If someone caught for cross-dressing under syariah law claims to have Gender Identity Disorder (GID), this claim should be proven in the criminal syariah proceedings, the government argues.

This is among the assertions made in seven questions that have been submitted in the application of the Negeri Sembilan Islamic Affairs Department’s (Jains) for leave to appeal last month's landmark Court of Appeal decision on transgenders.

The Court of Appeal ruled that Section 66 of the Negri Sembilan Syariah Enactment 1992, which bans cross-dressing bymales, is unconstitutional.

The applicants, Jains, its director, jains chief enforcement officer, the Negeri Sembilan government and the Negeri Sembilan syariah chief prosecutor, are represented by lawyer Muhammad Shafee Abdullah.

The applicants are asking whether the Court of Appeal acted prematurely as the definition of “male” has yet to be established in a trial before the syariah criminal court.

Section 66 only applies to cross-dressing of males.

They said 'male' could be defined in the context of GID, gender at registration of birth, Islamic philosophy of gender identity, medical manipulation and relevant psychological factors.

“Is it not premature for the Court of Appeal in making rulings devoid of such inquiry/investigation in a regular trial before the syariah court of competent jurisdiction?”

'Can civil court review syariah?'

The applicants also asked if GID should be allowed as a specific defence of “unsoundness of mind or mental disorder”.

They also question if Section 66 is subject to judicial review and if an “ordinary court of law” can nullify Section 66, given Article 121(1a) of the Federal Constitution.

Article 121 (1A) states that the High Court “shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts.”

Other questions include:

  • Whether the Court of Appeal was premature in considering the facts alleged by the respondents in affidavits, given that the evidence was not tested in a trial; and

 

  • Whether a reasonable interpretation of Section 66 would not infringe on the articles the Court of Appeal ruled it infringes Articles 5(1), Article 8(1), Article 9(2) and Artice 10(1)(a) of the federal constitution.

    • These articles refer to personal liberty, equality, freedom of movement and freedom of expression.

    On Nov 7, the Court of Appeal ruled that the Seremban High Court had erred in rejecting a judicial review application by three transgender individuals arrested for cross-dressing, and declared Section 66 as unconstitutional.

    Deemed a victory by the LGBT community, the decision sparked an outcry among pro-government Muslim groups, who claimed it would open the floodgates for homosexuality, same sex marriages, sex change operations and other things they claim is forbidden in Islam.

    Some Muslim quarters have also raised concerns that a civil court could review a syariah law, which they claim subjugates Islam .