Law to punish Muslim cross-dressers valid, Court told

Transgender activist Nisha Ayub (2nd left) arrives with her friends at the Court Of Appeal in Putrajaya today. – The Malaysian Insider pic by Wan Amirul Asraf Wan Omar, July 17, 2014.

A provision to punish the Muslim transgender community for cross-dressing in Negri Sembilan is legal, even if it violates the rights of citizens under the Federal Constitution, the Court of Appeal heard today.

Senior federal counsel Suzana Atan submitted that this was because the constitution allowed state legislative assemblies to enact laws dealing with acts that went against the precepts of Islam.

She said Article 74 (2) of the constitution allowed states to enact laws and charge Muslims at a shariah court.

"Section 66 is a valid law and not unconstitutional because it is an offence for male Muslims to be dressed in female attire in that state," said Suzana, who appeared as amicus curiae (friend of the court).

She was referring to Section 66 of the Negri Sembilan Shariah Criminal Act 1992, which makes it an offence for men to cross-dress and provides for punishment of up to six months in prison, a fine of up to RM1,000, or both, upon conviction.

Four Malay transwomen who were arrested and charged in the religious court had challenged the constitutionality of Section 66.

They contended that Section 66 violates their fundamental rights enshrined in the constitution, namely the prohibition of discrimination based on gender; freedom of expression; freedom of movement; and the right to live with dignity, privacy and to livelihood.

But, the High Court in October 2012 which heard their claim held that the four must adhere to the law as they are Muslims and are born male.

The court dismissed their claim that the law is unconstitutional, discriminatory and a breach of fundamental rights and freedom. It also ruled that Muslim men and women are subjected to the shariah.

Three of them then appealed to the Court of Appeal.

Suzana said the Mufti of the state had given his opinion (fatwa) that it was against the religion for Muslim men to cross-dress.

Datuk Mohd Hishamuddin Mohd Yunus, who chaired the three-man panel hearing the appeal, asked Suzana whether Islam recognised those suffering from a "gender identity disorder".

She said the religion did not.

According to psychiatrists, gender identity disorder sufferers are actually female in spirit, trapped in a male body and so they cross-dress.

Lawyer Nizam Bashir, who also appeared as friend of the court on behalf of the New York-based Human Rights Watch, said laws passed by state legislature could not encroach into the fundamental liberties of citizens.

"This is because Article 74 (3) stated that enactments passed by the states are subject to other provisions in the constitution," he said.

Nizam said the transwomen are naturally feminine and should not be discriminated against.

Hishamuddin said the repeated persecution of the transgender community by the Negri Sembilan Islamic authorities was disturbing as the court had yet to decide on the appeal.

The judge said that when lawyer Aston Paiva, representing the three transwomen, submitted an additional affidavit to support the appeal.

The affidavit is from one of 10 men charged and fined RM950 and sentenced to seven days’ jail for cross-dressing, after they were arrested by the Negri Sembilan Islamic Department in Bahau last month.

"I am disturbed by this and advise the state to stop this action pending the disposal of this appeal," he said.

Negri Sembilan legal adviser Iskandar Ali Dewa objected to the admission of the fresh affidavit on grounds that the person was not a party to the appeal.

But, Aston submitted that since the person is also transgendered and affected by the decision, the affidavit should be allowed.

The court allowed the affidavit to be admitted.

- TMI