‘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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