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.”

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