Transgenders take fight to Court of Appeal

Three transgenders from Negri Sembilan are challenging a law at the Putrajaya Court of Appeal on May 22 prohibiting them from expressing their gender identity.

According to a posting on the Human Rights Watch website, the trio are asking the court to strike down a state law that “prohibits any male person who in any public place wears a woman’s attire or poses as a woman,” – this law has allegedly been used repeatedly to arrest transgender women.

All three petitioners, who identify themselves as female but are described as “male” on their national identification cards, have been arrested solely because they dress in attire that state religious officials deem to be “female.”

According to Neela Ghoshal, who is a senior researcher on lesbian, gay, bisexual and transgender rights (LGBT) at Human Rights Watch, transgender women in Malaysia faced a daily risk of arrest just for being themselves.

“The government shouldn’t be harassing and punishing transgender people just for peacefully going about their lives,” she said.

Based on a research conducted by the Human Rights Watch this January in four Malaysian states and Kuala Lumpur it was revealed that state religious department officials and police have subjected transgender women to various abuses, including sexual and physical assault, extortion, and violations of privacy rights.

Most of those arrested receive hefty fines and are forced into “counseling” sessions where officials from the state Islamic Religious Department lecture them on “being a man,” while a few have been sent to prison.

The applicants’ lawyer, Aston Paiva told Human Rights Watch that people were being criminalised

because of something they did not choose and cannot change.

“It’s akin to penalising someone for the color of their skin. It’s a civil rights issue. It’s about harming a person’s dignity, and devaluing and degrading them because of who they are,” he said.

The applicants first challenged the constitutionality of the state laws with the Negeri Sembilan High Court in February 2011.

The judge rejected their application in October 2012 on the grounds that the petitioners, as Muslims, were bound by state Sharia law and that constitutional provisions protecting fundamental liberties were therefore irrelevant.

Nisha Ayub of Justice for Sisters, a transgender activist group, said this was a very important case for all transgender women in Malaysia.

“The court has the chance to make clear that we are entitled to the same constitutional rights as other Malaysians.”

Transgender women told Human Rights Watch that police were sometimes directly involved in arrests, in some cases based on a vague provision in the federal criminal code that prohibits “indecent offenses.”

“The authorities’ abuses against transgender women are an assault on human dignity and violate their basic rights.

“It’s horrifying to hear about religious department officials stripping transgender women in front of cameras, poking and prodding at their genitals, and punching them,” said Ghoshal.

An official from the federal Department of Islamic Development Malaysia (JAKIM), who spoke to Human Rights Watch on the condition of anonymity, acknowledged that arresting or punishing anyone is not going to change them.

“However, the department has remained silent on the abuses carried out by state religious departments,”.

A Health Ministry report, submitted as part of an affidavit by a non-governmental health organisation in Malaysia, stated that laws prohibiting cross-dressing had a negative impact on the fight against HIV/AIDS by driving underground the transgender community, considered among the most at-risk population for HIV infection.

If the appeal is denied, the applicants could take their case to the Federal Court, the country’s highest appeals court.

“If the Court of Appeal hearing is successful, and the applicants are allowed to be who they are, it will be a triumph for citizens of Malaysia to actually see justice being served,” said Ratna Osman, executive director of Sisters in Islam.

“Such a decision would be in accordance with the Constitution, and also the basic Islamic principles to uphold human dignity.”