Violence against trans women increase following the decision by the Federal Court

For immediate release

26 October 2015

Justice for Sisters strongly criticizes and deplores the arrests that have taken place following the decision by the Federal Court on Section 66 on 8 October 2015. Since the decision by the Federal Court that set aside two court orders, and reinstated Section 66, raids and arrests have taken place in Kuala Lumpur, Terengganu and Penang, triggering a wave of fear among the transgender community to freely move.

Kuala Lumpur

On 12 October 2015, three trans women from Seremban were arrested while shopping in Brickfields, Kuala Lumpur. The three were approached by a man requesting sexual services, a common assumption that all trans women are willing to provide sexual services in exchange for money or otherwise. They refused, and the man later accused them of stealing his wallet, which actually fell on the ground and was immediately found. The police arrested the trans women anyway, and detained them at the Dang Wangi police station. The three were remanded for three days under Section 380 of the penal code – Theft in dwelling house, etc.[1] The three spent an extra day in detention due to a public holiday. The women were allegedly asked to remove their clothes and were subjected to further humiliation in detention. There were also reports of physical assault. The three women are Indian.

On 15 October 2015, 15 trans women of various nationalities were arrested in a raid in Bukit Bintang, Pudu and Chow Kit, Kuala Lumpur. Four of them were charged in court under Section 28, which penalizes male persons who pose as women or wear women’s attire for immoral purposes. The four, two of Indonesian nationality, were fined RM 990. According to Sinar Harian’s article “Berpakaian wanita; Mak Nyah kena denda” the four appeared in court in JAWI’s gray lockup garbs with shaved heads following the arrest six days ago. The accompanying photo in the article further proves that their hair was shaved in detention. We strongly condemn degrading treatment of detainees, and all forms of corrective measures of transgender and gender non-conforming persons by the state. We emphasize that changing someone’s appearance against their will, including shaving someone’s head, is a form of torture. The state’s role is to promote and protect the rights of all people, regardless of gender identity.

The arrests and detention of the trans women pose serious questions regarding JAWI’s jurisdiction in relation to arrest and detention. We demand answers to the following questions:

  1. Why were the trans women detained for six days? And where were they detained?
  2. Do the religious authorities have jurisdiction to carry out arrests and detain people?
  3. Why were their heads shaven if they were only being detained, and had not been convicted in the court of law?

The remaining 11 were released on bail at the JAWI office – seven on 15 October, four on 16 October 2015. However, JAWI made it particularly challenging for the trans women to be released. They imposed the condition that only cisgender men (men whose lived experience matches the sex and gender they were assigned at birth) could post bail for the trans women. As a result, some women were released on 16 October, as they were not able to find a cisgender man to bail them. It is important to note that the women were not informed of their rights and underwent many human rights violations in relation to access to justice, rights to redress and remedies.

Terengganu

On 21 October 2015, three trans women of Filipino nationality were arrested in Terengganu in a raid by the immigration department. In Sinar Harian’s article, ‘Taktik pondan tawar seks melaui WeChat terbongkar’, the Immigration Department had solicited sexual services from the women as undercover clients. The three are currently detained at the Ajil immigration depot, and will be investigated under Regulation 39 (b) Immigration Regulations 1963, which carries a fine not exceeding RM 1,000 or prison for not exceeding six months or both, if found guilty.

Penang

Raids have been carried out in Penang. However, no arrests have taken place.

Negeri Sembilan

In Negeri Sembilan, harassment and intimidation began on the day that the decision was delivered. The religious authorities warned some trans women that they would be arrested if they saw them again in the area. We deplore the intimidation and harassment by the authorities towards the women, as these actions are making people feel unsafe in their own homes and to move around freely.

Section 66 and similar laws that criminalize one’s gender identity and gender expression make transgender or trans women, or mak nyah, regardless of religious background, vulnerable to arbitrary arrests and violence. However, it is important to note that transgender sex workers are most vulnerable to arrests and violence because of their visibility. Stigmatization and criminalization of sex work under Malaysian law further make trans women vulnerable to violence and hate crime, and further create barriers to access justice and due processes.

However, it is important to understand that sex work is also a form of work, and the criminalization of sex work further contributes to violence against sex workers, creates barriers for sex workers to exercise their rights to due process and remedies, and disallow work with dignity.

We further condemn the shaming of sex workers in the media for making a living. While it is a known fact that arrests increase at the end of the year, we completely deplore the use of sex work to shame and stereotype transgender women.

The reality is that transgender persons face adverse challenges and barriers to access education and employment opportunities. Often, transgender persons face extreme hostility in schools and educational institutions, from gender binary policies that disallow children who are transgender or gender non-conforming to express their authentic gender identity and true self, to bullying and violence from peers and administrators. This often results in transgender students performing poorly in schools or dropping out altogether, as the environment is not conducive for learning.

Further, employers often prioritize gender identity over qualification, competency and expertise. Often, trans women are rejected from seeking employment and employers also impose policies that disallow trans people to express their authentic gender identity and gender expression. Given this hostile environment, sex work represents one of few opportunities for trans women to support themselves.

We further criticize some Malay-language mainstream media for using language that blatantly dehumanizes and degrades trans women. Since the decision at the Federal Court, some Malay-language media especially have been using language that is insensitive, ignorant, and plain rude to describe trans women. We are outraged and appalled by the use of language such as ‘wanita jadian’ and ‘pondan’, and the sensationalist reporting. We are also extremely surprised by the ignorance and insensitivity displayed by Malay-language media, especially in an age where transgender people and issues are visible and heavily discussed in the media everywhere. The Malay-language media must adopt ethical reporting and treat transgender persons with respect.

We call on all people to stand up and speak up against violence against transgender persons.

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For further details please contact justiceforsisters@gmail.com

[1] Theft in dwelling house, etc.
Section 380: Whoever commits theft in any building, tent, or vessel, which building, tent, or vessel is used as a human dwelling, or for the custody of property, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine, and for a second or subsequent offence, shall be punished with imprisonment and shall also be liable to fine or to whipping.

statement: appeal at the federal court

Justice for Sisters (8 Oct 2015)

The Federal Court in the appeal of Section 66 Court of Appeal’s progressive ruling dismissed the case on technical grounds, and set aside the two orders by the Negeri Sembilan High Court and Court of Appeal to hear the application. The Federal Court was of the view that the trans women should have sought permission (leave) of the Federal Court before instituting their constitutional review for breach of their fundamental rights.

Justice for Sisters is disappointed with the outcome at the Federal Court today. However, we applaud the trans community for all their efforts and courage in challenging the constitutionality of Section 66, which began in 2011. We are extremely proud of the trans community in increasing public awareness and visibility regarding the fundamental human rights violations faced by trans people in Malaysia. This is an achievement that can never be erased.

Laws to stereotypes: Obstacles faced by transgender persons in Malaysia

By Susan Tam March 25, 2015 / 11:00 MYT
After speaking to a trans man and trans woman recently about the painful experiences they face, we took a look at how the transgender group copes in Malaysia, by understanding the legal ramifications and social norms linked to life as a transgender.

Global human rights organisation Human Rights Watch notes that transgender is a term for anyone whose sex assigned to them at birth do not conform to their lived or perceived gender, which is a gender they are more comfortable in expressing.

1. Unclear laws for gender change

Malaysian laws do not directly allow for transgenders to have their gender markers legally changed on their identification cards or passports.  Judges in Malaysia will use their discretion to rule cases that involve transgenders applying for alteration of the sex marker on their MyKads.  In 2005, two cases of the same nature received different judgements.  Wong Chiou Yong’s application was denied, but in J.G versus the National Registration Department, the request was allowed.  There was no mention of the option to change a gender field under the Birth and Deaths Registration Act 1957, and while corrections were allowed under the National Registration Act 1959, no details were given as to what detail people can alter on their MyKad.  On whether transgenders can change their name or gender markers, it was up to the courts to interpret this law.

2. Muslim transgenders face Syariah law penalties

Under most enactments under Syariah laws, men are not allowed to dress as women, this applies to some states of Malaysia. In 1982, the National Fatwa Council prohibited Muslims from undergoing sex reassignment surgery (SRS) and Muslim medical institutions from providing such operations.

Transgender men face issues too as seven states had fatwas or decrees issued against ‘pengkid’, a term to describe tomboys or masculine women.  These decrees state that women who have masculine appearance or male sexual instincts are not allowed under Islam.

Added to this legal challenge, under Section 28 of the Syariah Criminal Offences Act 1997, Muslim transgenders can be charged for ‘immoral behaviour’.  If found guilty, they are fined no more than RM1,000 or be jailed for no longer than a year.  Or face both sentences.

But, a recent landmark court decision may open the way for change in the legal status of Muslim transgenders.  Last November’s ruling in Negeri Sembilan allowed men to dress as women, as the Court of Appeal ruled that it was unconstitutional to penalise Muslim men who were suffering from a medical condition called gender identity disorder. 

3. Non-muslim transgenders face complications too

We learnt from a Human Rights Watch report on transgenders that although non-Muslims are free from the Syariah law jurisdiction, they face other obstacles such as having difficulties finding a medical institution to help them with sex reassignment surgeries.   They too can be charged under civil law, under Section 21 of the Minor Offences Act 1955.  They can be penalised for ‘indecent behaviour’ and be fined from RM25 to RM50.  Since there is no clear definition of what constitutes indecent behaviour, it is up to the police to decide what indecent means.

4. Getting married

Same sex unions are not allow under civil law or Syariah law in Malaysia, a country where sodomy is illegal. In 2005, the issues of transgender marriage in Malaysia was brought up when Chinese transgender Jessie Chung married Joshua Beh in Kuching, Sarawak.  Chung was born male, and went through three surgeries to become a woman.  The authorities declared their union invalid, and some Christian groups denounced it.  But the couple went ahead with their ceremony, getting their union blessed by three pastors in front of an audience of 800 people.

5. Festivals banned

Along with the laundry list of legal obstacles facing this community, campaigns and public events featuring the lesbian, gay and transgender communities were recently prohibited.  Seksualiti Merdeka or the Sexuality Independence festival was banned by the police in 2011, because it constituted a ‘threat to public order.’  The festival went ahead in 2008 and 2009, but was stopped in 2011.  Workshops, talks, musical and theatre performances on the diversity of this community were planned to educate the public and celebrate the rights of these groups.

6. Facing problems getting work

We spoke to local NGO Justice for Sisters who pointed out that transgenders are often reduced to details about their sex while their qualifications, capabilities and capacity become irrelevant. This makes it difficult for them to find work. Transgenders also face sexual harassment and sexism at the workplace, including restriction to use toilet that reflects their gender.   The NGO told us that the laws that criminalise transgenders worsens their situation, as employers do not want to risk hiring someone that could possibly be arrested and imprisoned, as that could hurt the brand, image or productivity of the company.

7. Raising a family

Justice for Sisters feel that adoption laws works on the assumption that women are better at child rearing, reinforcing binary gender roles and mythology of maternal instincts and that of the construct of family.  The family structure, despite it changing today, still remains binary and heteronormative. This means that it involves parents of two different genders and children of clearly defined and socially accepted gender or sexual orientation with no disabilities.  These social constructs make it hard for transgenders to be seen as good parents, let alone parents.

Transgenders are often viewed, due to lack of information and awareness , as immoral and a bad influence to children.  The NGO maintains that transgenders’ desires to reproduce or build a family has nothing to do with gender or cannot be reduced to gender or genitals. People regardless of gender identity have the desire to reproduce and build a family.

To sum up, Justice for Sisters provides these approaches as the way forward for society to understand the community:

a. The government must have meaningful dialogue with the transgender community, immediately stop all arrests and prosecution of transgender persons because of their gender identity.
b. Authorities must repeal laws that criminalise transgender, take all measures to increase access of transgenders in the education, healthcare and employment sectors, and change the attitude of the public services towards transgenders.
c. Non state actors, including the private sector needs to review employment policies and adopting ones that are transgender-friendly, while having a greater role in public education, by organising gender sensitization seminars at workplace.
d. Organising more public discussions regarding gender and social constructs, as well as have more spaces for transgenders to express themselves and be represented.
e. Media needs to increase positive representation of transgenders and not reduce transgenders to genitals and transitioning experiences, and play a greater role in public education.

Image credit: ​Afif Raiezal/The Malaysian Insider

http://kl.coconuts.co/2015/03/25/laws-stereotypes-obstacles-faced-transgenders-malaysia

Malaysia’s hostile position on sexual orientation and gender identity (SOGI) is bad for business

In the last few years, we have seen a vibrant global movement to understand and embrace people of diverse sexual orientations, gender identities and gender expressions in almost all sectors, from pop culture to business and politics. Laverne Cox’s TIME magazine cover was truly a historic moment, as it signified a shift in mainstream norms and attitudes towards transgender people, who have been marginalized for generations.

The transgender movement or the struggle of transgender persons for equality has been dubbed as the new civil rights movement, and rightly so. Even in 2014, transgender persons all around the world still suffer oppression and lack recognition as human beings with dignity and autonomy. This lack of recognition increases violence, impunity and discrimination towards transgender persons.

Globally, violence and discrimination towards transgender persons is all too common. All around the world, including Malaysia, transgender people still face rejection from family members and are often kicked out of their homes at a very young age. Young transgender persons also face severe bullying in school, which often goes ignored by school administrations and adults. Ultimately, many transgender students lose interest in education, perform poorly in school, or forced to drop out of school. Adult transgender persons also face a range of societal issues including the lack of employment opportunities, lack of access to much needed healthcare services. In addition, transgender persons are also arbitrarily criminalized, arrested, and imprisoned for their gender identity. This list of the deprivation of rights that transgender persons face goes on and on. Due to the insurmountable and systemic stigma and discrimination that transgender persons face, most transgender persons continue to be trapped in a vicious cycle of poverty.

November 20th is the global Transgender Day of Remembrance (TDOR). Annually on this day, we commemorate the lives of transgender people who were violently murdered in hate crimes. According to the Transgender European Union (TGEU), 226 killings of transgender persons because of hate crime had been reported worldwide between November 2013 and October 2014 alone. In total, since January 2008 the murders of 1,612 trans people have been reported, out of which, 138 killings of trans people have been reported in 16 Asian countries.

Recognizing the structural and systemic violence as well as discrimination that transgender and gender non-conforming people face, state and non-state actors alike are now taking active measures to promote and protect the rights of all and eliminate discrimination as much as possible, especially state sanctioned discrimination, such as discriminatory laws and policies. To this end, the United Nations (UN) launched a global campaign ‘Free & Equal’ to raise awareness and understanding regarding sexual orientation and gender identity as well as lesbian, gay, bisexual, transgender, intersex and queer persons (LGBTIQ). Further, many countries, including Argentina, Denmark, Malta and others have introduced legislations to allow transgender persons to change their name and gender markers in their official documents.

Discriminatory legislations and responses by the international community

In late 2014, Uganda introduced the anti-gay law, in which both LGBT and allies were criminalized. Under this draconian law, anyone who shelters or employs someone from the LGBT community too can be penalized.

In response to this anti-gay legislation, the World Bank President Jim Yong Kim in his editorial piece in the Washington Post cautioned that such discriminatory legislation towards LGBT persons “can hurt a country’s competitiveness by discouraging multinational companies from investing or locating their activities in those nations”. Following the statement in February 2014, the World Bank decided to postpone its financial aid, worth USD$90 million to Uganda. The law also drew flak from donor countries such as Denmark and Norway, who were ready to redirect aid away from the government to aid agencies.

Uganda’s Supreme Court struck down the law as null and void in August 2014.

Russia also introduced an anti-propaganda law in June 2013, in which any form of promotion of LGBT or ‘non traditional sexual relations’ content is prohibited amongst others. Following the enforcement of the law, a video emerged online of five assailants stripping and violently attacking a transgender person. More often than not, such discriminatory laws have the direct impact on people who visibly do not fit into the man/woman binary or gender norms, including transgender persons and gender non-conforming persons (‘effeminate’ men, ‘butch’ women, etc.).

The discriminatory law, coupled with heavy-handed suppression of human rights including the imprisonment of the members of Pussy Riot, drew sharp criticism from the international media and community.

In February 2014, Russia hosted the Winter Olympics in Sochi. Ban Ki Moon, the United Nations secretary general, condemned the attacks on the LGBT community in a speech ahead of the Winter Olympics in Sochi, “We must oppose the arrests, imprisonments and discriminatory restrictions they [LGBTI people] face.” Further, the UN consistently called for the repeal of this anti-LGBT legislation.

In the lead up to the games, many called for a boycott of the winter Olympics. The United States of America, Germany, France, Poland and the European Commission in protest chose not to send high-ranking officials to the opening ceremony because of the repeated attacks on human rights and the introduction of discriminatory legislations. Russia’s human rights violations have severed its ties with the United States, and caused the country to be isolated by a number of countries.

With mounting pressure from the civil society in Russia and the international community, Russia announced their willingness to take all required measures to prevent homophobic hate crimes and discrimination on the grounds of sexual orientation at the 24th UN Human Rights Council, while retaining the anti-propaganda legislation.

Following the campaign by the international community around the Winter Olympics, there is now a concerted effort to address discrimination and violence against LGBTIQ persons in and through sports. Consequently, the UN’s Human Rights Day in 2013 was themed “sport comes out against homophobia”.

Malaysia has announced its intention to bid to host the World Cup in 2026, an opportunity highly coveted by many nations across the world. FIFA has actively taken a part in addressing discrimination and violence on and off the pitch, and specifically bans discrimination based on sexual orientation and gender. In the last World Cup in Brazil, GLAAD and many other groups campaigned against violence and discrimination towards LGBTIQ persons in sports, with many athletes coming out to support the call for respect of all people regardless of sexual orientation and gender identity.

It is safe to say that Malaysia tries to position itself as a moderate Muslim country and a key player within the UN system as demonstrated by its multiple bids for positions in the Human Rights Council and the UN Security Council. Malaysia is currently a member of the UN Security Council. However, the state needs to realize that its policies and its extreme positions will come under greater scrutiny by the international community as it gains more visibility internationally.

‘I am Scared to be a Woman’, a Human Rights Watch report on human rights violations towards transgender persons in Malaysia, launched in September this year named Malaysia among the worst countries in the world for transgender person to live, for reasons including systematic abuses of arbitrary arrests, sexual assault and extortion by both religious authorities and the police. This reflects Prime Minister Najib Razak’s statement two years ago that the LGBT is a “deviant culture” that had no place in Malaysia.

With so much attention on violence and discrimination towards people of diverse sexual orientation and gender identity, including transgender persons, Malaysia needs to immediately and critically relook at its position on SOGI. As a nation striving towards high-income status, such a hostile position is just bad for business.

Justice for Sisters

Justice prevails for transwomen in Negeri Sembilan after years of violence and discrimination

Justice for Sisters is elated by the historic judgment by Justice Mohd Hishamudin Mohd Yunus, Justice Aziah Ali and Justice Lim Yee Lan that declared Section 66 of the Negeri Sembilan Syariah Enactment as unconstitutional with Article 5(1), 8(1), 8(2), 9(2) and 10 (1)(a). We applaud the judges for taking a bold step in protecting and promoting human rights of all people, regardless of gender identity and gender expression. We are excited by the positive and overarching impact that the judgment will have in the promotion and protection of human rights for all in Malaysia.

“This is indeed a joyous moment for the transgender community, especially the transgender community in Negeri Sembilan, as they have directly experienced the violent impact of Section 66. Section 66 has created severe trauma and distress to the community, as it was continuously used to harass, humiliate, suppress gender identity of transwomen and violate them in the most inhumane and uncompassionate ways. Justice for Sisters commends the resistance of the Negeri Sembilan sisters in leading this challenge for 4 years,” says thilaga of Justice for Sisters.

However, Section 66 is only one out 14 state syariah laws that criminalize gender identity and gender expression.

A survey conducted by Justice for Sisters found 37 out of 76 transwomen had been arrested because of their identity and attire. 23 out of the 37 transwomen had been arrested more than one time. 25 out of 37 transwomen who had been arrested had been subjected to physical, emotional and sexual violence by the state religious authorities, police and local municipal council. State authorities continue to act with impunity, as the law blatantly discriminates and violates the rights of transgender persons.

I am Scared to be a Woman, a report launched by the Human Rights Watch in 2014 further illustrates the multiple forms of violence and discrimination faced by transgender persons, including lack of access to employment, education, and the right to live with dignity, manifestations of the criminalization of gender identity.

We understand that while section 66 is now unconstitutional and void, it will take time to change the hearts and minds of people. However, we are encouraged by the positive changes in the media and solidarity by people regardless of gender identity and gender expression.

“Public education and awareness is key in changing public opinion and perception towards transgender persons. Justice for Sisters is happy to dialogue and have meaningful discussions with government agencies with our experts from the medical field to further explain issues pertaining to transgender persons,” says Nisha Ayub of Justice for Sisters.

We encourage all people to continue to speak up against injustice, oppression and inequality against humanity in solidarity.

Resistance is fertile