An Unprecedented Advance for Trans Rights in Malaysia

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In a landmark ruling, Malaysia’s Putrajaya Court of Appeal ruled on Friday (Nov. 7) that it is unconstitutional for the state of Negeri Sembilan to criminalize transgender individuals for "cross dressing."

Citing articles of the Constitution of Malaysia that protect fundamental liberties, including equality, freedom from discrimination and freedom of expression, Judge Mohd Hishamudin Yunus of the federal Putrajaya Court of Appeal ruled that Article 66 of the the Negeri Sembilan Syariah Criminal Enactment (1992) is “invalid as being unconstitutional. It is inconsistent with Articles 5(1), 8(1) and (2), 9(2) and 10(1) of the federal constitution,”

"Today's ruling sets a critical precedent for recognizing and affirming the human rights—and lives—of trans women in Malaysia," said Grace Poore, regional program coordinator for Asia at IGLHRC. "Long the subject of state-sanctioned violence and persecution, trans Malaysians now have a ruling that recognizes the federal constitution supersedes local laws, particularly when these laws blatantly contravene the protections enshrined in the constitution.”

In the ruling, Judge Yunus writes Section 66 “deprives the appellants of their right to live with dignity,” and “prohibits” transgender people from “moving in public places to reach their respective places of work.” Further, he notes that trans people “could not dress in public in the way that is natural to them,” that “they will commit the crime of offending section 66 the very moment they leave their homes” and be subject to “arrest, detention and prosecution” which is “degrading, oppressive and inhuman.”

In response to a submission by Encik Iskandar Ali, State Legal Advisor of Negeri Sembilan which asserts section 66 “is not prejudicial to the appellants as they are persons of unsound mind,” Judge Yunus writes “in the absence of medical evidence, it is absurd and insulting to suggest that the appellants and other transgender [individuals] are persons of unsound mind.”

State legislatures in Malaysia are empowered to legislate on matters relating to Islam in their jurisdictions. In the majority of Malaysia’s 13 states and the capital, same-sex relations are punishable under sharia law. Convictions carry prison sentences from six months to three years, fines of up to $1,500 and beatings with a cane. This is also true for non-conforming gender expression (such as cross-dressing). Trans individuals who are convicted are sometimes forced to attend Islamic religious classes and promise to stop being trans.

For a breakdown of sharia laws criminalizing homosexuality, lesbianism and non-conforming gender in Malaysia, see table (pages 37-42) of the report On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia

The case was brought before the Putrajaya Appeals Court by three Muslim and ethnic Malay transwomen, Muhamad Juzaili Mohammad Khamis, 26; Shukur Jani, 27; and Wan Fairol Wan Ismail, 29. They were arrested by Islamic religious officers in 2010 for “wearing women’s clothes, using makeup and behaving like women.” The organization Justice for Sisters led national advocacy in the court challenge and provided legal support.

The International Gay and Lesbian Human Rights Commission (IGLHRC) and its partner organization, KRYSS in a groundbreaking report found that trans women across religious backgrounds reported police harassment, and verbal and physical humiliation by state religious officers. They also reported repeated arrests and convictions, jail time and fines. In addition, trans women were jailed in facilities for men, where they faced abuse from officers and other inmates, including sexual violence.

The three trans women at the center of the court ruling had been arrested, charged and convicted multiple times. Muhamad Juzaili was detained four times in 2010, charged three times, convicted twice and fined; Shukur Jani and Wan Fairol were each detained twice.

Islamic Religious Department officials could appeal the decision, although there was no indication of plans to do so.

For more on trans rights and violence against lesbians, bisexual women and trans people on Asia, read our report: Violence through the Lens of LBT People.