A 2014 Malaysian landmark ruling in favor of trans rights has come under threat. The ruling recognized the rights of mak nyah (male to female gender non-conforming persons) in Negeri Sembilan (one of Malaysia’s 13 states) to cross dress and appear as women in public without being criminalized. Today, the Federal Court of Malaysia granted the state government of Negeri Sembilan the right to appeal the ruling, opening the possibility that it could be reversed.
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(Kuala Lumpur, Malaysia) January 27, 2015 – A 2014 Malaysian landmark ruling in favor of trans rights has come under threat. The ruling recognized the rights of mak nyah (male to female gender non-conforming persons) in Negeri Sembilan (one of Malaysia’s 13 states) to cross dress and appear as women in public without being criminalized. Today, the Federal Court of Malaysia granted the state government of Negeri Sembilan the right to appeal the ruling, opening the possibility that it could be reversed.
The original ruling challenged the application of the state’s syriah law Article 66 to trans women. Article 66 reads: any male person, who in any public place, wears a woman’s attire and poses as a woman shall be guilty of an offense and shall on conviction be liable for a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding one year or to both.
On November 7, 2014, Malaysia’s Court of Appeals found that Article 66 unfairly penalized Muslim men for having gender identity disorder. The Court declared Article 66 invalid and inconsistent with the Malaysian Constitution for violating Articles 5(1), 8 (1), 8(2), 9(2), and 10(1) of the Constitution, which guarantee Malaysians the right to dignity, equality before the law and equal protection of the law, freedom of movement, and freedom of speech and expression.
In the court proceedings, the Negeri Sembilan government argued that Islamic law trumps the fundamental liberties of Muslims and claimed that a secular court had no jurisdiction to nullify Islamic law. In its leave of appeal to the Federal Court, the government further argued that contrary to the Appellate Court’s ruling, Article 66 does not infringe the Malaysian Constitution because in Malaysia the enforcement of Islamic law on Muslim citizens is decided independently by each state.
In today’s decision, the Federal Court repeatedly emphasized that the leave to appeal the 2014 decision can only focus on whether the Appellate Court was right in ruling that Article 66 violated the federal Constitution, and not whether the Appellate Court had jurisdiction to make that decision in the first place. In other words, the Federal Court will not hear arguments to challenge the hierarchy of laws that places syariah law over the federal Constitution—the case will need to focus on the legitimacy of criminalizing cross-dressing as a matter of fundamental rights. No hearing date for the appeal has been set yet.
The impact of the November 2014 ruling has already been felt in the trans community. One of the transwomen at the center of the case said that because of the 2014 decision by the Court of Appeal, “I no longer live in constant fear of arrest. I can now express myself in a way that is most natural to me. The decision of the Court of Appeal has given me inner peace and personal happiness.” She added, “I am very disappointed that the state government of Negeri Sembilan has not conducted an investigation or instituted any disciplinary action against any of the [religious department] officers who put me and others like me through cruel, degrading and inhumane treatment during our previous arrests and detention.”
Grace Poore, Regional Program Coordinator for Asia at the International Gay and Lesbian Human Rights Commission (IGLHRC) said, “Ironically, the state of Negeri Sembilan also claimed in their leave application to the Federal Court that individuals in Negeri Sembilan with gender identity disorder should bring their grievances before the state syariah court and not to the secular ‘ordinary’ court. In reality, many syariah judges end up revictimizing individuals instead of granting them relief from violence, including violence by police and religious department officers. Clearly the Negeri Sembilan government was not talking about redressing violations suffered by trans people by asking them to seek justice from the syariah court. They are more concerned with the religious court’s supremacy of jurisdiction over a Muslim person’s life, humanity, dignity.”
A report by IGLHRC and its partner organization, KRYSS on violence experienced by transgender people in Malaysia states that Islamic religious agencies regularly raid premises where transwomen live and that they frequent, resulting in arrests and prosecution of Muslim transgender women for breaking laws on cross-dressing. Muslim transwomen are subjected to repeated jail time and fines by syariah courts, particularly if they are of lower economic backgrounds. During arrests by religious officers or police officers and while in detention at police stations and in religious agencies, trans women reported being humiliated and physically and sexually assaulted by the officers detaining them.
Poore said, “Perhaps this case needs to challenge all syariah courts in Malaysia to rethink how they treat victims of violence and discrimination. Fortunately, it looks like the Federal Court is adamant about the constitutional rights to dignity applying to all, regardless of religion.”