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Thursday, August 13, 2015

Harassment over cross-dressing leads to landmark legal challenge

It is not over for the three transgenders in Negri Sembilan as the state seeks to challenge a ruling by the Court of Appeal saying an enactment punishing cross-dressers is unconstitutional. – The Malaysian Insider filepic, August 13, 2015.It is not over for the three transgenders in Negri Sembilan as the state seeks to challenge a ruling by the Court of Appeal saying an enactment punishing cross-dressers is unconstitutional. – The Malaysian Insider filepic, August 13, 2015.Repeated arrests and detention by religious authorities finally prompted three transgenders in Negri Sembilan to pick up courage and challenge a law that penalised Muslims for cross-dressing, a spokesperson for the marginalised group said.
S. Thilaga of Justice for Sisters, said transgenders were often violently and arbitrarily arrested each time they were out in public.
"While in detention, they were physically, emotionally and sexually abused," Thilaga told The Malaysian Insider why the three, who work as make-up artists, had sought legal redress.
They were granted victory when the Court of Appeal in November last year ruled that a provision in Negri Sembilan's religious enactment, which punished cross-dressing by Muslims, was unconstitutional.
Today, in the Federal Court, the state government and state religious council will appeal to reverse this ruling.
The outcome of their appeal will determine whether Section 66 of the Negri Sembilan Shariah Criminal Enactment contravene Articles 5, 8, 9 and 10 of the Federal Constitution.
These articles pertain to a person's liberty, equality, freedom of movement and freedom of expression.
Thilaga said besides Negri Sembilan, it was an offence for a male Muslims to wear a woman's dress in Kedah, Perlis, Sabah and Kelantan.
In the other nine states, it is an offence if a male Muslim wears a dress or poses as a woman specifically for an immoral purpose.
"The three had a legitimate reason to file the suit and we are glad that the Court of Appeal struck down the Negri Sembilan enactment as unconstitutional," Thilaga said.
There are an estimated 10,000 and 15,000 transgenders in Malaysia.
Thilaga said many in this community had experienced being detained by police for no reasons when going about their daily life.
Lawyer Fahri Azzat said it was unreasonable to punish cross-dressers for other reasons than on grounds of immorality.
"Surely, they cannot be punished for being in a female or male attire to take part in a fancy dress competition or when walking along the street."
On November 7, 2014, Court of Appeal judge Datuk Mohd Hishamudin Mohd Yunus, who led a three-member bench, declared that Section 66 of the state's religious enactment violated provisions in the constitution.
Hishamuddin, who delivered the unanimous ruling had declared that Section 66 was void as it violated the constitutional right of freedom of expression, movement and the right to live in dignity and equality.
The judge held that the state religious authorities had failed to prove Islam's position on how those who suffered from gender identity disorder (GID) should dress.
He said the three Muslims in the case were not "normal males" as they suffered from the disorder, which had been confirmed through psychiatric and psychological tests.
The religious authorities did not rebut the medical evidence, the judge said in his written judgment.
The state religious authorities had filed an affidavit by the Negri Sembilan mufti, who said Section 66, which prohibited a male from dressing as a woman, was a precept of Islam.
The mufti's affidavit was filed in response to findings by sociologist Professor Teh Yik Koon, who had given supporting evidence for the disorder suffered by the trio, in addition to explanations on how Section 66 had adverse effects on transsexuals and on Malaysian society.
Juzaili, Shukor and Wan Fairol had in 2013 gone to the High Court to declare Section 66 as unconstitutional but their judicial review application was dismissed.
Without medical evidence to prove insanity, the appellate court also rubbished a claim by state government that transwomen were of unsound mind.
"Our answer to this is that in the absence of medical evidence, it is absurd and insulting to suggest that the appellants and other transmen and women are persons of unsound mind," Hishamudin had said.
The other judges on the bench were Datuk Aziah Ali and Datuk Lim Yee Lan.
- TMI

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