PUTRAJAYA, Oct 8 — For almost a year, the Muslim transgender community in Malaysia gained respite after the Court of Appeal ruled that an anti-crossdressing Shariah law in Negri Sembilan was deemed unconstitutional and void.

The relief might be short-lived, however, if the Federal Court decides to overturn the decision, with the community fearing backlash and “retaliation” from Islamic enforcers whose pursuit of the group could again become lawful.

“Our main concern will always be the retaliation from state religious authorities. There will be arrests and prosecution, blackmail, the whole intimidation and harassment.

“A lot of times it doesn’t have to amount to an arrest, nevertheless it will create trauma and fear,” said S. Thilaga, an activist with transgender awareness group Justice for Sisters.

“There might be a grudge on their part,” a transwoman who identified herself as Manggis, told Malay Mail Online, referring to the religious enforcers.

“We can expect widespread arrests after this … This will inevitably affect the other states,” she added.

A sense of liberation

In May last year, three transgender women contended in the Court of Appeal that Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 violates constitutional articles governing freedom of expression and gender discrimination.

Prior to the challenge, the three appellants had been repeatedly arrested and charged under the law in Seremban Shariah Court.

They were given, however, discharges not amounting to acquittals by the Shariah Court after the Court of Appeal decision in November last year, Thilaga said.

Manggis also related that since the Court of Appeal decision, several charges against Muslim transgenders have been dropped in Shariah courts across the country, such as in Pahang.

“Following the decision, there was a sense of liberation. A lot of people felt a bit more open to talk about gender identity issues … People can express and affirm their identities in the way they want to.

“It has seen the empowerment of the transgender community,” said Thilaga.

Negri Sembilan has since challenged the decision in the apex court, with its lawyer Tan Sri Muhd Shafee Abdullah arguing that the group of transgenders had used improper channels to file their bid and claimed the challenge had been premature.

If the Federal Court decides against accepting this argument, it will then continue to hear whether Section 66 is constitutional.

If, however, the apex court decides to accept Shafee’s argument today, then it is likely that the Court of Appeal’s previous landmark ruling will be thrown out.

Constitutional rights under question

The decision today also comes amid several court decisions that have worried human rights advocates.

Datuk Mohd Hishamudin Mohd Yunus, who headed the three-man Court of Appeal panel that delivered the landmark ruling on the transgender case, has since retired without making it into the Federal Court.

He told local daily Sunday Star in an interview last month that he had been recommended for a promotion in 2013, but it was rejected by Prime Minister Datuk Seri Najib Razak who did not agree with it.

Yesterday, Hishamudin joined G25, the group for retired Malay top civil servants who are vocal critics of creeping Islamisation and application of Shariah laws in the country.

Last week, the Court of Appeal reversed its own ruling on spontaneous public assemblies, making rally organisers and participants susceptible to be arrested and charged should they be part of what is deemed an illegal rally.

Meanwhile, the Federal Court also decided on Tuesday that the controversial British-enacted Sedition Act 1948 remains a constitutional and valid piece of legislation.

Manggis said a reversal in the Section 66 decision would return the community to a climate of fear since the community’s enshrined constitutional rights cannot be protected.

“Just by stepping out of the house, a Muslim transwoman would be considered as committing a crime. What more living our lives?” she asked.

“We would always be in a position of offence, except when we are at our own homes. How about our other rights?”

All eyes on Malaysia’s judiciary

Laws such as Section 66 have been allegedly used by state religious authorities to repeatedly arrest and harass transgenders solely because they don clothes deemed as “feminine”.

A report by international watchdog Human Rights Watch (HRW) released in September last year had chronicled atrocities allegedly committed by religious authorities against the community, including stripping them naked, sexual molestation, beatings, extorting money and sexual favours, and public humiliation on national television.

Human rights activists said any decision today will likely thrust Malaysia into the eyes of the global community, especially after Prime Minister Najib pledged in August that his administration will do its best to uphold human rights here, but only within the confines of Islam.

"The transgenders will continue to be persecuted and they will continue to be harassed simply because of who they are, something that they cannot change," said lawyer New Sin Yew, who is holding a watching brief for International Commission of Jurists (ICJ) for the case.

"It would be sending a signal that the court is not willing to intervene, is not willing to act when there are very clear human rights violations being perpetrated against the minorities. It will send a negative signal."

“I think the government will find that whatever the result of the Federal Court decision, this entire episode has resulted in greater pride and self-confidence of the transgender community to assert their rights and that will not change,” added Phil Robertson, the deputy director of Human Rights Watch’s Asia Division.

“There has been an awakening in the community, and no amount of repression will be able to dampen or restrict that new realisation that rights are for all, and what a local religious enforcer says is both wrong and unjust, and should not be tolerated.”

Muslim-majority Malaysia continues to reject the perceived rise in non-heterosexual activities, which it deems to be an assault against Islam together with growing calls for greater civil liberties.

The issue is compounded by the intermingling of politics and religion in a country where the latter has become a major platform from which to appeal for support.

Transgender activists estimated that there are around 60,000 Malaysian who identify as transgenders, with Malays making up 70 per cent of them.