Summary On 11 October the secular High Court in Seremban, Negeri Sembilan state, in Malaysia rejected a request to declare unconstitutional a Sharia law that prohibits “wearing women’s attire” or “posing as a woman” in that State. The four applicants are Muslim transgender women who have all been arrested under this law and contend that it violates their fundamental rights enshrined in the Malaysian Constitution, namely the prohibition of discrimination based on gender, freedom of expression, freedom of movement, and the rights to live with dignity, privacy, and to livelihood.
The Malaysian system is a dual-track system where secular law applies to the entire population, while the Muslim population, constituting about two thirds of the population, is furthermore subject to Sharia law. Penalties for cross-dressing differ throughout the country but in Negeri Sembilan state, where the case was heard, convicted offenders under section 66 of the Syariah Criminal Enactment 1992 may be sentenced to up to six months in prison, fined as much as 1000 ringgits ($325) or both.
The four litigants are make-up artists who have all been arrested for dressing as women and have all suffered from deep-seated discrimination, harassment and even violence because of their gender identity. All four women have been diagnosed with “gender identity disorder”, undergo hormone treatment, and go by feminine names in their daily lives. Nevertheless they have been banned from modifying their legal identification to recognise their gender identity and feminine names. This has an impact on their daily lives, as official documents are needed, for instance, in order to secure employment. It is also important to note that homosexual acts are banned not only for Muslims but for the whole population in Malaysia, punishable by caning and up to 20 years’ imprisonment.
The applicants argue that they cannot conform to Section 66 by virtue of their medical condition, without suffering psychological harm and trauma. The women all complain of harassment and a constant fear of prosecution as long as the law is in place. One of the applicants obtained a job in a bank where she was asked to cut her hair and dress as a man. She refused and has turned to supplementing her pay by working as a sex worker in order to maintain her female appearance. One woman claims she was groped when stopped by religious officers while another litigant says these officers have already arrested her three times, and she was punched in the face by an officer on one occasion.
The Negeri Sembilan High Court ruled that because the litigants are Muslim and were born male, they must adhere to the law as a part of Islamic teaching. The court dismissed the claim that the law is unconstitutional, discriminatory and a breach to fundamental rights and freedoms and ruled that Muslim transsexuals cannot be exempted from Shariah legal provisions.
This decision is deplorable as it amounts to saying that state-enacted Islamic law overrides fundamental liberties. This was the first attempt to overturn a Sharia law banning cross-dressing, and could therefore be used as precedent in other states and countries with similar regulations.
This decision follows a ruling from last year when another High Court rejected a bid by a transgender woman who had undergone a sex-change operation to change the name registered on her identity. The 25 year old former pharmaceutical assistant died weeks later, reportedly of heart problems.
These Malaysian High Court decisions are dangerous for transgender people, who are already an extremely vulnerable group in the Asia-Pacific region. With transgender people being discriminated against and finding it difficult to secure employment, many are turning to sex work, putting them at risk of violence and HIV/AIDS, for which transgender women in the region are extremely vulnerable.
This decision is currently not available online.
Candice Van Doosselaere is a volunteer at the HRLC.