KUALA LUMPUR, MALAYSIA — A Malaysian court on Friday gave transgender Muslims the right to cross-dress in a landmark decision overturning an Islamic law ban that could trigger similar challenges.
Muslim-majority Malaysia represents itself as the global face of moderate Islam, but at home it has experienced a gradual Islamisation that makes minority groups worry their rights could be eroded in a clash between Islamic law and the constitution.
Several cases challenging Malaysia’s religious law in civil courts have been quashed in recent years, despite guarantees in the constitution on the freedom of expression, religion and gender equality.
On Friday, the Court of Appeal said the law against crossdressing by Muslim men contravened the constitution and did not take account of men affected by gender identity disorder. The law and its punishments were “degrading, oppressive and inhuman,” the three judges added.
Location of Negeri Sambilan in Malaysia. (Map courtesy of Wikimedia Commons)
The provision, Section 66 of sharia law in the state of Negeri Sembilan, provides for a fine and a prison sentence of up to six months for any Muslim man who “wears a woman attire and poses as a woman.”
BuzzFeed noted, “The ruling only strikes down the provision in the state of Negeri Sembilan, but could be used as legal precedent to challenge similar provisions in other Malaysian states if it is allowed to stand. Government lawyers have the option of appealing the ruling to a higher court.”
The case involved “three transgender clients who challenged the law after they were repeatedly charged under Section 66. The appellants were medically diagnosed with GID [Gender Identity Disorder] under the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM IV), consistent with “the desire to dress as a female and be recognised as a female,” according to Malay Mail Online.
More specifically, the three transwomen, each of them Muslim and ethnic Malay — Muhamad Juzaili Mohammad Khamis, 26; Shukur Jani, 27; and Wan Fairol Wan Ismail, 29 — had been arrested, charged and convicted multiple times for “wearing women’s clothes, using makeup and behaving like women,” the International Gay and Lesbian Human Rights Commission (IGLHRC) said.
“The fight will still be there… (but) at least now the trans community know that they have their rights to challenge the law,” she said. “It will encourage them to come out rather than being oppressed.”
The trans rights organization Justice for Sisters worked on the case.
Muhamad Juzaili was detained four times in 2010, charged three times, convicted twice and fined; Shukur Jani and Wan Fairol were each detained twice.
Justice Mohammed Hishamuddin Mohammed Yunus stated that Section 66 was degrading, oppressive, inhuman and deprived people of their dignity.
He wrote that 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 stated 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,” IGLHRC reported.
Transgender activists estimate that about 60,000 Malaysians consider themselves to be transgenders, Malay Mail said.
The role of Islam in Malaysia, especially with regard to non-Muslim Malaysians, remains contentious. As the Jakarta Globe stated:
Last year, Malaysia’s highest court ruled that a Catholic newspaper may not use the word “Allah”, the Arabic word for “God”, for Malay-speaking congregants.
Police and religious authorities drew fire this year for bold moves that involved confiscating Bibles that used the word “Allah” to ignoring court orders about child custody between Muslim and non-Muslim couples.
Discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons remains a persistent problem that is reinforced by government policy. In 2012, Prime Minister Najib declared that LGBT activities do not “have a place in the country.”
Tan Sri Muhyiddin Yassin (Photo courtesy of afterschool.my)
In April 2013, Deputy Prime Minister Muhyiddin Yassin accused LGBT rights activists of “poisoning” the minds of Muslims with “deviant practices.” The Malaysian government led efforts to ensure that LGBT rights were excluded from the ASEAN Human Rights Declaration adopted in November 2012.
Police regularly arrest transgender persons, especially Muslims who are considered to be violating Sharia law provisions against cross-dressing, ridicule and humiliate them, and jail them in lock-ups where they are subject to physical and sexual abuse by police staff and male inmates.
