A Response to Criticism Against SUHAKAM’s Study “Feasibility of Having Legislation of the Recognition of a Third Gender in Malaysia”

Legal gender recognition is the process of changing the name and gender information on official key documents and in registries, in order to recognize a person’s gender identity. This process recognizes transgender and non-binary persons as equal human beings with dignity and affirms their right to identity and self determination. 

Discrimination caused by lack of legal gender recognition 

The non-recognition of gender identity in legal documents opens transgender persons up to multiple forms of discrimination, violence, degrading and humiliating treatment, fraud and other forms of exploitation. Simple, every day tasks like going to the bank can cause extreme anxiety for a trans person who has to reveal that they are transgender and answer questions regarding their gender identity. 

Another example documented in ARROW’s  LGBT Monitoring Report relates the humiliating experience of a trans woman and her friends who were made to stand in gender-segregated lines based on their gender marker in their identification cards during a club raid. They also faced verbal violence, including being told that they are men. 

The Suhakam study “Discrimination Against Transgender Persons based in Kuala Lumpur and Selangor (2019) shows that 57% of the respondents faced pre-employment discrimination. Respondents were, among other things, subjected to intrusive questions about their gender identity, bodies and appearance, and the difference between their physical appearance and the gender identity stated in their identity cards. 

Doxing or non-consensual disclosure of transgender persons’ gender identity, as well other forms of violation of privacy by state and non-state actors takes place with impunity. There are many instances of Malaysian state agencies that have directly violated transgender and intersex persons’ privacy by disclosing their gender identity in to the public. In 2020, state religious agencies obtained Nur Sajat’s legal documents from the National Registration Department, disclosing her deadname and assigned sex to the media without her consent, resulting in the deadnaming and misgendering of Sajat in the media, and prosecution against her based on her gender identity. Similarly, doxing can also potentially expose transgender persons to vigilantism.

In the past, state agencies have also proposed medical tests that are not evidence- or rights-based to determine a person’s gender identity. Gender identity is self determined. Just like cisgender people, transgender, non-binary and gender diverse persons do not need to be subjected to tests to determine their gender identity. Research shows that as human beings we are able to articulate and express our gender identity from childhood. 

The International Classification of Diseases (ICD-11) removed all trans-related diagnoses from the mental disorders chapter as “evidence is now clear that it is not a mental disorder, and indeed classifying it in this way can cause enormous stigma for people who are transgender…” 

86% of the respondents of the Suhakam study stated that they would prefer to change their gender marker in their identification cards. These are the provided reasons:

  • Their physical features conformed to male or female but this was not reflected in their identification card;
  • To be recognised as woman or man;
  • To avoid discrimination based on gender;
  • To ease daily affairs such as movement, access to education and religion;
  • To reflect current identity in their identification card;
  • It would give benefits, advantages, comfort, confidence and boldness to them;
  • It would be easier to obtain jobs;
  • To avoid confusion of the (respondents) gender identity. 

Legal gender recognition will have a positive impact on transgender persons lives:

  1. Ability to live with dignity and feel a sense of safety and security. The Suhakam study shows 46% of the respondents stated that they don’t feel safe living in Malaysia because of lack of acceptance, discriminatory laws, discrimination, lack of life security, unable to change gender marker in IC, increased vulnerability to arrest, among others. Meanwhile, 72%  have thought of migrating to countries that provide better protection for trans people, legal gender recognition, accessible trans healthcare services, and an environment where trans persons are able to express themselves without hesitation. A gender recognition law will acknowledge transgender persons’ gender identity and contribute to transgender persons’ safety. 
  1. Significantly improve mental health and well-being. Transgender persons and other marginalized groups face minority stress as a result of the discrimination, violence and marginalization that they experience. In addition, transgender and non-binary persons experience varying levels of gender dysphoria, a form of anxiety and stress as a result of binary norms that trans and non-binary people are subjected to. For a transgender person, minority stress and gender dysphoria can surface when they are misgendered and mistreated because of their gender identity. 
  1. Strengthen families and foster family acceptance. Legal gender recognition can help lead to acceptance from family members, and reduce the isolation faced by transgender persons, thereby strengthening  the family institution. One of the main drivers of discrimination, violence and suppression of gender identity and gender expression against transgender persons by family members is fear of discrimination, violence and marginalization of transgender persons. Thus, legal gender recognition and affirming laws can foster wider acceptance of transgender persons. 
  1. Opens doors for protection and access to all areas. Legal gender recognition will address multiple forms of discrimination and contribute to transgender persons gaining greater access to employment, healthcare services, housing, education and other areas of life without discrimination and fear. 

Myth Busting! Debunking JAKIM’s 6 reasons against legal gender recognition in Malaysia 

  1. Membuka ruang kepada perkahwinan sejenis meruntuhkan institusi keluarga (Giving opportunity to same-sex marriage which destroys family institutions)

Families exist in a variety of forms, including nuclear families, single parent families, extended families, step families, and same-sex families. The notion that the ideal family is made up of one mother and one father is outdated, heteronormative and cisnormative, and undermines the reality in which many families find themselves today. 

In Malaysia, many transgender persons experience isolation, discrimination and violence at the hands of family members because of the fear of social stigma.  Legal gender recognition will encourage family acceptance, and be the first step towards addressing the discrimination and marginalization that transgender persons experience.

Transgender persons also have the right to create families and become parents. Research reveals that transgender parents are just as fit parents as heterosexual cisgender parents, and there is no difference between children raised by cisgender heterosexual parents and non cisgender parent, proving that good parenting is not based on gender identity and cisnormative gender roles. 

In reality, there are many children raised by transgender parents who respect and love their parents regardless of their gender identity. The US National Discrimination Survey (2011) shows that 58% of transgender parents found their relationships with their children to be the same or better and 13% found that some things were better and some things were worse after transitioning or sharing their gender identity with their children.    

Research also shows that the quality of the child’s relationship with a parent or parents, the quality of parents’ relationship with each other or other adults and economic factors are among major factors that influence a child’s development and happiness. 

While there are diverse views on the marital institution, marriage equality does not destroy the family institution. Instead, it expands and recognizes the diversity of relationships and family units. Furthermore, it provides adequate protection for persons in diverse relationships. Research shows marriage equality brings positive outcomes in society, among others, decreased mental health burden, increased access to health care among LGBTIQ persons. 

The same sex marriage panic or the anxiety around recognition of transgender persons by a group of people must not be a barrier in addressing discrimination against transgender persons. As we have seen in other countries that have allowed marriage equality or any other forms of union between people of diverse gender, cisgender heterosexual people and LGBTIQ persons co-exist peacefully. 

  1. Menyebabkan jenayah hubungan sejenis (Causes same-sex crime)

Firstly, consensual sexual relations between adults should not be a crime. While consensual sexual relations between adults are criminalized under the laws in Malaysia, such criminalization violates the right to live with dignity, privacy and freedom to be free from violence under international laws and the Federal Constitution. 

Secondly, the notion that transgender persons engage in ‘same sex activities’ reinforces stigma, discrimination and violence against trans people and their partners. Regardless of who trans people are in a relationship with, they are seen as being in a same sex relationship. This can have an othering effect, and often denies the gender identity of the trans person. By using the term ‘same sex activity’ to describe transgender relationships, it forces trans people into their sex assigned at birth, thereby negating trans people’s identities. 

  1. Ketidakadilan kepada jantina asal (An unfair advantage)

Transgender persons do not have any advantage over persons of other gender identity. In reality, transgender persons are denied access in all spaces, be it education, sports, economy, politics, among others. As a result, they are left behind in all areas because of their gender identity. 

The assumption of unfair advantage stems from the conflation of sex and gender as well as flawed biological assumptions of transgender persons. This often results in further discrimination, denial of opportunities, and access to services and facilities. 

There is no scientific evidence that shows trans people have an advantage in the area of sports. The assumption that testosterone levels allow better performance of transgender athletes is unfounded. Scientific evidence shows “studies of testosterone levels in athletes do not show any clear, consistent relationship between testosterone and athletic performance. Sometimes testosterone is associated with better performance, but other studies show weak links or no links. And yet others show testosterone is associated with worse performance.” Biology is only one factor among many other factors that determine the ability to excel in sports, including time, resources, training, and support. 

The notion of ‘jantina asal’ or ‘original sex’ must be unpacked. If sex and gender are two seperate categories, the notion of ‘original sex’ does not make sense. 

More often than not, sex and gender are often confused as being the same thing, due to lack of access to accurate information, limitations in language, and the lack of comprehensive sex education in schools cirriculums

Sex or sex characteristics refers to a combination of genitals, gonads, hormone levels and chromosome patterns. Sex is often is seen as binary, XY is for male and XX is for female, but we also see more combinations than that in real life. Likewise, the existence of intersex individuals are just as natural. Gender can vary in individuals regardless of the sex they are born with.

Gender refers to how we identify in terms of our identity as girl/woman, boy/man, non-binary, or others. Gender, for many, is not a clear cut box or category, which they can fit themselves in. Gender is unique, personal and complex. Often, our gender identity is guessed and assumed at birth based on our genitals as a guide. However, it is important to clarify that our genitals do not determine our gender identity. This categorization of gender identity based on genitals is a categorization based on perceived ideas of procreation. 

The study of gender is multidimensional, and not limited to sociology. Gender, in particular gender identity, is studied in the field of psychology and neuroscience. Multiple research show that sex and gender identity are two seperate categories. 

  1. Menyebabkan penipuan jantina (Causes fraud)

Regardless of gender identity and sexual orientation, any individual can experience crime and violence of any form. However, LGBTIQ persons enjoy limited access to justice and due process because of discrimation from law enforcers, the criminalization of their identities under civil and syariah laws, social stigma and media sensationalism of LGBTIQ related news. 

LGBTIQ persons find it especially challenging to report cases that involve other LGBTIQ persons as perpetrators due to fear of perception of the non-LGBTIQ persons, risks of further stigmatizing and sensationalizing the LGBTIQ population. 

When conservatives use crimes reported by LGBTIQ persons against LGBTIQ persons, it causes adverse harm on LGBTIQ persons, from restriction of access to justice, reinforcement of negative perception of LGBTIQ persons by the general public and fear mongering. Likening gender recognition with fraud can cause further stigma and make it challenging for transgender people to live with dignity and safety, as transgender persons will continue to be seen as frauds and criminals, which in turn puts the lives of transgender persons at great risks. 

Catfishing, fraud and other crimes affect transgender persons and must be addressed separately. Such incidents cannot be used to punish and deny an entire community from having recognition of their gender identity, which will allow them to live with dignity. 

  1. Menafikan prinsip agama Islam yang melarang perbuatan transgender (Denying the teachings of Islam that forbids transgender acts)

There are diverse views on gender identity and sexual orientation in religion. During the Prophet Muhammad’s (pbuh) time, there were no prosecutions of gender diverse persons based on their gender identity. In fact, the Prophet prohibited excessive and punitive punishments against believers..   

Both the Qur’an and hadith indicate that there is a precedent that the mukhannaths or gender-diverse people were treated as women and allowed to be in the same room as women, in this case, being with the Prophet’s wives in their living quarters prophet’s room:

Sunan Abi Dawud 4107 states, ‘A mukhannath used to enter upon the wives of the prophet. They (the people) counted him among those who were free of physical needs.’

“And tell the believing women to… guard their private parts and not expose their adornment except that which appears thereof and to wrap [a portion of] their head covers over their chests and not expose their adornment except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess, or those male attendants having no physical desire, or children who are not yet aware of the private aspects of women-“ Qur’an 24:31

This particular Hadith in reference to being transgender has been narrated by many Islamic scholars like Ibn Majah, Al-Bukhari, Al-Tirmidhi, Ibn Hanbal and Abu Dawud. There is considerable evidence that in pre-colonial Islamic communities, mukhannath served as servants as long as they had no sexual interest in women. They would be allowed to enter women-only spaces, such as harems and other exclusively female spaces. Males whose effeminate qualities are innate and natural, and who do not experience sexual attraction towards women, receive no blame, guilt or shame as they are not considered sinners and should not be punished. Because of the regularity of mukhannath hired in women’s spaces, there were men who sought to take advantage because they lusted after women and pretended to be mukhannath in order to gain access into women’s spaces. 

Al Tabari took it as an example that the Prophet did not forbid a particular mukhannath, Hit, from entering the women’s quarters until he overheard the servant giving a description of the women’s bodies in great detail. Hit was later prohibited from the house because they had breached the trust of the Prophet, but not because of their effeminate identity. Rather the Prophet’s prohibition was a response to their actions in this particular situation. Clearly, just like any other person, the principles of moral and ethical behavior were also applied to them and did not entitle them to speak or behave inappropriately. This hadith narration is commonly used by conservative Muslim scholars to justify hatred for effeminate men and transgender people as it is used as proof that Muslims should not allow them in their houses

Islam has always taken sides with the oppressed rather than with the oppressor since the day of its establishment, and this includes taking a stand against transphobia, xenophobia and misogyny. Conservative scholars argue that changes to one’s body are only allowed under medical circumstances, such as in the case of khunsa (intersex people), but is this not in contradiction of the principle that “God does not make mistakes”? Not only that, the fact that being transgender has been vigorously explored in a variety of science discourses in the last century as a medical, psychological and socio-cultural phenomenon automatically nullifies the conservative argument that “changes in one’s body are only allowed under medical circumstances”. With this coherent argument, Muslim transgender people should be allowed to receive treatment too, as clarified by Sheikh Tantawi, the Grand Mufti of Egypt in his 1988 fatwa that allowing for sex reassignment surgery. 

  1. Mencemari hak asasi manusia (Desecration of human rights)

Suhakam’s aim in conducting the research is to promote and protect the human rights of all persons, including transgender persons. Legal gender recognition upholds transgender and non-binary persons’ right to self-determination, dignity, equality, and non-discrimination, which are guaranteed under Article 5 and 8 of the Federal Constitution. 

In an application by a trans man to change his name and gendered details in his identification card before the Kuala Lumpur High Court in 2016, Justice Nantha Balan affirmed the applicant’s constitutional rights under Article 5 of the Federal Constitution.  

“The Plaintiff has a precious constitutional right to life under Article 5(1) of the Federal Constitution and the concept of ‘life’ under Article 5 must necessarily encompass the Plaintiff’s right to live with dignity as a male and be legally accorded judicial recognition as a male.” 

Similarly, in India’s Supreme Court decision in the case by the National Legal Services Authority of India (NALSA) to legally recognize transgender and gender diverse persons, the Court noted that the non-recognition of gender identity deprives transgender persons of the right to dignity, equality, non discrimination and freedom of expression. The Judge referred to international human rights treaties and the Yogyakarta Principles in its decision. In particular, the Judge noted that: 

“Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender [person’s] sense or experience of gender is integral to their core personality and sense of being. Insofar as I understand the law, everyone has a fundamental right to be recognized in their chosen gender.”

The United Nations recommends the following five legal obligations for governments in order to protect the rights of LGBTIQ persons:  

  • Protect people from homophobic and transphobic violence. 
  • Prevent the torture and cruel, inhuman and degrading treatment of LGBT persons 
  • Prohibit discrimination on the basis of sexual orientation and gender identity, including enacting legal gender recognition laws 
  • Safeguard freedom of expression, association and peaceful assembly for LGBT and intersex people
  • Repeal laws criminalizing homosexuality, including all laws that prohibit private sexual conduct between consenting adults of the same sex.

Adopt an evidence and rights based approach in addressing the increasing violence against trans and gender diverse persons

In conjunction with Transgender Day of Remembrance (TDOR) on 20 November 2019, we commemorate the lives of trans and gender diverse persons lost to hate crimes and anti-transgender violence. 

According to the Trans Murder Monitoring (TMM), globally, 350 trans and gender diverse people were reportedly murdered between 1 October 2019 and 30 September 2020, a 6% increase in reported murders from last year. The report shows: 

  • 98% of those murdered globally were trans women or trans feminine people;
  • 62% of murdered trans people whose occupation is known were sex workers;
  • 38% of the murders took place on the street and 22% in their own residence;
  • The average age of those murdered is 31 years old; the youngest being 15 years old.

In Malaysia, at least 2 cases of murder of trans women were reported between November 2019 and October 2020:

May/June 2020 – a trans woman from Indonesia was found dead in her room after she went missing for a few days. Her neighbours noticed the odor of her decomposing body and notified the police. She was allegedly murdered by her boyfriend, who is also a foreigner. 

June 2020 – a young trans woman in Johor Bahru was found dead in her home after her friends contacted her house owner as she was ‘missing ‘ for a few days. The case was investigated by the police. The outcome of the case is unknown. 

These are some key cases and trends of violence against trans women that we have documented in 2020:

  1. Violence by family members. In January 2020, a young trans woman’s plea for help circulated in WhatsApp groups and social media. She was physically assaulted and imprisoned in her house by her family members. The police, who had initially made a home visit reportedly threatened to arrest and beat up the victim if she continues to be herself. They advised her to listen to the family members. Following some interventions by human rights groups, the police rescued the young trans woman. 
  1. Violence from members of the public. In February 2020, three cases of physical assaults by groups of men were reported – two cases occurred in Kedah and one case in Perak. The cases involve stabbing and physical assaults. In one of the cases in Kedah, the trans woman was assaulted by a group of men pretending to be police officers in a public place. In the case in Perak, a trans woman was assaulted with a metal rod. Of the 3 cases, only one of them lodged a police report. The outcomes of the case are unknown. The other two did not lodge a police report due to trauma and fear of self-incrimination. 
  1. Trans women sex workers are especially vulnerable to violence. A number of cases of assault by clients or people pretending to be clients have been reported all over Malaysia. The criminalisation of sex work and transgender women under the law create multiple barriers for trans women sex workers to access redress and report cases of violence. 
  1. The sexual objectification and stereotype of trans women as sex workers increases their vulnerable to sexual violence and harassment in public, private, online and other spaces. This includes among others, being stalked, harassed, molested, and flashed. In one case, a trans woman who owns a shop faced sexual harassment and violence by multiple men who visit her shop. In another case, a man broke into a trans woman’s house multiple times to coerce her into having sex with him. She eventually moved to a different state to escape the harassment. Both women did not report the cases due to personal previous negative experience with the police when lodging police reports, fear of victim blaming, lack of confidence in the police, among others.
  1. Trans women are vulnerable to doxxing and having their photos being used for online scams. In several cases, trans women have been confronted by strangers who were affected by the scam with hostility, increasing concerns of violence. 

Trans and gender diverse people are also hard hit by the Covid-19 pandemic. Aside from being disproportionately affected economically, many trans and gender diverse living with unaccepting family members are vulnerable to violence and increased mental health issues. SEED Malaysia observes an increase in trans women seeking shelter due to violence and lack of acceptance by family members.

Our documentation shows while trans and gender diverse persons face multiple forms of violence, most cases are not reported. Many trans women, especially sex workers lack access to justice due to the multiple forms of criminalisation under the laws, state policies that promote ‘rehabilitation’, and the increasing social stigma, perception and attitudes towards transgender people. 

In addition, previous negative and traumatic experiences with the police and state officials deter trans and gender diverse persons from seeking support and assistance. As a result, these violence that could have been prevented, are prolonged with impunity and remain invisible. Further, trans and gender diverse persons are burdened to resolve the violence and violations that they face on their own, deepening their marginalisation.

The sense of marginalisation, neglect, and lack of security and safety experienced by trans and gender diverse persons is further aggravated by exclusionary, non evidence and rights based statements by state actors. In line with the government’s vision of shared prosperity and commitment to leave no one behind, we recommend:

  1. Human rights and gender sensitisation training for police officers and government staff to reduce stigma and mistreatment against trans and gender diverse persons. 
  2. Cases of crimes against trans and gender diverse persons are currently recorded based on their gender identity, instead of according to the assigned identity on the national registration identity card (NRIC). As a result, there is a lack of documentation and analysis of cases of crimes against trans and gender diverse persons. 
  3. Allow trans and gender persons to change their gender marker on their legal documents
  4. The government to implement the CEDAW Concluding Observation in relation to trans women, which include: 
    • Adopt anti-bullying policies based on alternative strategies to address bullying, such as counselling services and positive discipline, and undertake awareness-raising measures to foster equal rights for LBTI students;
    • Amend all laws which discriminate against LBTI women, including the provisions of the Penal Code and Syariah laws that criminalise same-sex relations between women and ‘cross-dressing’;
    • Apply a policy of zero-tolerance with regard to discrimination and violence against LBTI women, including by prosecuting and adequately punishing perpetrators;
    • Expedite measures to discontinue all policies and activities which aim to “correct” or “rehabilitate” LBTI women.

download & share these Transgender Day of Remembrance (TDoR) visuals

In conjunction with Transgender Day of Remembrance (TDOR) on 20 November 2019, we commemorate the lives of trans and gender diverse persons lost to hate crimes and anti-transgender violence.

This year, at least 2 cases of murder of trans women were reported and many cases of hate crimes were documented in Malaysia. Globally, 350 trans and gender-diverse people registered murdered between 1 October 2019 and 30 September 2020. Of which,

  • 98% of those murdered globally were trans women or trans feminine people;
  • 62% of murdered trans people whose occupation is known were sex workers

Together we can end violence against trans and gender diverse persons in Malaysia and globally. We encourage you to download and share these visuals via social media or other platforms with your friends and family members to help raise awareness regarding the violence experienced by trans and gender diverse people.

TDoR visuals in BM

TDoR visuals in English

Respect trans women & end all prosecution against them

We are deeply concerned by a raid of a birthday party by the Kedah Islamic Department on 27 October 2020, where 30 transgender women attendees of the 100 attendees were singled out and given notice to report back at the Kedah Islamic Department on separate dates to be investigated under Section 26, which penalises ‘male persons wearing female attire in a public place’.

The organiser, who was celebrating his birthday, was also handed a notice to report back to the department to be investigated under Section 31 for ‘encouraging vice’. 

The raid also resulted in the private event being abruptly ended due to instructions by the state Islamic Department. The raid was carried out with the police, and news reports suggest that some media outlets were also present at the raid.

Following the constitutional review of Section 66 of the Negeri Sembilan Syariah Criminal Offences Enactment in 2015, there has been a significant reduction of cases of arrest under the ‘posing as a man’ state enactments based on our collective monitoring. However, we have observed a resurgence  of raids and arrests of transgender women in the last year. In most cases, the raids are a result of an alleged ‘tip-off’ or complaint, and the trans women are mostly subjected to ‘counselling’. This is a concerning trend.

Trans women are women & gender is diverse

First and foremost, trans women are not pretending, posing or acting as women. They are women, and as such express themselves in a way that is authentic and representative of who they are and their identity. There is countless evidence in history, science and other fields that clearly show the existence of gender diversity through the ages and that gender diversity is a normal occurrence in life.

As such, arresting and subjecting transgender women to counselling or any punishment or correction because of their gender identity and gender expression is deeply unnecessary and is a gross violation of human rights. 

While compliance with even the Standard Operating Procedures by the arresting agency is imperative, our fundamental concern is with the very act of arresting, summoning, investigating or prosecuting trans women based on their gender identity and gender expression. These actions have a wide-ranging impact and a chilling effect on the rights of transgender women, in particular, their right to live with dignity, restriction of public participation, access to social and cultural life, and right to privacy, among others.

Inconsistencies of Section 26 of the Kedah Syariah Criminal Offences Enactment and similar laws with the Federal Constitution

Section 26 of the Kedah Syariah Criminal Offences Enactment and similar laws that prohibit non-cisnormative gender identity and gender expression violate multiple fundamental rights guaranteed under the Federal Constitution and continue to arbitrarily prosecute transgender women for being who they are.

We recall the landmark Court of Appeal’s decision on Section 66 of the Negeri Sembilan Syariah Criminal Offences Enactment. Section 26 of the Kedah Syariah Criminal Enactment is worded similarly as the previous version of Section 66 of the Negeri Sembilan Enactment. In the decision, which was later set aside by the Federal Court on procedural grounds, the Court of Appeal found Section 66 to be inconsistent with the following articles in the Federal Constitution:

–     Article 5 safeguards the rights to personal liberties, including the rights of trans women to live with dignity. The court agreed that ‘the existence of a law that punishes the gender expression of transsexuals (transgender persons) … directly affects … right to live with dignity, guaranteed by Art. 5(1), by depriving them of their value and worth as members of our society.’

–       Article 8 (1) and (2) guarantees equality before the law and non-discrimination, in particular gender-based discrimination. The raid in Kedah clearly shows that trans women do not enjoy equality before the law, as only the transgender women attendees were issued the notice for an investigation on a later date.

–       Article 9 guarantees freedom of movement

–       Article 10 guarantees the right to speech and assembly. In the decision, the Court noted that freedom of expression includes the way we dress or our gender expression.

We are also deeply concerned by the investigation of the organiser for ‘encouraging vice’ and the instructions by the Kedah Islamic Department to end the event seemingly due to the inclusion and attendance of transgender women. This is a dangerous trend as it punishes event organisers, allies or people for being inclusive of transgender women. It further perpetuates the harmful stereotypes of trans women being deviants, sinners and criminals, leaving no room for social integration of transgender women in society. The state action is counter-productive to building an inclusive, safe and equal society.

We call for the Kedah Islamic Department to drop the investigation, and cease all forms of prosecution of transgender women. The state must acknowledge transgender women as autonomous and equal members of society, and dismantle prejudice, stereotypes and misinformation about transgender people.

Unethical and bias media reporting

We are also deeply disappointed by the sensational reports of the raid by Harian Metro and New Straits Times (NST). The title of the NST article which is a translation of the Harian Metro article, is degrading and sensational. The title essentially mocks the identity of transgender women, and implies that they are ‘distressed men’. We strongly recommend NST to amend the title of the article. 

The Harian Metro article and video report not only misgendered trans women multiple times, but also contained bias, disrespectful and inaccurate statements, language and title. For example, the article reinforces the notion that trans women deserve the consequences for expressing themselves. The article overlooked the unequal power dynamics between the state and transgender women, and the systemic impact of the laws that criminalise transgender people.  

The report only contained quotes by the state Islamic Department, which uses a pejorative term for transgender women. The article could have also featured voices of the transgender women attendees or transgender human rights groups in order to provide different perspectives on the raid.

Harian Metro was also reportedly at the raid. We have many questions surrounding the presence of the media at the raid, including how did the media learn about the raid, and what was their intention of covering the raid?

We have contacted Harian Metro to make changes to the article in order to remove the prejudicial and sensational elements, and maintain a factual, ethical and non-bias reporting. However, no changes have been made so far, and we have not received a reply from Harian Metro.

Endorsed by

  1. Justice for Sisters 
  2. SEED Malaysia 
  3. Pelangi Campaign 
  4. People Like Us Support ourselves (PLUsos)   
  5. Queer Lapis 
  6. Tenaganita 
  7. Amnesty International Malaysia 
  8. Sisters in Islam (SIS)
  9. Women’s Aid Organisation (WAO)
  10. Sarawak Women For Women Society (SWWS)
  11. Sabah Human Rights Center 
  12. Society for Equality, Respect And Trust for All (SERATA) 
  13. Sabah Women Action Resource Group (SAWO)
  14. All Women’s Action Society (AWAM)
  15. Center for Independent Journalism (CIJ)
  16. Persatuan Sahabat Wanita Selangor (PSWS)
  17. Pertubuhan Kesihatan Dan Kebajikan Umum (PPKUM)

Pembetulan bagi artikel Harian Metro

Pembetulan 1

Padah berlagak wanita untuk ditukar kerana bahasa yang digunakan mempunyai konotasi menyalahkan dan menghukum wanita transgender kerana mengekspresikan diri mereka. Tajuk ini tidak mengambil kira undang-undang yang menjenayahkan wanita transgender dan kesannya, serta pematuhan undang-undang tersebut dengan Perlembagaan Persekutuan dan undang-undang hak asasi manusia antarabangsa.

Cadangan

–       Wanita transgender disiasat atas alasan mengekspresikan diri mereka

–       Ekspresi wanita transgender disekat undang-undang

Pembetulan 2

Lagak mereka seperti wanita, namun hakikatnya mereka adalah lelaki. Itu tindakan sekumpulan individu yang menyertai majlis sambutan hari jadi yang diadakan di sebuah hotel di Bandar Darulaman di sini, malam tadi.

Bagaimanapun, semua 30 lelaki dipercayai pondan itu hanya mampu terkedu apabila premis itu diserbu anggota penguat kuasa Jabatan Agama Islam Kedah (JAIK).

Sebuah majlis sambutan hari jadi yang dihadiri oleh 30 individu transgender di sebuah hotel di Bandar Darulaman di sini, malam tadi diserbu anggota penguat kuasa Jabatan Agama Islam Kedah (JAIK).

Pembetulan 3

Kesemua pondan berusia antara 20-an hingga 40-an itu didapati berpakaian wanita seperti gaun dan berbaju kebaya.

Kesemua wanita transgender berusia antara 20-an hingga 40-an .

Pembetulan 4

“Bagaimanapun, kami meminta mereka yang tidak berkenaan bersurai dan hasil pemeriksaan mendapati, terdapat 30 lelaki yang berpakaian wanita dan disyaki pondan.

“Bagaimanapun, kami meminta mereka yang tidak berkenaan bersurai dan hasil pemeriksaan mendapati, terdapat 30 lelaki yang berpakaian wanita dan disyaki “pondan”*.

*pondan ialah istilah yang mempunyai konotasi negatif yang digunakan untuk merujuk kepada golongan wanita transgender atau lelaki gay, biseksual dan queer. Istilah ini tidak sesuai digunakan untuk terhadap golongan wanita transgender kerana ianya merendahkan martabat diri mereka. Istilah yang lebih sesuai dan menghormati identiti mereka ialah wanita transgender atau mak nyah.

Pembetulan 5

Dalam pada itu, Radzi berkata, kesemua pondan berkenaan didapati menetap sekitar daerah ini, selain ada yang berasal dari Selangor dan negeri lain.

Dalam pada itu, Radzi berkata, kesemua wanita transgender berkenaan didapati menetap sekitar daerah ini, selain ada yang berasal dari Selangor dan negeri lain.

LGBTIQ: We are the experts of our lives

End all harmful policies and practices towards LGBTIQ persons

We, the undersigned, are concerned by the perpetuation of harmful policies and practices on lesbian, gay, bisexual, transgender and queer (LGBTQ) persons and related issues by the Prime Minister’s Department (religion).

These policies and practices, a continuation of those introduced by the previous administration, are centered on prevention; rehabilitation or treatment; and enforcement of laws. Not only are they non-evidence- and non-rights-based, but these policies and practices are also harmful and result in adverse impacts, which further exacerbate the discrimination, violence, victimization and marginalization experienced by LGBTIQ persons. More importantly, present practices and policies fail to address the urgent and actual issues faced by LGBTIQ persons: criminalization, discrimination, marginalization, and hate crimes and violence.

In several statements made by Dato’ Mujahid Yusof Rawa, Minister in the Prime Minister’s Department (religion), he emphasized that as citizens LGBTIQ persons are entitled to their constitutional rights, which must be protected. Despite this affirmation by the Minister, LGBTIQ persons have yet to enjoy the full effects of these rights.

Post GE-14, LGBTIQ persons have been subjected to multiple forms of discrimination and violence: This includes, among other things:

  • doxxing or dissemination of personal information or photos without consent;
  • hateful and violent messages and threats;
  • boycott campaigns;
  • increased vulnerability of being reported to enforcement agencies;
  • increased threats of prosecution and legal action,
  • vilification and demonization in the media.

People associated with LGBTIQ persons have also been subjected to discrimination, intimidation and violence, including hateful and violent messages for supporting the human rights of LGBTIQ persons, doxxing and being reported to enforcement agencies. There have been no serious efforts to address the wave of homophobia and transphobia post GE-14.

Rehabilitation, treatment and efforts to change sexual orientation and gender identity

The existing approach used by the Prime Minister’s Department (religion) is based on a three-pronged strategy: prevention; rehabilitation or treatment; and enforcement of laws. Rehabilitation, treatment or efforts to change sexual orientation and gender identity of LGBTQ persons are widely discredited by global health organizations and human rights bodies due to its harmful and long-term impacts.[i]

In 2009, the American Psychological Association (APA) issued a report concluding that the risks of conversion therapy practices include: depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidal tendencies, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, amongst others.

A Report of the Special Rapporteur on torture and other cruel, inhumane or degrading treatment or punishment released in 2013 views conversion or reparative therapies as a form of torture and explicitly calls ‘all States to repeal any law allowing intrusive and irreversible treatments, including forced genital-normalizing surgery, involuntary sterilization, unethical experimentation, medical display, “reparative therapies” or “conversion therapies”, when enforced or administered without the free and informed consent of the person concerned.”[ii]

In June 2018, the World Health Organisation’s (WHO) eleventh revision of the International Classification of Diseases (ICD-11) removed of all trans-related diagnoses from the mental disorders chapter as ‘evidence is now clear that it is not a mental disorder, and indeed classifying it in this can cause enormous stigma for people who are transgender. There remain significant health care needs that can best be met if the condition is coded under the ICD.’ Gender incongruence is now reclassified under sexual health conditions in the ICD-11.[iii] Homosexuality was removed as a mental disorder in 1970 from the ICD.

Some countries are also moving in the direction to ban conversion therapy, as it is a harmful practice. Malta[iv][v] and parts of Canada[vi] and the United States[vii] have banned or regulated the practice of conversion therapy.

We believe that people should be able to understand and come into their gender identity and sexual orientation in an affirming environment. Should people choose to be heterosexual, it should be based on self determination, and not compulsion, sense of gratitude, due to incentives, amongst others. Plenty of evidence continues to affirm that gender identity and sexual orientation is a spectrum, which includes heterosexual and cisgender persons. The spectrum does not erase identities, instead it affirms and celebrates the diversity of humanity.

We are also concerned by the so-called “experts” engaged by the Prime Minister’s Department (religion). We emphasize that LGBT persons are the experts of our lives. Policies regarding LGBTIQ persons should be made in consultation with LGBTIQ persons, who are directly affected by these policies. We are concerned that the government is engaging with groups that promote the rehabilitation and criminalization of LGBTQ persons, instead of groups that uphold the human rights of LGBTIQ persons.

Impact of the government current policies and practices

The government’s overall approach towards LGBTIQ persons will result in negative socio-economic and health impacts and be costly not only for LGBTIQ persons, but also the government. This includes economic marginalization, increased health risks, migration and brain drain, increased violence and hate crime, amongst others.

Decriminalization and elimination of discrimination have been proven to be effective strategies all around and have had positive impacts in multiple areas. This includes increased quality of life, reduction of HIV prevalence rates,[viii] boost to the economy,[ix] amongst other things. The current uninformed practices and policies leave behind LGBTIQ persons, thereby hindering Malaysia’s  ability to achieve the Sustainable Development Goals.

As stated by Dato’ Mujahid, LGBTIQ persons are citizens and their constitutional rights must be protected. As such, LGBTIQ persons have the right to live dignity and to be free from all forms of discrimination, harm and violence.

These policies and practices violate Article 5 of the Federal Constitution, which guarantee a person’s personal liberty and the right to live with dignity; Article 8, which prohibits gender based discrimination; Article 10, which protects freedom of speech, assembly and association; and Article 9 on freedom of movement.

In 2018, the CEDAW Committee in its Concluding Observations to Malaysia recommended that Malaysia “expedite measures to discontinue all policies and activities, which aim to ‘correct’ or ‘rehabilitate’ LBTI women” and “amend all laws which discriminate against LBTI women, including the provisions of the Penal Code and Syariah laws that criminalize same-sex relations between women and cross-dressing.”[x]

We call on the government to:

  1. End the allocation of funds to harmful and non-evidence- and non-rights-based programmes, including rehabilitation and treatment programmes that target LGBTIQ persons and seminars that increase misinformation regarding LGBTIQ persons;
  2. End implementation of the ‘Pelan Tindakan Menangani Gejala Sosial Perlakuan (LGBT)’,[xi] a 5-year government action plan to address social ills (LGBT);
  3. Meaningfully engage with human rights-based LGBTIQ groups of diverse backgrounds, including ethnicity and religion;
  4. Establish a working group between the Prime Minister’s Department (religion) and human rights-based LGBTIQ groups to ensure the assistance provided to transgender persons are not conditional, and that government programmes are evidence- and rights-based to address the systemic discrimination experienced  by LGBTIQ persons.

This is a joint statement by

  1. Justice for Sisters
  2. Diversity
  3. PLUsos
  4. PLUHO
  5. QUASSA
  6. PELANGI Campaign
  7. Transmen of Malaysia
  8. PT Foundation
  9. Malaysian Atheists and Secular Humanists (MASH)
  10. The Malaysian Feminist (TMF)
  11. Center for independent Journalism (CIJ)

 

References

[i] WPA Position Statement on Gender Identity and Same-Sex Orientation, Attraction, and Behaviours http://www.wpanet.org/detail.php?section_id=7&content_id=1807

[ii] The Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf

[iii] ICD-11, Classifying disease to map the way we live and die http://www.who.int/health-topics/international-classification-of-diseases

[iv] PRESS RELEASE BY THE MINISTRY FOR SOCIAL DIALOGUE, CONSUMER AFFAIRS AND CIVIL LIBERTIES: Another step forward in civil liberties…Malta criminalises conversion practices and depathologises sexual orientation, gender identity and gender expression https://www.gov.mt/en/Government/Press%20Releases/Pages/2016/December/05/pr162780.aspx,

[v] AFFIRMATION OF SEXUAL ORIENTATION, GENDER IDENTITY AND GENDER EXPRESSION ACT http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=12610&l=1

[vi] Affirming Sexual Orientation and Gender Identity Act, 2015 https://www.ontario.ca/laws/statute/S15018

[vii] Conversion therapy and youth https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-LGBT-Youth-Jan-2018.pdf

[viii] criminalising homosexuality and public health: adverse impacts on the prevention and treatment of HIV and AIDS http://www.humandignitytrust.org/uploaded/Library/Other_Material/Criminalising_Homosexuality_and_Public_Health.pdf

[ix] the relationship between LGBT inclusion and economic development: an analysis of emerging economies, November 2014 https://williamsinstitute.law.ucla.edu/wp-content/uploads/lgbt-inclusion-and-development-november-2014.pdf

[x] Concluding observations on the combined third to fifth periodic reports of Malaysia https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/MYS/CO/3-5&Lang=En

[xi] https://www.facebook.com/MyJakimMalaysia/posts/1588691407848089, https://islam.gov.my/berita-semasa/34-bahagian-keluarga-sosial-komuniti/48-pelan-tindakan-menangani-gejala-sosial-kecelaruan-gender

 

The right to be

Posted on 12 September 2012 – 07:36pm
Petra Gimbad

RECENTLY, cases involving minors purportedly giving consent to sexual intercourse have challenged Malaysian law, which clearly states that statutory rape is a crime. One would think that common sense dictates our values. With the recent case of the four transwomen who were arrested for wearing women’s clothing, any right-thinking taxpayer would agree that upholding children’s rights and respecting girls and women should take precedence over arresting transwomen simply for their choice of dress.

Currently, transgender rights stand practically non-existent in Malaysia. In relation to a case awaiting judgment in the Negri Sembilan High Court as reported in “Our right to cross-dress” (Aug 31) where four transwomen were criminalised for cross-dressing, this is shocking in a country that prides itself for holding Asian values.

Following the case, a few friends and I had a chat about transgender rights.

“How is it that being a transgender is a choice, when these ‘men’ choose to wear dresses and eat hormones?” a friend asked. She was sympathetic and genuinely confused.

One of us was a transwoman. She responded with gentleness. “If it were a choice, I would not have to wear a dress or make-up. I could choose not to, because society discriminates against me. When I walk home, I am bullied by men when they realise I am a transwoman. Some of my friends are molested frequently or were raped.

“It is expensive for me to buy hormones. Surgery is expensive and painful. Some of my friends do it to the point of removing their genitalia, because their boyfriends want them to. They then suffer when their boyfriends leave – despite the fact that they went through all that pain because their boyfriends asked them to in the first place.”

Colleagues and I have been fortunate to work and build friendships with inspiring transgender individuals through human rights activism, journalism and volunteer work. These contributing members pose no threat compared to abusers who commit domestic violence and marital rape. Such offenders get away because society insists on thinking of these issues as private matters instead of public ones: a crime may happen within a person’s four walls. If it is a crime, it should be and is, in fact, a public concern.

In contrast, how a person chooses to dress – a private matter – has become a public matter that is criminalised. Society needs to get its priorities straight, given that dealing with physical and sexual abuse with limited resources, is a real problem in this country. One cannot but feel some empathy for the police in relation to their workload and even despair at the thought that institutionally, there are fewer hands than what is needed to bring the real criminals to justice.

A couple of the transgenders whom colleagues and I worked with are trained scientists and academics with opportunities to make a living without turning to illegal and life-threatening work, provided that they do not experience the sort of discrimination that bars them from working in professions of choice through meritocracy. Every human being, regardless of identity or sexual orientation, wants the freedom to be able to choose the work they love.

The four transwomen awaiting a decision in the Negri Sembilan courts are make-up artists. Given opportunities, it is possible for transgenders to legitimately maintain some financial independence, but it is met with general disbelief as all transgenders tend to be tarred with the same brush and portrayed in the media as immoral, lusty and suspicious for engaging in illegal activities. This is a perspective that is sadly perpetuated both inside and outside of Malaysia.

It is unfair and undeserving when transgenders are portrayed in such a negative light. Not only does this attract further discrimination, but it also negates the best of what Malaysian society is. Where transwomen in some kampongs are embraced by their communities and are therefore able to run restaurants and make brides beautiful for their wedding day, these villages offer proof that true acceptance and diversity still exists in Malaysia. Such practised diversity should unite, rather than create conflict and opportunities for antagonism in this country.

Many transgenders I know pray five times a day or according to their faith, in order to become better people, even when suffering is inflicted by the people around them, including the people they love. Many who have lost their faith because of abuse, continue finding hope in practising patience and kindness in their everyday lives or by working in transgender activism as a practical means of caring for their friends in the same community.

With the next hearing in October, much rests on the public. How much do we care about our identity as Malaysians, if we pride ourselves on our tolerance, diversity and intelligence? Are we willing to support our judges and public servants in ensuring a compassionate and just society for all? Only time will tell.

The writer is completing her masters thesis on street children. Comment: letters@thesundaily.com