KUALA LUMPUR, Nov 7 ― Muslim transgenders will find out today if they can finally step out of their homes in any attire they desire without fear of getting locked up when the Court of Appeal decides on the constitutionality of a Shariah law that prohibits them from doing so.
The legal challenge was mounted by three transgenders who contend that Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992, which prohibits cross-gender attire, violates constitutional articles governing freedom of expression and gender discrimination.
The decision, however, whichever way it goes, will not likely spell an end to the arduous struggle faced by Muslim transgenders in particular, whose choice of sexual identities have forced them into years of being hunted, scorned and abused by the country’s religious authorities.
The Negri Sembilan enactment is, after all, one of many such Shariah laws in Muslim-majority Malaysia that criminalises cross-dressing.
But to many Muslim transgenders here, a court ruling in their favour would bring them one step closer to their desired life of freedom, reminiscent of their glory days in the 1980s when their small but growing community was still free to express themselves in public.
According to several transwomen, life was never this “scary” for the community back then.
Khartini Slamah, 52, said there were already as many as 5,000 transwomen living in Kuala Lumpur in the early 1980s, most of them working as mak andam (bridal makeup artists) or cooks.
“In the early days, the most popular place for mak nyah to hang out was near the old Umno building, and in the 1990s Dataran Merdeka,” said Khartini. The Umno building she was referring to is where Bank Muamalat now stands on Jalan Tuanku Abdul Rahman.
The local community of transwomen here had in the 1980s coined the term “Mak Nyah” to identify themselves and even banded together under the Federal Territory Mak Nyah Association in 1987, led by transgender actress Mimi Zarina, now 67, and Khartini as secretary.
A report by global watchdog Human Rights Watch (HRW) released in September titled “I am Scared to be a Woman” also suggested that the community was left to its own devices back then.
The police, the report noted, was “good to them and accepted them as they were”.
“In the 1980s they only used civil laws … Not much problem at that time. Not much violence happened,” Sulastri Ariffin, a 53-year-old transwoman who started her activism work in 1990s, told Malay Mail Online.
After fatwa, end of sex change surgeries
In the 1980s, sex reassignment surgeries (SRS) were still permitted here. There was even a team of doctors and psychologists in University of Malaya (UM) that was dedicated to performing the SRS, having successfully conducted at least six.
However, it all changed after a fatwa, or religious edict from the National Fatwa Council was issued against the SRS. And subsequently between 1985 and 2012, every state and the Federal Territory had enacted Shariah laws criminalising “a man posing as a woman”.
Although they were funded by small grants from the Social Welfare Department, the Mak Nyah Association itself only lasted for three years, and according to Khartini, the group was eventually forced to shut down in 1990 following intervention by religious authorities.
Khartini recalled the roundtable discussion before the fatwa was issued where the UM team explained to religious authorities what an SRS operation entailed, the details of which left the latter visibly horrified.
“How sex change was done in the early days was not as technologically advanced as today. It was very scary, they ran out, all of them and vomited … From there, they thought we were harming our bodies,” related Khartini.
In the HRW report, Dr Khairuddin Yusuf who was one of the doctors in the UM team, was quoted saying the the authorities couldn’t understand the science behind the SRS procedures.
“We explained the science behind it to them ... Our languages were totally different. They didn’t get the language of science,” he said.
“I understood what Galileo was facing. Science challenges conventional wisdom,” he added, referring to the 15th century Italian scientist who was persecuted by the Catholic Church for arguing that the Earth revolves around the Sun rather than the other way round.
The team ceased operations in 1982 after the fatwa was declared, inadvertently affecting not only Muslim transgenders, but also non-Muslim ones.
“They did not explain their reasoning ... [Our reasoning] was not accepted, so I closed the services,” said Dr Khairuddin.
Since then, transgenders in Malaysia could not perform SRS locally, while those with a little bit of money saved ventured instead to Thailand, with mixed results.
“Sex change now is not easy. They have to go to Thailand which is expensive. There are no pre and post-counselling,” said Khartini, explaining that the UM team used to provide counselling and hormone supplies for two years to ease transwomen through a transition period.
How Islam views transgenders
Khartini said life as transwomen, especially Muslim ones, became more oppressive from 1995 onwards as religious authorities regularly conducted raids and subjected them to verbal abuse, usually questioning their faith in Islam.
The HRW report had touched on some of these alleged atrocities in its interview with 42 transwomen and three transmen, and noted how the religious authorities would strip some of them naked, sexually molest them, beat them, extort money and sexual favours from them and even publicly humiliate them on national television.
“In the early days, they would shave the head of every mak nyah bald. I think the reason why they did was so we would not be involved anymore,” said Khartini.
Unlike homosexuality, Quranic texts do not mention transgenderism, and Muslims who are opposed to it cites a hadith, or a saying of Prophet Muhammad, cursing men and women who do not dress according to their prescribed gender roles.
Another hadith also prohibits men from wearing silk and gold, as they are deemed as feminine and exclusive to women.
Historically, transgenders have always been visible and had even played important roles in the Malay archipelago ― serving as shamans, royal courtiers, and revered performers between the 19th and 20th centuries.
Anthropologist Michael Peletz in his book “Gender Pluralism: Southeast Asia Since Early Modern Times”, noted from field works in 1970s and 1980s that Malays had still “exhibited considerable tolerance and respect” for transgenders back then.
The HRW report suggested that the politicisation of Islam had partly resulted in an increasingly vitriolic treatment of the community, culminating in a speech by Prime Minister Datuk Seri Najib Razak in May this year, vowing against allowing Muslims to engage in “queer activities”.
Today, under Shariah laws, transwomen can be found guilty for cross-dressing the moment they step out of their homes, with fines ranging from RM1,000 to RM5,000, and imprisonment from six months to three years.
The future of transgender rights in Malaysia
However, not all is gloomier these days. Some transwomen concede that the local community is now more aware of their rights, although that has come at a cost of a bigger crackdown by the religious authorities.
“Compared to back then, I like it before than now. Now the louder mak nyah voice out our rights, the more they oppress us. That’s the reality,” Khartini claimed.
The increase in awareness can be attributed to rights group Justice for Sisters (JFS), which shifted the focus of activism away from HIV and AIDS to the community’s legal rights, in addition to launching the “I AM YOU: Be a Trans Ally” campaign to tell their marginalised voices.
“When it comes to rights, a lot of trans people do not know their rights … When I interviewed some of the senior trans, they didn’t face much issues compared to now, so a lot of them didn’t even want to know about rights,” said Nisha Ayub, a trans activist with JFS who is in her thirties.
“The [issue with] trans community is not about HIV and AIDS, it’s not about education, but the issue is about the law … After our third year, we tend to see more trans are interested to be part of our workshops, sessions and talks.”
The JFS is aiding the three transwomen in today’s legal challenge, scheduled for decision at the Court of Appeal in Putrajaya this morning.
Muslim-majority Malaysia continues to reject the perceived rise in queer 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.
“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.