, like the Georgetown Magistrate’s Court that heard the cases brought against McEwan and the others, are “the face of the administration of justice to most people” in the Anglophone Caribbean (Alleyne 2005: 2). In Guyana, there were ten times as many reports of summary offences as indictable or serious crimes in 2015: 7,494 reports of indictable and 73, 258 reports of summary offences (Guyana Police Force 2015: 3). Trust in the police in Guyana is the lowest in Latin America and the Caribbean (Sutton and Baxter 2017: 2–3), yet there is little analysis of the policing of summary crimes, which represent a significant portion of people’s experiences with the police. Data on summary offences in the — 132 —

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annual reports of the police in Guyana, unlike data for serious crimes, is not disaggregated or closely analysed (Guyana Police Force 2015). Needless to say, few police forces report on their policing of the summary offences of vagrancy. The Bahamas, which has a stand-alone vagrancy statute, is an exception. Scattered across multipurpose penal or summary offences laws, vagrancy offences are somewhat inconspicuous, and they also present a challenge of classification because they are characterised by “eclecticism” (Ranasinghe 2010) and heterogeneity.

The Arrests of Fraser and Persaud: Criminalisation and Underprotection A few hours after the arrest and detention of McEwan and Clarke, around 3:30 a.m. on Saturday morning, February 7, Pheches Fraser and Isabella Persaud were arrested in the area of the Parliament building and also taken to the Brickdam Police Station (Fraser 2010: [7]). The complainant, Steve Donlop, alleged that Fraser, Persaud and two others took refuge in his bus after a group of “boys” started “interfering” with them and throwing bottles at them. Donlop said that he made a complaint to the police after his bus was damaged and Fraser grabbed his cell phone (Stabroek News 2009). In her evidence, Fraser confirmed that she and Persaud were in a group of trans persons who were being harassed about the way they were dressed (Fraser 2010: [5]). Fraser said that when they answered the harassers, the latter began throwing bottles at them (Fraser 2010: [2]).

Fraser alleged that she and Persaud attempted to defend themselves but ultimately fled because the crowd was too large. According to Fraser, when they got to the station, the harassers made allegations that she and Persaud had robbed and beaten them up, and the police denied her request to give a statement. The throwing of bottles and stones at persons in the streets of Georgetown perceived to be gay or trans was a typical form of attack complained of by working-class members of the lesbian, gay, bisexual and transgender (LGBT) community in Georgetown (Carrico 2012: 18).21 Police Constable Percival’s affidavit evidence in the constitutional case filed in 2010 makes no reference to the attack on the group of trans women. Percival said that a complaint was made in his presence that “men who were dressed like women in clothing such as skirt and — 133 —

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wigs, and acting under the pretext that they were women, were robbing unsuspecting passersbys in the vicinity of Stabroek Market” (Percival 2012: [8]). The police sidestepped Fraser and Persaud’s alleged victimisation.

Fraser and Persaud’s evidence (Fraser 2010; Persaud 2010) and that of the bus owner (Stabroek News 2009), suggested that these “complainants” were, in fact, Fraser and Persaud’s attackers. Persaud, in speaking about the treatment of working-class Guyanese trans persons says, “we are always treated as trash” (Caribbean IRN 2018).22 This tendency to withhold legal protection from those regarded as undesirable, inevitably leaves such persons overcriminalised and underprotected (Natapoff 2006: 1731).

Fine of $7,500 and a Dismissal: The Process as Punishment In Guyana, any person who is arrested or detained has a constitutional right to be informed as soon as reasonably practicable of the reasons for his or her arrest and must be permitted to retain a legal adviser and be able to hold communications with him or her.23 McEwan, Clarke, Fraser and Persaud separately said that their group made numerous inquiries about the reason for their arrest and detention and received no satisfactory answer. Persaud said that when they asked why they were being kept at the Brickdam Police Station one police officer told her “that they do not answer questions from certain people” (Persaud 2010:[8]).

Persaud said that she asked for something to eat at the station and, instead, the police officer shouted at her and told the group of arrested trans persons that they needed to ensure that someone brought clothes for them to change into (Persaud 2010: [8]). McEwan, Fraser and Persaud all gave evidence that they asked the police to make a telephone call and this request was refused. They also alleged that they learnt for the first time of the charges of loitering and being dressed in female attire for an improper purpose when they got to court on Monday, February 9, and that they pleaded guilty to “wearing female attire” even though they did not fully understand what was going on (Fraser 2010 [13]).

After they were fined, the group of seven were told to return to court in relation to the loitering charges, which were ultimately dismissed.24 The police alluded to their “improper purpose” as prostitution though no charges were laid related to sex work, and the police evidently lacked any proof to substantiate a case of solicitation for prostitution. Police — 134 —

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Constable Percival rejected the allegation that the four litigants were not advised of the charges against them. He said that he witnessed another officer informing McEwan and Clarke of the reasons for their arrest and their right to make a telephone call, have visitors and retain an attorneyat-law (Percival 2012: [9]). He said that he advised Fraser and Persaud in the same terms when they arrived at the police station. The Permanent Secretary in the Ministry of Legal Affairs also asserted that the police was acting in accordance with standard operating procedures and the claim made by McEwan and Clarke “that they did not ‘fully understand what was going on’ is self-serving, malicious and vexatious” (Willis 2011: [11]). In the constitutional action brought by McEwan, Clarke, Fraser and Persuad, the chief justice (acting), Ian Chang, accepted the evidence of the litigants that they had not been properly informed about the charges and found that their right to liberty under the Constitution had been breached. The chief justice said the breach was “offensively belittling to the applicants and should be discouraged”, and ordered compensation to each litigant of $40,000. The Court of Appeal reversed this ruling on the ground that it was not appropriate for the chief justice to make a finding of fact in this case where the evidence of the litigants was contested by Police Constable Percival and there was no cross-examination of the deponents (McEwan and others v Attorney General 2017: 64).

The discrepancy between the alleged complaints of robberies by the group of seven and the charges ultimately laid – chiefly of being dressed in female clothing for an improper purpose and loitering – gives some weight to the claims of McEwan and the others that they were not advised of the charges in a timely fashion. Carrico (2012: 16) also noted that some LGBT persons he interviewed were detained without being told the reasons for their arrest. A 17-year-old trans person involved in sex work said she was detained for three months before being told the offence with which she was being charged and that during those three months she was subjected to horrific humiliation, physical, and sexual violence (Carrico 2012: 16). Although the sanctions for summary vagrancy offences are relatively minor, arrest and detention are, in themselves, treacherous forms of regulation. The fine was relatively modest but the pre-trial detention in the police station over the entire weekend was itself a form of punishment. All seven also suffered humiliation as a result of — 135 —

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sensationalised media coverage, which included photographs of five of the defendants at court (Stabroek News 2009). They served time in pretrial detention even though they were only subject to a fine, a signal that the process is coercive and its own form of punishment (Natapoff 2015).

Gendered Vagrants New and Old Juxtaposed: The Regendered State Modern vagrancy, like historical vagrancy, tracks the unruly workingclass body that embodies “a break in the line of gender”. Working-class women and girls who unsettled prevailing codes of female morality and working-class men who failed to live up to gendered expectations of being patriarchal breadwinners and economic caretakers have always been subject to the application of colonial vagrancy laws. Even though the sexually transgressive female sex worker has always been the paradigmatic gendered vagrant, she is repositioned in the modern Caribbean as sex crimes receive greater attention as gendered harms.

Beginning with Trinidad and Tobago’s Sexual Offences Act 1986, most Anglophone Caribbean countries have over the last three decades substantially reformed their laws dealing with sexual offences in response to the feminist campaigns against violence against women. Those very laws aimed at protecting the rights of women, convert solicitation for prostitution in public from a minor crime of vagrancy to a serious sexual offence. For example, the Trinidad and Tobago Sexual Offences Act provides that solicitation for “immoral purposes”, whether in public or private, is an offence punished by a term of imprisonment of up to five years.25 The new serious sexual offence of solicitation does not replace the summary vagrancy offence of solicitation, which still exists. Rather, the new offence is anchored onto the colonial vagrancy offence, which enjoys constitutional respect as a law that predates the Constitution.26 Together, the old law and the new law identify the moral subjects who are entitled to the benefit from regendered laws aimed at protecting women and they also distinguish, as sex offenders, certain feminine bodies “with an irresponsible, ‘non-productive’ sexuality” that threatens the postcolonial nation (Alexander 1994: 10).

Mindie Lazarus-Black (2003: 980) describes the process of regendering the Caribbean state as a shift in state response that occurs when harms — 136 —

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that women face are brought to public attention and given a name and legal significance. The regendering process invests heavily in heterosexuality as normative sexuality (981). As a result, several contemporary sexual offences laws in the Anglophone Caribbean that more clearly define and increase the penalties for sexual violence and remove the application of discriminatory rules of evidence and procedure that characterised trials for sexual offences, also heighten the criminalisation of same-sex sex (Robinson 2009). For example, the 1995 Sexual Offences Act of Antigua and Barbuda distinguished buggery from bestiality. The penalty for the latter remained ten years imprisonment, and that for consensual and non-consensual buggery between adults rose to 15 years.27 A new crime of serious indecency criminalises sexual acts other than sexual intercourse and creates exemptions for sexual acts within heterosexual marriage and between males and females over age 16.28 As a result, serious indecency targets primarily same-sex sex.

The maintenance and expansion of laws criminalising same-sex sex are not as noticeably linked to vagrancy as the enlarged criminalisation of prostitution in the modern sexual offences laws, yet they also embed and reproduce modern vagrancy. The reiteration of same-sex sex as deviance by the regendered Caribbean state, provides normative grounding for modern vagrancy. Carrico (2012: 8) found that the more serious crimes of buggery and gross indecency were rarely enforced to punish consensual same-sex sex in Guyana, while minor offences of vagrancy, like loitering, were routinely used in Guyana to criminalise working-class youth suspected of being gay (2012: 8). The two legal frameworks – the largely unenforced serious crimes of buggery and indecency and the amorphous minor crimes of vagrancy – work in tandem and are deployed alongside each other (27). They produce fear in reporting hate crimes and impunity for violence against LGBT persons since perpetrators know they will not be punished, or regard themselves as privately enforcing the law (4). They also generate a heightened risk of arrest and detention for minor offences and, in that process, vulnerability to police violence (4). Modern vagrancy, however, identifies urban working-class queer public bodies as those who will be habitually detained and convicted. They face not just poverty but also, often, family exclusion and displacement, truncated education and endemic discrimination, that have limited their ability to enjoy a private — 137 —

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life and extended more of their lives in public spaces. Those who are homeless or street sex workers are the most hypervisible as deviants.

Improper Persons: The ‘Bad Man’ in a Dress and Wig In mainstreaming gender in the law, the regendered postcolonial Caribbean state also reifies categories of gender and “recognizes explicitly that some citizens are male and others are female” (Lazarus-Black 2003, 980). The gender non-conformity of the seven trans persons who appeared in the Georgetown Magistrate’s Court that February morning troubled binary understandings of “male” and “female”.

The Guyanese state authorities took their cues from the given names of the seven arrested and their formal legal identification and insisted on regarding them as “male”, including for the purposes of the offence of being a “man” dressed in “female attire”. Guyana has no law that allows trans persons to change the gender markers on their identity documents.

When the acting chief magistrate hearing the 2009 case told them “that they were confused about their sexuality and that they were men and not women … [and] that they must go to church and give their lives to Jesus Christ” (McEwan and others v Attorney General 2013: 8), she was engaged in the rite of “legalising” norms of gender and religion. Caribbean judicial officers practice what Lazarus-Black (1997: 629) calls “rites of domination” which are customary ways of relating to persons who appear before lower courts that “preserve and promote class and gender hierarchies”, and include the judicial officer speaking to the parties before the court “as though judicial power existed when in fact no legal basis exists for those actions” (636–37). These rites create an environment which is intimidating and humiliating for litigants (636–37).

The offence of being a male dressed in female attire for an improper purpose, found in Guyana, is a rarity in the Caribbean today. However, in the colonial Atlantic world, it was not uncommon for vagrancy laws to place restrictions on gendered clothing. William Eskridge (1997: 1040) reports that as many as 58 American cities banned cross-dressing, most in the late nineteenth century and early twentieth century; in Chicago such a law made it an offence to “appear in a public place in a state of nudity, or in a dress not belonging to his or her sex”. In 1837, British Guiana — 138 —

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required anyone over the age of five years old to be “decently clothed”, which meant “a shift and petticoat” for females and a “shirt and pair of trowsers” for men (Paton and Romain 2014). Dress codes were a means of maintaining colonial order and could be used to mark who was out of place. A decade before the 1893 gendered clothing offence was enacted, note was taken that an Indian indentured labourer who faced multiple arrests for wandering abroad without a visible means of subsistence and unable to satisfactorily account, appeared in court dressed in female clothing (Paton and Romain 2014), echoing Shani Mootoo’s thought that indentureship often meant “transitioning into a queerness of no return” (Mootoo 2014: 168). Afro-Caribbean cross-dressing carnival characters parodied Europeans and powerful colonial figures, destabilising racial, class and gender categories (King 2014). Deemed disruptive, cross-dressing

by Afro-Trinidadians during Carnival was restricted in 1895 (Errol Hill 1972: 40). Also, in 1919 the Trinidad Carnival Deputation Committee provided guidelines for carnival costumes that focussed mainly on female masqueraders and supported prohibitions “against the wearing of clothing to disguise the sexes” (Franco 1998: 66).

Not much is known about the origins of the gendered clothing vagrancy offence in Guyana found in section 153(1) of the Guyana law, except that the phrase “for improper purposes” was a late addition to the draft clause in 1893. It was introduced just prior to the enactment of the law (Paton and Romain 2014). The phrase became the heart of the constitutional litigation launched in 2010. Acting Chief Justice, Ian Chang, in his 2013 ruling, concluded that dressing in clothing associated with the opposite gender was not itself a crime, distinguishing such dress for an “improper purpose” as the gravamen of the offence (McEwan and others v Attorney General 2013: 26). He said that “it is not criminally offensive for a person to wear the attire of the opposite sex as a matter of preference or to give expression to or to reflect his or her sexual orientation (sic)” (McEwan and others v Attorney General 2013: 26). Counsel for the applicants, Douglas Mendes SC, questioned the claim that the offence did not punish gender non-conformity per se, only if it was for an improper purpose. In the June 2018 hearing before the Caribbean Court of Justice (CCJ), he pointed out that the law only criminalised “improper purposes” when associated with non-normative gender expression (CCJ 2018). It was — 139 —

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not a crime for a “man” to be dressed in “male attire” or a “woman” to be dressed in “female attire” “for an improper purpose” (CCJ 2018). That the “improper purpose” was only criminal when associated with nonnormative gendered clothing insinuated that gender non-conforming persons were “improper persons”.

After the Chief Justice’s 2013 ruling, the first named litigant and head of the newly created Guyana Trans United (GTU), Gulliver McEwan, acknowledged that “The Chief Justice was relatively clear that once you are expressing your gender identity, it’s not criminal,” but added that “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” (Stabroek News 2013). A key aspect of the constitutional case filed by McEwan, Clarke, Fraser and Persaud, was the argument that the gendered clothing offence was vague and lacked sufficient criteria within the law to guide a person as to what was proscribed and what was allowed.

The well-known risk of vague laws is that they may trap the innocent because they do not provide proper warning about what is permitted and what is not, and that they generate “arbitrary and discriminatory enforcement” because a “vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis” (Grayned v Rockford 1972: 108).

In giving the decision of the Guyana Court of Appeal, Chancellor Carl Singh (ag.) acknowledged that the terminology “improper purpose,” more so than “female” or “male” attire, was “rather broad in its meaning” (McEwan and others v Attorney General 2017: 60). He invoked the imagery of a “bad man” in a wig in rejecting the claim that the law was constitutionally vague. He said that: a plea of lack of certainty and accessibility would hardly avail a man who puts on a dress, a wig and high heeled shoes and while wearing lipstick, pretends to be a woman in distress and enter a taxi intending to rob the driver, whom he does rob and on being caught and prosecuted, pleads that section 153(1)(xlvii) under which he was charged was not sufficiently clear, to enable him to regulate his conduct (63).

The Chancellor reposed faith in judges to resolve any ambiguity in the phrase “improper purposes” on a case by case basis. The principle of legal — 140 —

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certainty gave way to pragmatic legal arrangements to police “out of place” and “out of order” public bodies epitomised by a ‘bad man’ in a dress, wig, high-heeled shoes, and wearing lipstick. A former president of the Guyana Bar Association noted that none of the publicised arrests for cross-dressing involved robberies using female clothing as a disguise, leading him to conclude that the arrests were “taking advantage of an already oppressed minority” (Sharples 2017). Moreover, in the Chancellor’s example, the defendant commits robbery, a felony which gives rise to imprisonment of up to 14 years.29 Little is added by the charge of crossdressing for an improper purpose, a minor offence with a modest fine.

Ironically, the very day that Singh C (ag.) gave this decision of the Court of Appeal, 27 February 2017, a magistrate, Dylan Bess, excluded from his Georgetown courtroom, a few streets away, Petronella Trotman, a trans woman. Magistrate Bess cited section 153(1)(xlvii) of the Guyana act as the basis for his repeated exclusion of trans women from his courtroom.

In the face of Trotman’s assertion that she was a person entitled to the protection of the law and against violence, the magistrate invoked the spectre of the monstrous cross-dressing criminal. Bess told the BBC that “sometimes persons commit offences dressed as males and then when they appear in court dressed as a female it can have implications for how a victim can identify his or her accuser, or vice versa” (Sharples 2017). In response to a complaint from GTU, the Guyana Judicial Service Commission concluded the magistrate’s actions were in breach of the right to access justice and the courts. However, it did not indicate that any discipline would follow (Judicial Service Commission 2017).

Both the Chancellor and Magistrate Bess invoked gender crossing as an icon of ‘badness’, a queerness that modern vagrancy should be fashioned to regulate. In 2010 when infamous ‘don’ of the Tivoli Gardens community in Jamaica, Christopher “Dudus” Coke, was captured after the horrific incursion into the community to arrest him, which left over 70 persons dead, he was wearing a female wig and dress as disguise. A police officer is reported to have been in fits of “uncontrollable laughter”, saying, “[w]e could not believe that the big don had a pink wig in his car! Pink!

We were in shock” (Mackey 2010). Yet, as Ellis (2011: 22) points out, these are “men bad enough to ride the dangerous edges of masculinity”. They represent “a complex emblem of queerness, vulnerability, and badness” — 141 —

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(Fumagalli et al. 2014: 2). Their gender crossing threatens the order of things (Alexander 2005: 8) and disturbs “juridical regularities” (Foucault 1997: 51), hence the acting chief magistrate insisting to all present in court, including the seven defendants, that these “were men”.

The spectre and spectacle of the gender transgressive ‘bad man’ haunts the Caribbean. Dangerous and disruptive masculinity is an element of this imagery of the queer human monster threatening the nation and its fabric. The ‘Dreads’ of Dominica in the 1970s are also post-colonial vagrants, legally identifiable by their appearance (dreadlocks) and designated to be members of a “prohibited and unlawful” society or association (Dominica Prohibited and Unlawful Societies and Associations Act 1974). With their disavowal of paid employment and the political and economic order, and their use of the property owned by others or the state, the Dreads were not just ‘bad men’; they represented transgressive masculinity. In the context of the unrelenting nation building and post-colonial Caribbean project of “making men” (Edmondson 1999) of West Indian black and brown men, Dreads were ‘wastemen’, doing nothing with their lives and undermining the development of the nation, the antithesis of citizens.

Modern vagrancy also appeals to protection for vulnerable masculinity, perversely converting men pelting bottles and seeking sex into legal complainants – men being robbed of something. Noticeably, the initial complaint lodged against McEwan and Clarke was made by a man who claimed that he approached them assuming that they were cisgender female sex workers and was “robbed” (Percival 2012: [5]). Since neither McEwan nor Clarke was charged with solicitation or robbery, the reference to the crime of robbery may be more allusive, assuming male entitlement to purchase sex and suggesting that the gender expression of McEwan and Clarke was an assault on or an interference with the complainant’s masculinity. Their gender non-conformity disturbed the binary regendered state and historical vagrancy laws have been flexible enough to react.

Loitering, Liming and Liberty The meaning of freedom or liberty is a recurrent theme in the discourses around the 2009 Georgetown arrests and their aftermath. Gulliver McEwan, as head of GTU, asserted that “[trans] people should be free to — 142 —

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live their lives” (Newsnow Staff 2016). McEwan says that her community “should feel comfortable on the streets but police are constantly ‘picking trouble’ and even when people from the public throw insults, harass and even threaten transgender persons, the police give no sense of protection for them” (Newsnow Staff 2016). In Carrico’s study, many LGBT respondents said that they had been threatened or charged with loitering while others “liming” were ignored by the police (Carrico 2012: 16). One respondent said that they are “not allowed to enter the park or gardens and I’m chased by the police and other people when I go to the seawall” (20).

In his 2013 ruling, Chang CJ (ag), proffered one understanding of liberty when he concluded that the trans community was free to dress consistent with their gender identity in public. In Ramson v Barker (1982), the Guyana Court of Appeal said that there was a right to inhabit public spaces without interference unless there is evidence of an apprehension of a breach of the peace. Quoting with approval from Blackstone’s Commentaries on the Laws of England, the Court held that the right to liberty contemplated the “power of locomotion, of changing situation, or removing one’s person to whatever place one’s inclination may direct without imprisonment or restraint, unless by due process of law” (204). The Court defined liberty as “the antithesis of physical restraint or coercion” (204).

Given this expansive power of locomotion, the line between vagrancy offences like loitering and wandering and the constitutional right to freedom of locomotion is a fine one. In a 2010 High Court ruling from Trinidad and Tobago, Carol Gobin J said that it could not be said that a group of young men – which included the applicant, the son of a police officer – who were hanging out on the side of the road after a party late at night drinking beers were loitering (Henry v Ragoobar 2010). She defined loitering as “remaining in or hanging around a restricted but not necessarily defined area without any apparent or legitimate reason” ([18]).

She then went on to distinguish loitering from ‘liming’ as a “uniquely and proudly Trinidadian” concept. Gobin concluded that loitering required proof that one had a purpose that was not legitimate or innocent ([19]).

Whereas “liming in our culture requires no explanation or apparent reason. By definition it is an activity which involves idling, socialising, chatting and bantering for recreational purposes…. Liming is not the same as loitering. My appreciation for our Trinidadian culture and our language precludes me from coming to any other conclusion” ([19]).

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Despite her insistence otherwise, evidently Gobin J’s definitions of loitering and liming overlap because, the freedom to be idle, wander, or hang around an area for no apparent reason are “part of the amenities of life” (Papachristou v City of Jacksonville 1972: 164). Douglas J in Papachristou said that these amenities have “been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity…” (164). The crux is that the vast deference given by AngloCaribbean constitutional law to the state to take measures and introduce laws to protect public order and community values, ensures that the power of locomotion is not evenly enjoyed. Indeed, the Guyana Constitution, like many Caribbean constitutions, contemplates that the right to personal liberty can be legitimately restricted “in the case of a person who is … a vagrant, for the purpose of … the protection of the community.”30 Modern vagrancy has provided “legal tools”, and constitutionally acceptable ones thus far, “to remove undesirable persons” (Wilson and Kelling 1982: 35).

Conclusion There may be a shift in legalities when the Caribbean Court of Justice (CCJ), the highest court of appeal for Guyana, delivers its decision in the McEwan case.31 Modern vagrancy marks which bodies cannot readily be citizens, but citizenship is not ‘a zero-sum game’ and it has scalar dimensions (Valverde 2010: 228, 238). Four of the seven arrested in 2009 shifted the scale of law from the magistrate’s courts dealing with minor offences to the superior courts when they challenged the constitutionality of the gendered clothing offence and the actions of state officials, producing a “complex interaction of heterogeneous forms of juridical capital” (237).

Of her attendance at the hearing on June 28, 2018 at the Caribbean Court of Justice, appellant, 25-year-old Isabella Persaud, said, “I did not get to speak but my voice was heard” (Caribbean IRN 2018). Queerness is not fixed or static (Ellis 2011). It reacts not only to discourses of crime and insecurity but also to local and global conversations about human rights related to gender and sexual and gender diversity. Modern vagrancy is a feature of the administration of criminal justice that is at once ubiquitous and barely perceptible. The aggregation of seven defendants from two unrelated arrests in a Brickdam cell and their trial together in a magistrate’s court, along with the very detailed, sensational media — 144 —

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account of the court proceedings identifying the gender disruptors by name and five photographs of them at court that day (Stabroek News 2009), drew public attention to modern vagrancy and strengthened group ties.

Both, in turn, were the beginnings of significant political mobilisation of the trans community and constitutional litigation that may inaugurate more shifts in both queerness and modern vagrancy.

Postscript Nearly a decade after the 2009 arrests, in a decision delivered on November 13, 2018, the Caribbean Court of Justice unanimously ruled that the crossdressing offence was unconstitutionally vague and left trans persons “in great uncertainty as to what is and is not allowed” (McEwan and others v Attorney General [2018] CCJ 30 (AJ) [84]). The impugned law was repeatedly referred to as a vagrancy law and described as part of a body of laws aimed at keeping “the dispossessed and depressed under control” [141].

The judgment of the President of the Court reflected on key elements of what we have described here as modern vagrancy – the manipulability of enduring criminal laws in policing bodies that are out of place and out of order. He insisted that, “No one should have his or her dignity trampled upon, or human rights denied, merely on account of a difference, especially one that poses no threat to public safety or public order” [1] and that it is the duty of courts to protect those who face such stigmatisation and exclusion [2]. The President of the Court criticised the magistrate’s remarks to the group imploring them to give their lives to Jesus Christ as inappropriate proselytising, revealing “stereotypical thinking” about transgender persons [90]. The extent to which this important ruling from one of the region’s final courts of appeal not only shifts but destabilises modern vagrancy in the Anglophone Caribbean, will be seen in the years ahead.

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Notes 1

The case filed in 2010 was decided by the High Court of Guyana in September 2013 (McEwan and others v Attorney General 6 September 2013, High Court, Guyana) and by the Guyana Court of Appeal in February 2017 (McEwan and others v Attorney General 27 February 2017, Court of Appeal, Guyana). At the time of writing, the case was awaiting a decision of the Caribbean Court of Justice which heard arguments in the appeal on June 28, 2018. Both authors belong to the Faculty of Law, The University of the West Indies Rights Advocacy Project (U-RAP), which is a project within the Faculty of Law, The UWI, aimed at promoting human rights, equality and social justice in the Caribbean by undertaking and participating in human rights litigation in collaboration with human rights lawyers and civil society organisations. U-RAP continues to coordinate the litigation in the McEwan case and has played an integral role in the litigation strategy.

2

In an interview, Jamaican author Anthony C. Winkler defined being “out of order” as “a brazen violation of manners and expected behaviour” (Tonkin 2007).

3

See for example, Guyana Summary Jurisdiction (Offences) Act sections 143, 153.

4

See for example, Antigua and Barbuda Small Charges Act 1892; Dominica Small Charges Act 1891; St. Kitts-Nevis Small Charges Act 1892.

5

Barbados Minor Offences Act 1998.

6

Belize Summary Jurisdiction (Offences) Act 1953; Guyana Summary Jurisdiction (Offences) Act 1893; Turks and Caicos Summary Offences Ordinance 1899; Bermuda Summary Offences Act 1926.

7

Jamaica Town and Communities Act 1843.

8

Anguilla Criminal Code 2009, St. Lucia Criminal Code 2004, St. Vincent and the Grenadines Criminal Code 1988.

9

Antigua and Barbuda Small Charges Act 1891, section 52.

10 Antigua and Barbuda Small Charges Act 1891, section 52.

11

Cayman Islands Penal Code (2017 Revision), section 159.

12

Guyana Summary Jurisdiction (Offences) Act 1893, section 143.

13

Guyana Summary Jurisdiction (Offences) Act 1893, section 144(1).

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14

Guyana Summary Jurisdiction (Offences) Act 1893, section 145(2).

15

Bahamas Vagrancy Act 1939, Schedule 1.

16

Bahamas Vagrancy Act 1939, First Schedule.

17

Bahamas Vagrancy Act 1939, section 153.

18

See e.g., St. Kitt-Nevis Small Charges Act, section 8.

19

Commissioner of Police v Nias 2008.

20 Guyana Summary Jurisdiction (Procedure) Act 1893, section 31. See also Singh v Howard (1969).

21

Both authors are a part of U-RAP which commissioned the Carrico study.

22 Both authors are a part of U-RAP which commissioned the Caribbean IRN video.

23 Guyana Constitution s. 139(3).

24 Pheches Fraser was fined $18,500, higher than the maximum permitted for the gendered clothing offence (Fraser 2010). It is not clear why she was fined for this larger sum but one possible explanation is that she was charged and convicted of an additional offence related to damage to the bus of Donlop.

25 See, for example, Trinidad and Tobago Sexual Offences Act 1986, section 23.

26 Trinidad and Tobago Constitution, section 6.

27 Antigua and Barbuda Sexual Offences Act 1995, sections 12, 13.

28 Antigua and Barbuda Sexual Offences Act 1995, section 15.

29 Guyana Criminal Law Offences Act 1893, section 221.

30 See, for example, Guyana Constitution 1980, article 139(1)(h).

31

The CCJ heard oral arguments in the McEwan case on June 28, 2018.

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References Legislation Anguilla Criminal Code 2009, Cap C140.

Antigua and Barbuda Small Charges Act 1891, Cap 405.

Antigua and Barbuda Sexual Offences Act 1995, Cap. 154.

Bahamas Penal Code 1927, Cap 84.

Bahamas Penal Code (Amendment) Act, 2014.

Bahamas Sexual Offences Act 1991, Cap. 99.

Bahamas Vagrancy Act 1939, Cap. 89.

Barbados Minor Offences Act 1998, Cap 137 Barbados Reformatory and Industrial Schools Act 1926, Cap. 169.

Belize Crime Control and Criminal Justice Act, 2000 Ch. 102 Belize Summary Jurisdiction (Offences) Act 1953, Cap. 98.

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