‘Criminalising’ men in women’s attire is unconstitutional, High Court told

Posted on 30 August 2012 – 08:04pm
Last updated on 31 August 2012 – 12:11pm
Karen Arukesamy

SEREMBAN (Aug 30, 2012): In what is the first case of its kind, four transsexuals are challenging the Negri Sembilan Syariah law that forbids males to openly dress or pose as females on the grounds that it is infringing their rights under the Federal Constitution.

The High Court today began a constitutional hearing before Justice Datuk Siti Mariah Ahmad on a judicial review of Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992, initiated by the four transsexuals who have been charged under the section.

Muhamad Juzaili Mohd Khamis, 24, Shukor Jani, 25, Wan Fairol Wan Ismail, 27, and Adam Shazrul Mohd Yusoff, 25, who work as bridal make-up artists, identify themselves and dress as women.

Counsel Aston Paiva, representing the four, told the court that Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992, which “criminalises” any man who dresses or poses as a woman, is “unconstitutional”.

The section provides for a fine not exceeding RM1000 or imprisonment not exceeding six months or both, upon conviction.

“They (applicants) have been identified to have a medical condition known as Gender Identity Disorder (GID). It is an attribute of their nature that they did not choose and cannot change,” he said.

“The undisputed medical evidence shows the applicants are biologically male but psychologically female. Thus, it is not applicable to them.”

He said the applicants, who have been arrested and harassed by the authorities several times, cannot conform to Section 66 by virtue of their medical condition, without suffering psychological harm and trauma.

“The applicants therefore ask this court for relief, either by declaring the law unconstitutional or by declaring that Section 66 does not apply to people like them, who suffer from GID,” Paiva said.

He pointed that Section 66 denies them the right to freely express their identity, and infringes Article 10(1)(a) of the Federal Constitution that guarantees freedom of expression.

Pointing that only Parliament can restrict freedom of expression, he added that Section 66 is unconstitutional as it is enacted by the state legislature.

They are also seeking a court order to prohibit their arrest and prosecution under the section.

Paiva said that Section 66 also violates:
>> Article 5(1) of the Federal Constitution, which enshrines the right to personal liberty.
>> Article 8(2), which states that “…there shall be no discrimination against citizens on the grounds only of religion, race, descent, place of birth or gender in any law…”
>> Article 9(2), which enshrines the right of every citizen to move freely throughout Malaysia.
>> Article 4(1), which declares void any law that is inconsistent with the Federal Constitution.

“Only men can be charged with this offence in this state – not women,” he said, adding that in other states, similar law involves immoral activities and not just dressing up as women.

He submitted that the challenge before the court is whether the state’s enactment is consistent with the Federal Constitution and not to rule on religion or religious precepts.

Siti Mariah fixed Oct 11 for the next hearing.

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Press Statement by the Mak Nyah Community of Malaysia

Date: 30 November 2010

We are the Mak Nyah community and we are being persecuted by Section 66 on “Lelaki berlagak seperti perempuan” of the Syariah Criminal Enactment (Negeri Sembilan) 1992 (please refer to this section and similar sections in other states in Malaysia in Appendix 1). We have suffered mental distress, physical violence and even sexual molestation at the hands of the religious officers who enforce these laws. We are stripped of a life of dignity and deprived of our personal liberty, and we fear for our lives. We are unable to step out of our homes without the fear of getting harassed, abused or arrested. We are no longer able to go out or to eat and drink in public without the fear of harassment and abuse from the religious officers who enforce these laws. We demand that the religious authorities of the State of Negeri Sembilan and all its officers stop harassing, victimising and persecuting us for who we are.

In Negeri Sembilan where we live, we are forced to walk around without our brassieres as it is used as evidence against us upon arrest. We are “advised” by the religious officers to just wear t-shirts, track bottoms or men’s shorts. Despite following these instructions, we are still arrested on the basis that we physically look like women. We are sexually molested or our breasts are groped when the religious officers who enforce these laws insist on checking if we are wearing brassieres. We are sometimes made to change our clothes in full view of the religious officers.

We are instructed to plead “Guilty” by the religious officers and even by the state’s Legal Aid Bureau. Without proper legal advice, we plead “guilty” and as a result we are sentenced with heavy fines and sometimes we even face imprisonment. Under such laws, it is impossible for us to live and earn a living. Sometimes, we are also compelled to attend mandatory religious counseling sessions. We are Mak Nyahs. No amount of “counseling” or coercion can ever change that. All we ask is to be left alone and for respect of our personal and private lives. Such mandatory counseling we consider to be an infringement of our personal liberty.

We also suffer hardships in obtaining employment as we are discriminated against by employers on the basis of who we are. We suffer rejection in schools and in some institutions of higher learning. At the latter, we are sometimes required to attend boot camps in order to make us more “manly”.

As Mak Nyahs, we have the right to live with dignity like all citizens in Malaysia. We have the right to our identity, the right to self-expression in our dress and mannerisms, the right to respect for our personal and private life and the right to livelihood as other citizens in Malaysia.

These are our fundamental liberties as enshrined in Articles 5, 8 and 10 of the Federal Constitution, the supreme law of the land. Any law that violates our rights arbitrarily is no longer good law. These are also violations of our human rights under the Universal Declaration of Human Rights and the Jogjakarta Principles on human rights relating to sexual orientation and gender identity.

We ask the Legislative assemblypersons of Negeri Sembilan, the Negeri Sembilan Religious Department Directors and all other Malaysian elected representatives and leaders to stop the violence and persecution that has been targeted against our Mak Nyah community.

We appeal to all who believe in freedom under the Federal Constitution, human rights, non-discrimination and equality, to stand with us and join us in our call for the stop of the targeted persecution and violence towards our Mak Nyah community in Malaysia.

Sister solidarity

Sunday, February 20, 2011

By HARIATI AZIZAN starmag@thestar.com.my

EVEN popping into the convenience store down the road can be dangerous – if you are a transgender (Mak Nyah). That was what Muna* learnt last year when she went out to get the paper one morning.

Before she realised what was happening, she was surrounded by a group of men who claimed to be religious enforcement officers.

“They ordered me to hitch up my shirt and show them my bra. I was so shocked that I could only stare at them, so one of them pushed me face down to the ground and held my hands to my back while another pushed my shirt up and tugged my bra. The others only laughed,” Muna recalls.

Although it was not the first time she had been stopped by the authorities, it was the first time she had been groped and manhandled, on the street and in daylight. The incident rattled her, and for many months after that Muna was too frightened to step out of her house.

Violent abuses against the transgender community, specifically male-to-female transsexuals, also known as Mak Nyah, appear to be rising in Malaysia in the past few years, not only at the hands of the authorities and the religious police but also the ordinary Joe on the street.

Reported cases allege that during “raids” some errant enforcement officers often ask for bribes and sexual favours from the transgender. In custody, they are usually asked to strip in front of the authorities, while their breasts are groped and they are hurled with derogatory sexual remarks.

Like Muna, many in the transgender community suffer mental anguish from the fear of discrimination, abuse and persecution. Worried that they can be arrested at any time, they feel uneasy about going out.

Former Boom Boom Room dancer Dara Othman admits that it is a stressful way to live. “For most transgender, it is down to knowing where and what time is safe. But now, it seems like anytime and everywhere is not safe.”

Hence, some people – mainly those who have been working with PT Foundation (a community-based, voluntary non-profit organisation that provides information, education and care services relating to HIV/AIDS and sexuality in Malaysia – have banded together under Justice for Sisters to highlight issues surrounding violence and persecution against this community in Malaysia, as well as provide them support and assistance.

They had met up with a group of Mak Nyah in Negeri Sembilan, heard their stories and documented some cases. S. Thilaga, one of those behind the movement, says: “At that point, many were pretty sick of the situation and wanted to change it. So we met up with a few lawyers and were told that what we can do is to challenge the law.

“Our transgender friends are up for it but they don’t have the money to challenge the law. Some can’t even make ends meet! So we thought we should do something to help them raise funds and create public awareness on the issue.” Thilaga adds that they work closely with the transgender community and try to involve them in all their initiatives. “Ultimately, we would like them to be in the forefront.”

Last December, Justice for Sisters was launched with a fundraiser concert at the Annexe Gallery, Kuala Lumpur. Recently, another fundraiser was held at Map KL, Dutamas – its third since the launch. The target is to raise up to RM60,000, says Thilaga, not only to help the transgender community challenge the matter in court, but also to help those who are left in dire financial straits while pursuing their legal defence.

Unfortunately, Justice for Sisters has only managed to raise slightly more than a third of that sum.

Also Malaysian

There are an estimated 30,000 plus transgenders in the country, for whom dealing with rejection from the so-called “normal” members of society is a daily preoccupation because they don’t fit in the identity box assigned by society.

Being called names and getting dirty looks are normal occurences, Thilaga says. “Some people go to the extent of throwing bags of urine at Mak Nyahs and throwing things into their house when they are not around.”

Considered a “high-risk” group, most in the transgender community are caught in a vicious and pernicious cycle of violence and persecution for being who they are.

“Many suffer rejection by their families and some are even kicked out of their homes. They are subjected to various forms of humiliation so they stop schooling. They’re rejected for jobs and loans, and struggle to find safe shelter. They’re constantly coerced in every way and face every kind of pressure to conform (usually through violence).

“Quite a number leave their homes to look for work as early as 15 years old, but they are unable to get reasonably paid employment because people are reluctant to hire them. And if they do get hired, they are often underpaid,” says Angela Kuga Thas, another key mover of the human rights campaign.

The crux of the issue is the blatant refusal to understand and appreciate Mak Nyahs for who they are, she opines.

“They exist in every single country in this world and are as diverse as the extent and level of changes that they physically seek, yet as a community, this is their identity, this is who they are.”

In Malaysia, their identity can constitute an immoral conduct offence under civil criminal law. This is mainly used against them if they are caught in a vice-related context.

Under the Syariah criminal law, however, the Muslim transgender can be persecuted for being a man who dresses like a woman (lelaki berlagak seperti perempuan). In almost every state, this offence carries a jail term of six months (or one year in some states) or a RM1,000 fine (up to a maximum of RM5,000 in one state).

These are very hefty costs considering that Mak Nyahs are being arrested once every two months, or more frequently, says Kuga Thas. And should one be arrested for the third time, and found guilty all three times, she can be sent to prison, Thilaga says. “It is like the three strikes rule,” she notes.

According to Justice for Sisters, there is an alleged growth of arbitrary arrests of the transgender persons, especially in certain states. One transgender activist, who declines to be named, say she was even arrested for being a woman who dressed as a man.

“I was in jeans and T-shirt and looked androgynous, I guess, so they charged me with ‘menyerupai lelaki’ (dressing as a man) instead.”

However, she is used such arbitrary charges. “Sometimes these so-called enforcement officers have no identification, nor do they follow rules and procedure. They are like polis koboi (lawless cowboy enforcement officers) . Once when I was arrested, one of them grabbed my boobs and said, ‘Your butt looks like a man but you have boobs,’” she recalls bitterly.

Make-up artist Miss A* hits out at the authority’s common tactic of stripping them down to their underwear or asking them to flash their bra to prove that they are transgender.

“We are really confused. Who do we offend with our underwear? Whose business is it what we wear under our clothes anyway? So, what do they want us to do, let everything hang out?”

Kuga Thas, who is an advocate for women’s empowerment and non-discrimination, believes those in power and in authority need to realise that no amount of coercion and violence will change the transgender community because “Mak Nyahs are Mak Nyahs.

“They are who they are, inside and outside of their homes. They are not pretending to be women and they are certainly not impersonating women. They identify as women, not men, and many often begin to feel that way between the ages of seven and 10.

Dara concurs: “People have no right to ask us to change. I always feel that God made us the way we are for a reason, so it is not up to the people to judge.”

Kuga Thas alleges that ever since they started challenging the law by having the arrested transgender plead “not guilty” to the charge against them under Syariah law, there has been a crackdown on them.

“They are targetted for arrests as soon as they step out of their homes. . This form of persecution would have received a massive amount of protest if it were to happen to other Malaysians.”

To Thilaga it is a simple human right issue. “Just because they are transgender, and a minority group, doesn’t mean that they don’t have rights. While they are visible, they are a muted group. That is why, in solidarity, we should stand with them to fight for their rights. We should be outraged that their rights are being violated because of who they are.

Kuga Thas agrees. “As Malaysians, we should be appalled that our transgenders continue to suffer violence and persecution for their identity.

“Everyone else has the freedom to be out as late and as long as they want, to dress the way they want to, to have any hairstyle they like, to meet up with friends for food and drinks, and have a social life.

“Why not the Mak Nyahs? Why shouldn’t they have this freedom? They are fellow human beings and they are fellow Malaysians,” she adds.

* Not her real name.

Those who are interested to find out more about Justice for Sisters or contribute to the cause can e-mail justiceforsisters@gmail.com.

Four get leave to challenge law barring cross-dressing

Source: Malaysiakini, November 4, 2011 (by Hafiz Yatim)

In what is believed to be a test constitutional case involving the transgender community, the Seremban High Court today granted leave (permission) to four applicants to challenge a syariah law barring them from dressing as females.

Justice Rosnaini Saub, in her decision granting leave, recognised that the matter involved various constitutional issues.

“As it involves valid constitutional issues, the court is granting leave to hear the application,” she said.

No date has been fixed to hear the application. In judicial review cases, it is not an automatic right for the cases to be heard as the applicants have to gain the court’s permission to initiate proceedings.

This is to ensure that the application is not frivolous.

The four – Muhamad Juzaili Mohd Khamis, 24, Shukor Jani, 25, Wan Fairol Wan Ismail, 27, and Adam Shazrul Mohd Yusoff, 25 – named the Negri Sembilan Islamic Affairs Department, its director, chief syariah enforcement officer, chief syariah prosecutor and the state government as respondents.

Working as bridal make-up artists

The four applicants, who are working as bridal make-up artists, identify themselves as women and dress as women.

They claimed that Section 66 of the Syariah Criminal (NS) Enactment denies them the right to freely express themselves.

They claimed that the section was unconstitutional as it violated:

  • Article 5(1) of the federal constitution, which enshrines the right to personal liberty.
  • Article 8(2), which states that “…there shall be no discrimination against citizens on the grounds only of religion, race, descent, place of birth or gender in any law…”
  • Article 9(2), which enshrines the right of every citizen to move freely throughout Malaysia.
  • Article 10(1)(a), which states that every citizen has the right to freedom of expression.
  • Article 4(1), which declares void any law that is inconsistent with the federal constitution.

All four were represented by Aston Paiva, while senior federal counsel Suhaila Harun appeared for the respondents.

The four claimed they had undergone psychological evaluation and a Hospital Kuala Lumpur psychiatrist had classified all of them to possess gender identity disorder.

Muhamad Juzaili, Shukor, Wan Fairol and Adam Shazrul knew of the gender conflict when they were 15, 20, 13 and 13 years old respectively, in that they showed the mannerisms of women.

All four claimed that they had been arrested, sexually molested, battered and subjected to degrading treatment.

Arrested several times

Muhammad Juzaili had been arrested four times in 2010 alone and charged three times under Section 66, where in the first two he was convicted and paid fines of RM700 and RM1,000 respectively.

Shukor and Wan Fairol were separately arrested and detained twice, while Adam Shazrul had also been arrested twice since 2005, of which he was convicted once and ordered to pay a fine of RM800.

All four claimed that as a result of the enactment, they had difficulty to move about and this violated their rights under Article 9 (2) regarding mobility. They also claimed that, among others, Section 66 was in violation of Article 5 on liberty, particularly to having the freedom to choose.

They are seeking several declarations, including that Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 is inconsistent with Article 8(2), Article 10 (1) (a) , Article 5(1) and Article 8(1), Article 9(2).

Alternatively, they are seeking a declaration that Section 66 has no effect and is not applicable to them, who are psychologically women or have gender identity disorder.

They are also seeking an order to prohibit the chief syariah enforcement officer or his agents from taking action or conducting or continuing investigations on them, besides other relief deemed fit by the court and costs of their application.