‘Mak Nyah’ witch-hunt fear

Council raises concern transgender persecution may increase discrimination
FRIDAY, OCTOBER 19, 2012 – 12:47
by Hamzah Nazari
Location:
KUALA LUMPUR

A RECENT case in Negri Sembilan where four transgender persons lost their case when challenging a ban on Muslim men dressing and posing as women could spark a witch-hunt by the authorities against the community, the Malaysian AIDS Council (MAC) said.

“We don’t want these things to happen again in other states,” said MAC media and communications head Azahemy Abdullah, when commenting on an earlier MAC statement backing the cause of the four transgender persons.

“While MAC respects the decision of the Negri Sembilan Syariah Court, we firmly believe that every Malaysian is entitled to equal protection and dignity under the country’s constitutional rights,” said Azahemy.

“We fear that this judgment could lead to increased stigma as well as acts of persecution and discrimination by authorities, especially from the enforcement officials of the religious department.”

However, practising Syariah Court lawyer Fakhrul Azman Abu Hasan said Syariah Courts prosecuting transgender persons was not a new trend.

“The syariah law is very clear. A man cannot act as a woman and a woman cannot act as a man,” he said.

He said the Syariah Court prosecution and judges had to act according to the law but usually opt to send transgender Muslims for counselling.

“They give chances, arrange for an Ustaz to give lectures on why they are born as men and women.”

“Most will plead guilty and not contest it. They will pay the fine,” he said.

Fakhrul Azman said transgender persons could challenge the law by claiming it was against human rights in the Federal Court, or by getting their plight to be heard in Parliament.

If they were to win in court, he said the law would be deemed void, but added that this would be difficult as, unlike in European countries, morality is taken as law in Malaysia.

“They (Europeans) do not take morality as law, but in Asian and Muslim countries, they do.”

“The law has been enacted by parliament. If the law is there, the judges have to follow,” he said.

Bar Council president Lim Chee Wee said transgender Muslims were treated well in the past and there was no reason as a matter of policy why they should be persecuted or prosecuted now.

He quoted Teh Yik Koon’s essay, “The Male To Female Transsexuals In Malaysia: What Should We Do With Them?” in which the writer claimed that transgender persons, commonly known as ‘Mak Nyahs’ in Malaysia, had a better standard of living during the colonial days and that there were less sex workers then compared to now.

Many were Mak Andams (bride’s attendants), joget dancers, cooks or artistes.

He said in an interview with a 63-year-old ‘Mak Nyah’, it was related that during the colonial days, they were left undisturbed.

Lim said Malaysians must ask themselves why people who are different and who are at the margins of society could not be accepted.

“Why can’t we accept them as who they are with compassion, and liberal and progressive ideals, rejecting extremism?” he asked Lim said: “Human beings should be treated equally, and the principle of nondiscrimination is paramount in this respect.

“Individuals should have the right to make their own choices relating to gender identity,” he said.

A joint statement by the Australian GLBTIQ Multicultural Council and the Queer Muslims in Australia

It is a sad fact that transgender people world over continue to suffer from persecution and discrimination, as is the case in Malaysia today. Although there has been progress in many parts of the world for the recognition and protection of rights for gay and lesbian people, the transgender community continue to report higher levels of abuse, harassment, vilification and bullying all over the globe. We call on the Government of Malaysia to respect the human rights of all its people and repeal discriminatory laws which have repeatedly targeted transgender citizens.

http://www.agmc.org.au/

Regional groups back transgender 4

Leven Woon | October 18, 2012

Some 21 local and regional rights groups have hit out at the Seremban High Court verdict last week.

PETALING JAYA: A Seremban High Court’s verdict last week against four Muslim transgenders dressing up in women’s clothes has drawn flak from local and regional rights groups.

In a joint statement endorsed by 21 NGOs, including Indonesia’s Arus Pelangi, Cambodia’s League for Promotion and Defence of Human Rights, the Philippines’ Gender and Development Advocates, Burma’s Human Rights Education Institute and Thailand’s Anjaree Lesbian Group, they described the court’s decision as “regressive”.

“We believe as fellow citizens, irrespective of race or religion, transgender people are equally entitled to all the constitutional rights that are enjoyed by other Malaysians.

“We believe the judge’s ruling is a regressive step and adversely affects the human rights of all Malaysians,” they said.
The statement was also supported by local Islamic Renaissance Front, Malaysia Civil Liberties Movement, Pusat Komunikasi Masyarakat (Komas), Persatuan Masyarakat Selangor dan Wilayah Persekutuan (Permas), Tenaganita, Seksualiti Merdeka and others.

The groups said they were “distraught and disheartened” with the verdict of Justice Siti Mariah Ahmad who held that Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992, excludes the transgender fundamental liberties under the constitution.

“We are saddened to hear that the court has ruled in favour of the state and its officials, thus condoning discrimination and violence on grounds of gender identity,” they said.

The rights advocates also said that the court had failed to consider the medical evidences, such as the fact that the four transgenders had been diagnosed with “Gender Identity Disorder”.

Citing a statement by the American Psychiatric Association (APA), they said medical experts agreed that laws and policies that discriminate people with “Gender Identity Disorder” or a similar term “Gender Dysphoria” should be repealed.
They said transgender people were often subjected to various forms of violence, stigma and discrimination, such as name calling, bullying, or in some cases families disown them.

“Portrayal of transgender people as deviants and threat to public morality in the mainstream media too contributes to the stigma, discrimination and violence that are faced by the transgender community,” they added.

Last week, the Seremban High Court delivered a blow to the four who filed a judicial review seeking to declare Section 66 of Syariah law as ultra vires with fundamental liberties guaranteed under the Federal Constitution.

Siti Mariah had said the four Muslim transgenders are subjected to Syariah law and hence the Federal Constitution should be exempted under this case.

On Monday, NGO Sisters In Islam had called for a comprehensive review on Syariah criminal law.

Press Statement: Treat Transgenders with Compassion, Malaysian AIDS Council Urges

Kuala Lumpur, 17 October 2012 – Malaysian AIDS Council (MAC) stands in solidarity with the four transgender persons who lost their bid in challenging the ban on Muslim men to dress and pose as women under Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment. The judgment was passed on 11 October 2012.

While MAC respects the decision of the Negeri Sembilan Syariah court, we firmly believe that every Malaysian is entitled to equal protection and dignity under the country’s Constitutional Rights. We fear that this judgment could lead to increased stigma as well as acts of persecution and discrimination by authorities, especially from the enforcement officials of the religious department.

We are deeply concerned about the negative impact of the judgment on the greater transgender community. Much like everyone else, transgenders too are productive members of society. They are capable of contributing positively to the community at large and they have families to support. Denying their gender identity or expression will only cause them to live their lives in constant fear, and limit their opportunities to attain meaningful livelihoods. At MAC, we believe in compassion – the universal value that guides all our actions and responses – and strive to eliminate environments that breed intolerance, persecution and penalisation of marginalised communities.

MAC also strongly objects to the court’s insinuation that being a transgender will increase the person’s vulnerability to HIV infection. Gender identity or sexual orientation does not predispose one to HIV; unsafe sexual practices do.

Therefore, to address misconceptions of HIV and to increase awareness, information and empathy towards transgender people and other sexual minorities, MAC and its Partner Organisation, PT Foundation, welcome the call by Justice Siti Mariah Ahmad to work closely with the religious authorities of Negeri Sembilan. We believe this engagement is a step in the right direction to remove all structural barriers to health equities – particularly gender and sexuality-based discrimination – that have been known to negatively affect access to HIV prevention, treatment, care and support services.

Malaysian Court Rejects Challenge to Cross-Dressing Ban

By LIZ GOOCH
Published: October 11, 2012

KUALA LUMPUR, Malaysia — A challenge to a law barring Muslim men from dressing or posing as women was dismissed on Thursday by a Malaysian court, prompting concern that more transgender people in the Muslim-majority country may be prosecuted.

In Malaysia, Muslim men can be fined and jailed for transvestism under the country’s dual legal system, which includes secular laws that apply to all citizens as well as Islamic or Shariah laws that apply only to Muslims, like the ban on transvestism. Penalties for cross-dressing differ in individual states, but in Negeri Sembilan, where the case was heard, convicted offenders may be sentenced to up to six months in prison, fined as much as $325 or both.

The application to the court to review the law, which was brought by four Muslims who were born male but act and dress as women, was the first time anyone had sought to challenge the ban in a secular court.

The Negeri Sembilan High Court ruled that because the litigants are Muslim and were born male, they must adhere to the law, because it is part of Islamic teaching, said Aston Paiva, a lawyer representing them.

“In my view, it sets a very dangerous precedent, because it’s effectively saying that state-enacted Islamic law overrides fundamental liberties,” Mr. Paiva said. Referring to the judge, he continued, “She has basically said that even if it conflicts with freedom of expression, the Islamic laws override the Constitution.”

The judge also said that a Malaysian nongovernmental organization that supports transgender people in the country, the PT Foundation, should work with the religious authorities to ensure that transgender people receive counseling, Mr. Paiva said.

The four litigants, all of whom have been arrested for dressing as women, had argued that the law violated Malaysia’s Constitution, which bans discrimination based on gender and protects freedom of expression. They also said the law should not apply to them because they have received diagnoses of gender identity disorder.

While the four litigants dress as women, use hormones and go by feminine names, their official identification cards declare them to be male and carry their original male names. They want to legally change their names and their officially recognized gender because they say transgender people face considerable discrimination in Malaysia, where homosexual acts are banned not only for Muslims but for the whole population, punishable by caning and up to 20 years’ imprisonment.

“I’m disappointed because it basically deprives me of my freedom and deprives me of the right for me to be myself,” one of the litigants, whose legal name is Mohammad Juzaili bin Mohammad Khamis, said of the verdict.

“Now that it’s out and the court decision is not in our favor, I’m concerned that more arrests, more harassment will happen again and again,” added the 25-year-old, who has been fined 1,000 ringgit on three separate occasions for dressing as a woman. She said she planned to appeal the decision and that the other litigants were considering whether to do so.

Thilaga Sulathireh, a researcher and advocate for transgender rights who attended the hearing, said of the verdict: “It basically tells everyone that Muslims have no rights. It’s basically governing how one chooses to dress and how one chooses to express oneself. It’s a very shocking judgment.”

AIDS council backs transgenders’ legal battle

James Lim | October 17, 2012

The Malaysian AIDS Council supports the four transgenders who challenged a dress ban on Muslim men dressing as women.

PETALING JAYA: The Malaysian AIDS Council (MAC) stands in solidarity with the four transgender individuals who lost their bid in challenging the ban on Muslim men to dress and pose as women.

MAC said it is deeply concerned over any negative impacts on the greater transgender community as caused by the Negeri Sembilan Syariah court judgment.

“Transgenders too are productive members of society.

“Denying their gender identity or expression will only cause them to live their lives in constant fear, and limit their opportunities to attain meaningful livelihoods.

“At MAC, we believe in compassion- the universal value that guides all our actions and responses – and strive to eliminate environments that breed intolerance, persecution and penalisation of marginalised communities,” said the Council in a statement.

Previously, the four transgender individuals applied for a judicial review to declare Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment as unconstitutional. The enactment banned men from dressing and posing as women.

However, Justice Siti Mariah Ahmad ruled that it was undisputed as the four applications were Muslims, hence Section 66 applied to them.

Meanwhile, the MAC highlighted the misconceptions of HIV as pertaining to the case.

“MAC also strongly objects to the court’s insinuation that being a transgender will increase the person’s vulnerability to HIV infection.

“Gender identity or sexual orientation does not predispose one to HIV; unsafe sexual practices do,”the Council explained.
MAC together with partner organisation, PT Foundation, said it welcomed the call by Justice Siti Mariah Ahmad to work closely with the religious authorities of Negeri Sembilan.

“We believe this engagement is a step in the right direction to remove all structural barriers to health equities – particularly gender and sexuality-based discrimination – that has been known to negatively affect access to HIV prevention, treatment, care and support services,” added MAC