Malaysian court decision on cross-dressing

Published October 8, 2017
Language English

A Malaysian court decision that made a ban on cross-dressing illegal last year is now being challenged in court. Last November the Malaysian Court of Appeal ruled that a Shariah law criminalizing Muslim transgender people in Negeri Sembilan state was unconstitutional. The state government is now trying to overturn that decision.

On January 27, 2015, the Negeri Sembilan state government will try to “obtain leave” to appeal the earlier decision by convincing a five-judge panel that its case is worth hearing. If they succeed, there will be a full hearing, with the possibility that the previous court ruling may be overturned, and the original Negeri Sembilan Shariah Criminal Enactment that banned cross dressing may again become law.

Before it was overturned in November 2014, section 66 of the Shariah law in Negeri Sembilan stated that any male person dressing as a woman in public could be fined 1,000 ringit, sentenced to six months in prison, or both. The law was enforced by the State Religious Department who conducted raids and made arrests of transgender women.

“This not only brings shame to humanity but also attacks the human rights of transgender people”, says Abhina Aher, Chairperson of the Asia Pacific Transgender Network (APTN).

Malaysia is governed by both civil and Shariah laws, with the highest law being the federal constitution. While civil law is administered at the federal level, Shariah law operates at state level, with 14 sets of laws and implementation varying from state to state. Although this Shariah law would only apply to Muslims in Negeri Sembilan, this case will have an important impact on all transgender people in Malaysia, regardless of their religion.

“This could have repercussions for the safety of all transgender people in Malaysia,” says Joe Wong, Programme Manager at APTN. “Subjecting transgender people to arrest and imprisonment, fines, or both, makes them targets of discrimination and results in lack of opportunities for employment and education. The absence of legal protection leaves transgender people vulnerable to extortion and violence, especially those living on the margins of the law as sex workers. It is a systemic problem.”

Despite clear guidance from the World Professional Association for Transgender health (WPATH) transgender people in Malaysia are still viewed as a problem to be fixed. In some cases this includes being pushed by family members to recommend or impose reparative therapies, sometimes involving involuntary committal to a psychiatric ward. “Gender conversion therapy is never effective, and such treatment are no longer considered ethical, Kevin Halim, Programme Officer at APTN.

“Transgenderism is not per se a mental disorder. There is no Gender Identity Disorder, except the inability or unwillingness to accept transgender people” says Dr Sam Winter of WPATH. “We deserve to be treated equally and be protected by the system in the country we are born in. It is time for our country to recognize the existence of the transgender community,” says transgender activist Nisha Ayub.

APTN calls upon the Malaysian Government to repeal all laws that punish cross-dressing and remove the legal, regulatory or administrative barriers to the formation of community organisations by or for transgender people. Psychologists in their professional roles should provide appropriate, non-discriminatory treatment and work against discrimination towards transgender individuals.

APTN urges the Human Rights Commission of Malaysia, UN agencies and community leaders to work together towards eliminating the barriers of the trans community related to health, social wellbeing and human rights. APTN extends support to the transgender people living in countries like Malaysia as they engage with policy makers and faith-based leaders to work towards the social inclusion of all transgender people.

For enquires, please contact:
+66 92 502 8428

Photo credit: Trevor Mills