KUALA LUMPUR, Dec 9 — A retired Court of Appeal judge today said he would have decided differently if the transgenders that challenged a state law against cross-dressing were not suffering from a medical disorder.

Datuk Mohd Hishamudin Mohd Yunus, 66, confirmed that the situation would have been different if the transgenders felt that they were in their natural state, instead of having a medical condition.

“I would say that they would not be entitled to the benefit of the protection of the Constitution, I would think so.

“They have to be medically certified by a doctor that they were sufferers of that particular Gender Identity Disorder. Yes, my decision would be different, ya, would have been different,” he said during a question and answer session in his public lecture here.

Mohd Hishamudin had sat on a three-member bench that unanimously ruled in 2014 that a Negri Sembilan Shariah law criminalising cross-dressing was unconstitutional.

In the landmark decision on November 7, 2014, the Court of Appeal found the Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 to be invalid and inconsistent with the Federal Constitution’s Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a).

Section 66 outlaws any Muslim man who “wears a woman attire and poses as a woman”, with the punishment of a fine not exceeding RM1,000 or jail of not more than six months or both.

On October 8 this year, the Federal Court overturned the appellate court’s decision, which Mohd Hishamudin asserted to be on a technicality.

“In allowing the appeal, the Federal Court had unwittingly allowed an unjust law to remain in the statute book of the state of Negri Sembilan,” he said.

He also said the Negri Sembilan government could have opted to amend its law to match constitutional requirements instead of appealing.

This action would have shown the administration’s respect of the Federal Constitution and the rights of the three Muslim applicants that were suffering from Gender Identity Disorder (GID), he said.

“It would also be an act of compassion on the part of the state towards sufferers of GID, an act that is in line with Islamic religion,” he added.

He expressed hope that the Negri Sembilan government would amend Section 66 to exclude Muslim individuals in the state who suffer GID from the offence.

Earlier in his lecture, Mohd Hishamudin had said medical evidence in the courts showed that the three applicants were suffering from the incurable and permanent life-long condition, a point which he said was not disputed by the Negri Sembilan government.

The public law lecture titled “The Role of the Judiciary in Upholding Fundamental Liberties” was jointly organised by the Universiti Malaya’s Student Representative Council and Law Society in conjunction with Human Rights Day.