PUTRAJAYA, May 22 — Transgender women have no choice but to wear feminine clothes to express their identity as part of the medical condition, gender identity disorder (GID), the Court of Appeal was told today.
In a constitutional review of a shariah law banning Muslim men from wearing women’s clothing, lawyers argued that their clients are affected by the condition for their whole lives, adding that the condition cannot be treated by medicine or psychological therapy.
“It is an attribute of nature that they cannot choose and cannot change… Can you penalise someone for something they cannot choose or change?” lawyer Aston Paiva asked the court.
Lawyers Aston Paiva and Fahri Azzat are representing three transgender clients who contend that Section 66 in Negri Sembilan’s Shariah Criminal Enactment 1992, which prohibits cross-gender attire, violates constitutional articles and do not apply to those diagnosed with gender identity disorder.
The transgender community is not only a much visible community worldwide, but also has historical roots since the pre-Islamic Malay kingdoms as courtiers, even in ancient Negri Sembilan, Aston said.
He argued that Section 66, which punishes a “victimless act”, has persecuted the transgender community who would be able to contribute to the society if they can keep their identity.
The Bar Council, represented by lawyers Syahredzan Johan and Farez Jinnah, was also at the court today given the public interest element of the case.
Together with the advocacy group Human Rights Watch, represented by lawyer Nizam Bashir, they appeared as amicus curiae or “friend of the court” — independent parties who can raise their points in court.
Syahredzan argued that any state-enacted law such as the Section 66, must be consistent with the Federal Constitution.
While the law in question is a religious enactment, it is still considered as secular law because it was passed by a state assembly which is a secular body.
Six civil societies including the Malaysian AIDS Council and PT Foundation; the Kuala Lumpur Women and Health Society, and Malaysian Mental Health Society; and the Malaysian Centre for Constitutionalism and Human Rights were observing parties also represented by lawyers at the court.
State legal advisor Iskandar Ali Dewa was lead counsel for the respondents which include the Negri Sembilan state government, state religious authority and its officers.
The respondents will reply when the proceedings, observed by a three-man bench chaired by Justice Datuk Mohd Hishammuddin Mohd Yunus, adjourn on July 17, 2014.
Lawyers for the three transgender applicants claimed that they are medically diagnosed with GID under the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, consistent with “the desire to dress as a female and be recognised as a female”.
They also claimed that the law is inconsistent with Article 8(2) and 10(1)(a) of the Federal Constitution which govern gender discrimination and freedom of expression respectively.
The three had raised the matter in the Seremban High Court, but lost when Justice Datuk Siti Mariah Ahmad ruled on October 11, 2012 that Section 66 excludes the transgender people from fundamental liberties under the Constitution.
The case also exemplifies the ongoing tussle between conservative Malaysia and its progressive side that is increasingly tolerant of the lesbian, gay, bisexual and transgender communities (LGBT).
Muslim-majority Malaysia continues to reject the perceived rise in LGBT activity, which together with growing calls for greater civil liberties, they deem to be an assault against Islam.
“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.