Kelantan has recorded its first prosecution for the offence of gender transition under the Syariah Criminal Code Enactment (I) 2019, since the law was gazetted in 2020.
The case is believed to also be the first of its kind in the country, where sex reassignment surgery is prohibited for Muslims, with an exception for intersex people.
“To our knowledge, yes, because we have been monitoring the case in Kelantan. We have not seen other cases. This is the first case,” Justice For Sisters (JFS) co-founder Thilaga Sulathireh told Malaysiakini.
“Out of all the states in Malaysia, Kelantan is the only state that has this provision,” she said, referring to the enactment criminalising sex reassignment surgery.
The case involving a trans woman was heard at the Kelantan Syariah Court in Kota Bharu last month.
According to a source privy to the development, the Kelantan Islamic Affairs Department (Jaheaik) had arrested the trans woman early this year, during an operation targeting an event involving a group of transgender individuals.
“Following the arrest, prosecution was initiated against the suspect at the Kelantan Syariah Court, on charges of sex change.
“It is understood that it is still at the case management stage after the accused pleaded not guilty to the charge,” the source who requested anonymity told Malaysiakini.
Malaysiakini learnt that the charge was framed under Section 18 of the Syariah Criminal Code Enactment (I) 2019, which criminalises changing one’s own gender, or that of another person.
According to the said law, if found guilty, the offence carries a fine not exceeding RM3,000 or imprisonment for a term not exceeding two years, or both.
When contacted, the accused declined to speak with Malaysiakini.
Exco says case details can’t be disclosed
Kelantan Islamic development, Da’wah, Information and Regional Relations executive councillor Asri Daud said his office also could not publicly disclose details of the case.
“I do not have complete information, and there are issues that cannot be openly disclosed. In this matter, I need to safeguard all parties who are facing action,” he said when contacted.
The case was also not publicised.
Thilaga stressed that laws criminalising gender transition have significant negative effects on transgender individuals in expressing their identity.
“Such laws create a larger space for sexual harassment, violations of privacy, personal integrity, and bodily autonomy.
“It also criminalises any kind of healthcare service providers, and trans-specific healthcare to exist at the state level,” she said when contacted.
Legal challenges
Kelantan, known as the “Veranda of Mecca”, regards issues relating to the LGBTQ+ community as taboo and highly sensitive. In April 1983, the National Fatwa Council ruled that changing one’s gender is forbidden under Islamic law.
The council clarified that a person born male remains legally male, and a person born female remains legally female, even after undergoing gender reassignment surgery. Men are also prohibited from wearing women’s clothing.
In 2014, however, the Court of Appeal delivered a landmark ruling recognising the rights of transgender individuals who suffer from gender dysphoria and who dress and present as women.
Three men - Juzaili Khamis, 26, Syukor Jani, 28, and Wan Fairol Wan Ismail, 30 - had challenged the constitutionality of Section 66 on Feb 2, 2011.
Under the provision, they faced up to six months’ imprisonment and a fine of up to RM1,000.
They named the Negeri Sembilan government, the state’s Islamic Affairs Department and its director, the syariah enforcement chief, and the prosecution chief as respondents.
Judge Hishamudin Yunus ruled that Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992 – which penalises Muslim males for posing as women – was inconsistent with the Federal Constitution. The court declared Section 66 void.
However, in 2015, the Federal Court set aside the Court of Appeal and High Court decisions on technical grounds. This meant Section 66 of the Negeri Sembilan Syariah Offences Enactment, which prohibits males from cross-dressing as females, remained in force.
Push for stricter laws
The federal government has also indicated its intention to strengthen laws preventing sex reassignment.
In 2021, then Deputy Minister in the Prime Minister’s Department (Religious Affairs) Ahmad Marzuk Shaary stated that gender change should be classified as a specific offence under syariah criminal law.
“There are two matters that I will ensure are included for consideration in amendments.
“First, changing gender must be made a specific offence under syariah criminal law.
“Second, social media content related to all behaviours that contradict one’s gender, including obscene, pornographic and repulsive content, should also be made a type of syariah offence committed online,” Harakahdaily reported him saying. - Mkini
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