KUALA LUMPUR (May 14): The Court of Appeal in Putrajaya is to hear a groundbreaking suit filed by transgender women in Malaysia challenging a law that prohibits them from expressing their gender identity.
The Court of Appeal is expected to hear a challenge to the constitutionality of the law on May 22, Human Rights Watch (HRW) said in a statement on its website May 13.
HRW said the three transgender women from the state of Negri Sembilan were 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,” and which has been used repeatedly to arrest transgender women.
HRW said all three petitioners, who identify as female but were described as “male” on their national identification cards, had been arrested solely because they dressed in attire that state religious officials deemed to be “female.”
HRW senior researcher Neela Ghoshal said that under discriminatory state laws, 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.
Ghoshal said HRW research carried out in January in four Malaysian states and the federal territory of Kuala Lumpur found that state religious department officials and police had subjected transgender women to various abuses, including sexual and physical assault, extortion, and violations of privacy rights.
Most of those arrested received hefty fines and were forced into “counseling” sessions where officials from the state Islamic Religious Department lectured them on “being a man,” while a few were sent to prison, she said.
HRW said that Muslims, who according to government statistics made up about 60% of Malaysia’s population, were subject to state-level Sharia (Islamic law) offence ordinances, in addition to the federal criminal law.
“Each state’s Islamic religious department enforces the Sharia laws.
“Sharia law in all 13 Malaysian states prohibits Muslim “men” from dressing up as “women.” The laws do not define what constitutes a man, nor what qualifies as women’s attire,” said HRW.
HRW said some states prohibited wearing women’s attire or “posing as a woman” only when it was for “immoral purposes,” while in other states the ban was absolute.
It added that penalties varied by state: in Negeri Sembilan, convicted offenders under section 66 of the Syariah Criminal Enactment 1992 may be sentenced to up to six months in prison and fined up to RM1,000.
Three states also criminalise “female person posing as man,” although HRW said it had not documented any case in which transgender men have been arrested under these laws.
HRW cited the applicants’ lawyer Aston Paiva as saying that people were being criminalised because of something they did not choose and could not change.
“It is akin to penalizing someone for the colour of their skin. It is a civil rights issue. It’s about harming a person’s dignity, and devaluing and degrading them because of who they are,” it quoted Paiva as saying.
HRW said the applicants first challenged the constitutionality of the state laws at the Negri Sembilan High Court in February 2011.
The High Court judge rejected their application in October 2012 on grounds that the petitioners, as Muslims, were bound by state Sharia law and that constitutional provisions protecting fundamental liberties were therefore irrelevant.
HRW also quoted Nisha Ayub of transgender activist group Justice for Sisters as saying that the case 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,” HRW quoted Ayub as saying.
HRW said the national Registration Department routinely rejected transgender women’s applications to legally change their gender, leaving Muslim transgender women exposed to repeated arrests.
“One woman told Human Rights Watch she had been arrested over 20 times.
“Application of vague laws that fail to define what constitutes women’s attire has resulted in some transgender women being arrested simply on the basis of their hairstyle or – as in the case of transgender women who are undergoing hormone replacement therapy – because they have breasts, even if they are wearing clothing deemed masculine,” said HRW.
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