The Court of Appeal in Putrajaya has passed a landmark ruling in recognising the rights of transgenders who suffer from gender dysphoria, where they dress and pose as women.

Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992, which penalises Muslim males posing as women, is inconsistent with the Federal Constitution, Justice Mohd Hishamudin Mohd Yunus ruled.

As such, the court declared Section 66 as void.

“We hold that section 66 is invalid as being unconstitutional. It’s inconsistent with Article 5 (1), Article 8 (2), Article 9 (2) and Article 10 (1) (a), of the Federal Constitution, and is therefore void,” Justice Hishamudin said in an hour-long judgment.

The ruling was based on Article 4 (1), which declares that any law inconsistent with the supreme law shall be void.

The provision also applies to the appellants and Muslim males who suffer gender dysphoria, when they are in a different situation and circumstance as compared with male Muslims, and therefore should not be treated similarly with normal male Muslims, the judge said.

Right to live with dignity deprived

It also deprived them of their right to live with dignity, and infringed on their right to freedom of movement, he said.

“They will never be able to leave their homes freely in Negri Sembilan without being exposed to being arrested and punished under Section 66.

“The provision also directly affects their right to freedom of expression, as they were prohibited from wearing the attire and articles of clothing of their choice,” Justice Hishamudin said.

The court also found that the section was discriminatory on the ground of gender, where it does not prohibit females from dressing in male attire.

In a harsh tone, the court criticised the Seremban High Court judge who had erroneously speculated that the provision curbs social ills as it can prevent homosexuality and lesbianism, which could lead to the spread of HIV.

“This case is about male Muslim persons with a medical condition called Gender Identity Disorder (gender dysphoria). But unfortunately, there was a complete failure on the part of the learned judge to appreciate the unrebutted medical evidence before her,” he said.

‘Unscientific personal feeling’

Hishamuddin described the High Court judge’s “unscientific personal feeling” or “personal prejudice” as baseless and grossly unfair to the appellants and male Muslims with gender dysphoria.

“The present case has nothing to do with homosexuality,” he ruled.

The court also went on to criticise Negeri Sembilan state legal adviser Iskandar Ali for describing gender dysphoria sufferers as being of “unsound mind”.

“In the absence of medical evidence, it is absurd and insulting to suggest that they are persons of unsound mind,” he said.

Supporters of the transgenders were overjoyed and applauded the decision.

Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani,  28, and Wan Fairol Wan Ismail, 30, filed their challenge to the constitutionality of Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 on Feb 2, 2011.

Under Section 66, they can be sentenced to a maximum of six months’ jail and fined up to RM1,000 by the Syariah Court.

They named the Negri Sembilan state government, the state’s Islamic Affairs Department and its director, the syariah enforcement chief and prosecution chief as respondents.

 

They also sought a court order to prohibit their arrest and prosecution.

The High Court in Seremban, which dismissed the application by the three, had ruled that their rights were to be disregarded as they were born male and being Muslim, must follow the law as religious teaching.

The three-member Court of Appeal bench also comprised Justice Aziah Ali and Justice Lim Yee Lan.

Aston Paiva and Fahri Azzat represented the appellants, while state legal adivser Iskandar Ali Dewa and assistant state legal adviser Muhammad Fairuz Iskandar acted on behalf of the respondents.

Senior federal counsel Suzana Atan took part in the hearing as amicus curiae.

'It's amazing'

“As a transgender woman, now I know there are human rights in Malaysia. It’s amazing,” said Nisha Ayub, the person in charge of Sisters for Justice, a transgender rights NGO.

“I encourage (transgenders in other states) to come out and do the same (to seek justice through legal means), it’s time for us move forward,” Nisha said.

“This is a big day for human rights in Malaysia, a great decision by the court in expanding the definition of freedom of expression, freedom of movement and addressing gender inequality,” said S Thilaga, who is also with Sisters for Justice.

Thilaga hopes the decision will promote the human rights of the transgender community and reduce the stigma and violence against them, as a survey conducted by Sisters for Justice showed the majority of the transgenders had been subjected to violence by enforcement officers.

With the decision, she hopes transgenders will have a better conversation with the stakeholders and the community will no longer perceive them as deviant, resulting in them being isolated.

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