PUTRAJAYA, May 22 — Muslim transgenders will learn today if they have the right to sartorially express their gender identity when the Court of Appeal weighs the constitutionality of a shariah law banning men from donning women’s clothing.
The challenge by three transgenders contend that Section 66 in Negri Sembilan’s Shariah Criminal Enactment 1992, which prohibits cross-gender attire, violates constitutional articles governing freedom of expression and gender discrimination.
“Today is not just a crucial day for Muslim transgendered women, but it is a crucial day for all Malaysians … Today will also reflect the Malaysian stand on human rights and equality for all,” Nisha Ayub of Justice for Sisters (JFS) told The Malay Mail Online.
JFS is a grassroots campaign to raise public awareness about issues surrounding violence and persecution against the transgender community.
According to Nisha, the challenge was also made on the basis of freedoms of movement and speech, rights to health and work, and personal liberty, which apply to everyone in Malaysia and not just the transgender community.
Lawyers of the three transgender applicants also contend that they are medically diagnosed with Gender Identity Disorder (GID) under the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV-TR), consistent with “the desire to dress as a female and be recognised as a female”.
The lawyers argue that applying the law on crossdressing on the transgender community as “akin to penalising someone for the colour of their skin.”
Laws such as Section 66 of Negri Sembilan’s Shariah Criminal Enactment are allegedly used by state religious authorities to repeatedly arrest and harass transgenders solely because they don clothes deemed as “feminine”.
According to Human Rights Watch, alleged abuses against the group include sexual and physical assault as well as extortion after arbitrary detention.
The three applicants were arrested and charged in Seremban Shariah Court with a fourth transgender over the offence, prior to the current challenge. The fourth later declined to proceed.
The group previously raised the matter in the Seremban High Court of Seremban, but lost when Justice Datuk Siti Mariah Ahmad ruled on October 11, 2012 that Section 66 excludes the transgender’s fundamental liberties under the Constitution.
If they are unsuccessful today, they will have the option to appeal to the Federal Court, but have said they are unlikely to do so due to the exorbitant cost.
And success in today’s challenge does not necessarily mean an end to the discrimination.
Besides Negri Sembilan’s Section 66, other states’ Shariah criminal enactments also have provisions that give religious authorities the right to prosecute the trans community for “cross-dressing”.
Penalties differ for those found guilty, with fines ranging from RM1,000 to RM5,000, and imprisonment from six months to three years.
The case also exemplifies the ongoing tussle between conservative Malaysia and its progressive side that is increasingly tolerant of the non-heterosexual orientations of the lesbian, gay, bisexual and transgender (LGBT) persuasion.
Muslim-majority Malaysia continues to reject the perceived rise in LGBT activity, which they deem 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.
Last week, Prime Minister Datuk Seri Najib Razak said that Islam is now being tested by new threats under the guise of humanism, secularism, liberalism and human rights.
But Najib followed this up days later to say Malaysians “believe in human rights, and subscribe to the philosophy, concepts and norms of the Universal Declaration on Human Rights”.
“Transwomen” or “transgender” are terms used to refer to those who were born male but associate themselves with the female identity, and has nothing to do with sexual preferences.