Global human rights organisation Human Rights Watch notes that transgender is a term for anyone whose sex assigned to them at birth do not conform to their lived or perceived gender, which is a gender they are more comfortable in expressing.
1. Unclear laws for gender change
Malaysian laws do not directly allow for transgenders to have their gender markers legally changed on their identification cards or passports. Judges in Malaysia will use their discretion to rule cases that involve transgenders applying for alteration of the sex marker on their MyKads. In 2005, two cases of the same nature received different judgements. Wong Chiou Yong’s application was denied, but in J.G versus the National Registration Department, the request was allowed. There was no mention of the option to change a gender field under the Birth and Deaths Registration Act 1957, and while corrections were allowed under the National Registration Act 1959, no details were given as to what detail people can alter on their MyKad. On whether transgenders can change their name or gender markers, it was up to the courts to interpret this law.
2. Muslim transgenders face Syariah law penalties
Under most enactments under Syariah laws, men are not allowed to dress as women, this applies to some states of Malaysia. In 1982, the National Fatwa Council prohibited Muslims from undergoing sex reassignment surgery (SRS) and Muslim medical institutions from providing such operations.
Transgender men face issues too as seven states had fatwas or decrees issued against ‘pengkid’, a term to describe tomboys or masculine women. These decrees state that women who have masculine appearance or male sexual instincts are not allowed under Islam.
Added to this legal challenge, under Section 28 of the Syariah Criminal Offences Act 1997, Muslim transgenders can be charged for ‘immoral behaviour’. If found guilty, they are fined no more than RM1,000 or be jailed for no longer than a year. Or face both sentences.
But, a recent landmark court decision may open the way for change in the legal status of Muslim transgenders. Last November’s ruling in Negeri Sembilan allowed men to dress as women, as the Court of Appeal ruled that it was unconstitutional to penalise Muslim men who were suffering from a medical condition called gender identity disorder.
3. Non-muslim transgenders face complications too
We learnt from a Human Rights Watch report on transgenders that although non-Muslims are free from the Syariah law jurisdiction, they face other obstacles such as having difficulties finding a medical institution to help them with sex reassignment surgeries. They too can be charged under civil law, under Section 21 of the Minor Offences Act 1955. They can be penalised for ‘indecent behaviour’ and be fined from RM25 to RM50. Since there is no clear definition of what constitutes indecent behaviour, it is up to the police to decide what indecent means.
4. Getting married
Same sex unions are not allow under civil law or Syariah law in Malaysia, a country where sodomy is illegal. In 2005, the issues of transgender marriage in Malaysia was brought up when Chinese transgender Jessie Chung married Joshua Beh in Kuching, Sarawak. Chung was born male, and went through three surgeries to become a woman. The authorities declared their union invalid, and some Christian groups denounced it. But the couple went ahead with their ceremony, getting their union blessed by three pastors in front of an audience of 800 people.
5. Festivals banned
Along with the laundry list of legal obstacles facing this community, campaigns and public events featuring the lesbian, gay and transgender communities were recently prohibited. Seksualiti Merdeka or the Sexuality Independence festival was banned by the police in 2011, because it constituted a ‘threat to public order.’ The festival went ahead in 2008 and 2009, but was stopped in 2011. Workshops, talks, musical and theatre performances on the diversity of this community were planned to educate the public and celebrate the rights of these groups.
6. Facing problems getting work
We spoke to local NGO Justice for Sisters who pointed out that transgenders are often reduced to details about their sex while their qualifications, capabilities and capacity become irrelevant. This makes it difficult for them to find work. Transgenders also face sexual harassment and sexism at the workplace, including restriction to use toilet that reflects their gender. The NGO told us that the laws that criminalise transgenders worsens their situation, as employers do not want to risk hiring someone that could possibly be arrested and imprisoned, as that could hurt the brand, image or productivity of the company.
7. Raising a family
Justice for Sisters feel that adoption laws works on the assumption that women are better at child rearing, reinforcing binary gender roles and mythology of maternal instincts and that of the construct of family. The family structure, despite it changing today, still remains binary and heteronormative. This means that it involves parents of two different genders and children of clearly defined and socially accepted gender or sexual orientation with no disabilities. These social constructs make it hard for transgenders to be seen as good parents, let alone parents.
Transgenders are often viewed, due to lack of information and awareness , as immoral and a bad influence to children. The NGO maintains that transgenders’ desires to reproduce or build a family has nothing to do with gender or cannot be reduced to gender or genitals. People regardless of gender identity have the desire to reproduce and build a family.
To sum up, Justice for Sisters provides these approaches as the way forward for society to understand the community:
a. The government must have meaningful dialogue with the transgender community, immediately stop all arrests and prosecution of transgender persons because of their gender identity.
b. Authorities must repeal laws that criminalise transgender, take all measures to increase access of transgenders in the education, healthcare and employment sectors, and change the attitude of the public services towards transgenders.
c. Non state actors, including the private sector needs to review employment policies and adopting ones that are transgender-friendly, while having a greater role in public education, by organising gender sensitization seminars at workplace.
d. Organising more public discussions regarding gender and social constructs, as well as have more spaces for transgenders to express themselves and be represented.
e. Media needs to increase positive representation of transgenders and not reduce transgenders to genitals and transitioning experiences, and play a greater role in public education.
Image credit: Afif Raiezal/The Malaysian Insider
In the last few years, we have seen a vibrant global movement to understand and embrace people of diverse sexual orientations, gender identities and gender expressions in almost all sectors, from pop culture to business and politics. Laverne Cox’s TIME magazine cover was truly a historic moment, as it signified a shift in mainstream norms and attitudes towards transgender people, who have been marginalized for generations.
The transgender movement or the struggle of transgender persons for equality has been dubbed as the new civil rights movement, and rightly so. Even in 2014, transgender persons all around the world still suffer oppression and lack recognition as human beings with dignity and autonomy. This lack of recognition increases violence, impunity and discrimination towards transgender persons.
Globally, violence and discrimination towards transgender persons is all too common. All around the world, including Malaysia, transgender people still face rejection from family members and are often kicked out of their homes at a very young age. Young transgender persons also face severe bullying in school, which often goes ignored by school administrations and adults. Ultimately, many transgender students lose interest in education, perform poorly in school, or forced to drop out of school. Adult transgender persons also face a range of societal issues including the lack of employment opportunities, lack of access to much needed healthcare services. In addition, transgender persons are also arbitrarily criminalized, arrested, and imprisoned for their gender identity. This list of the deprivation of rights that transgender persons face goes on and on. Due to the insurmountable and systemic stigma and discrimination that transgender persons face, most transgender persons continue to be trapped in a vicious cycle of poverty.
November 20th is the global Transgender Day of Remembrance (TDOR). Annually on this day, we commemorate the lives of transgender people who were violently murdered in hate crimes. According to the Transgender European Union (TGEU), 226 killings of transgender persons because of hate crime had been reported worldwide between November 2013 and October 2014 alone. In total, since January 2008 the murders of 1,612 trans people have been reported, out of which, 138 killings of trans people have been reported in 16 Asian countries.
Recognizing the structural and systemic violence as well as discrimination that transgender and gender non-conforming people face, state and non-state actors alike are now taking active measures to promote and protect the rights of all and eliminate discrimination as much as possible, especially state sanctioned discrimination, such as discriminatory laws and policies. To this end, the United Nations (UN) launched a global campaign ‘Free & Equal’ to raise awareness and understanding regarding sexual orientation and gender identity as well as lesbian, gay, bisexual, transgender, intersex and queer persons (LGBTIQ). Further, many countries, including Argentina, Denmark, Malta and others have introduced legislations to allow transgender persons to change their name and gender markers in their official documents.
Discriminatory legislations and responses by the international community
In late 2014, Uganda introduced the anti-gay law, in which both LGBT and allies were criminalized. Under this draconian law, anyone who shelters or employs someone from the LGBT community too can be penalized.
In response to this anti-gay legislation, the World Bank President Jim Yong Kim in his editorial piece in the Washington Post cautioned that such discriminatory legislation towards LGBT persons “can hurt a country’s competitiveness by discouraging multinational companies from investing or locating their activities in those nations”. Following the statement in February 2014, the World Bank decided to postpone its financial aid, worth USD$90 million to Uganda. The law also drew flak from donor countries such as Denmark and Norway, who were ready to redirect aid away from the government to aid agencies.
Uganda’s Supreme Court struck down the law as null and void in August 2014.
Russia also introduced an anti-propaganda law in June 2013, in which any form of promotion of LGBT or ‘non traditional sexual relations’ content is prohibited amongst others. Following the enforcement of the law, a video emerged online of five assailants stripping and violently attacking a transgender person. More often than not, such discriminatory laws have the direct impact on people who visibly do not fit into the man/woman binary or gender norms, including transgender persons and gender non-conforming persons (‘effeminate’ men, ‘butch’ women, etc.).
The discriminatory law, coupled with heavy-handed suppression of human rights including the imprisonment of the members of Pussy Riot, drew sharp criticism from the international media and community.
In February 2014, Russia hosted the Winter Olympics in Sochi. Ban Ki Moon, the United Nations secretary general, condemned the attacks on the LGBT community in a speech ahead of the Winter Olympics in Sochi, “We must oppose the arrests, imprisonments and discriminatory restrictions they [LGBTI people] face.” Further, the UN consistently called for the repeal of this anti-LGBT legislation.
In the lead up to the games, many called for a boycott of the winter Olympics. The United States of America, Germany, France, Poland and the European Commission in protest chose not to send high-ranking officials to the opening ceremony because of the repeated attacks on human rights and the introduction of discriminatory legislations. Russia’s human rights violations have severed its ties with the United States, and caused the country to be isolated by a number of countries.
With mounting pressure from the civil society in Russia and the international community, Russia announced their willingness to take all required measures to prevent homophobic hate crimes and discrimination on the grounds of sexual orientation at the 24th UN Human Rights Council, while retaining the anti-propaganda legislation.
Following the campaign by the international community around the Winter Olympics, there is now a concerted effort to address discrimination and violence against LGBTIQ persons in and through sports. Consequently, the UN’s Human Rights Day in 2013 was themed “sport comes out against homophobia”.
Malaysia has announced its intention to bid to host the World Cup in 2026, an opportunity highly coveted by many nations across the world. FIFA has actively taken a part in addressing discrimination and violence on and off the pitch, and specifically bans discrimination based on sexual orientation and gender. In the last World Cup in Brazil, GLAAD and many other groups campaigned against violence and discrimination towards LGBTIQ persons in sports, with many athletes coming out to support the call for respect of all people regardless of sexual orientation and gender identity.
It is safe to say that Malaysia tries to position itself as a moderate Muslim country and a key player within the UN system as demonstrated by its multiple bids for positions in the Human Rights Council and the UN Security Council. Malaysia is currently a member of the UN Security Council. However, the state needs to realize that its policies and its extreme positions will come under greater scrutiny by the international community as it gains more visibility internationally.
‘I am Scared to be a Woman’, a Human Rights Watch report on human rights violations towards transgender persons in Malaysia, launched in September this year named Malaysia among the worst countries in the world for transgender person to live, for reasons including systematic abuses of arbitrary arrests, sexual assault and extortion by both religious authorities and the police. This reflects Prime Minister Najib Razak’s statement two years ago that the LGBT is a “deviant culture” that had no place in Malaysia.
With so much attention on violence and discrimination towards people of diverse sexual orientation and gender identity, including transgender persons, Malaysia needs to immediately and critically relook at its position on SOGI. As a nation striving towards high-income status, such a hostile position is just bad for business.
Justice for Sisters
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