COMMENT Justice for Sisters strongly criticises and deplores the arrests that have taken place following the decision by the Federal Court on Oct 8 on Section 66 of the Negri Sembilan Syariah Criminal Enactment.

The apex court overturned the Court of Appeal’s landmark decision that Section 66 is unconstitutional.

Since the decision that set aside two court orders, and reinstated Section 66, raids and arrests have taken place in Kuala Lumpur, Terengganu and Penang, triggering a wave of fear among the transgender community to freely move.

Kuala Lumpur

Brickfields – arrested after rejecting man’s request for sex

On Oct 12, three transwomen from Seremban were arrested while shopping in Brickfields, Kuala Lumpur.

The three were approached by a man requesting sexual services, a common assumption that all transwomen are willing to provide sexual services in exchange for money or otherwise.

They refused, and the man later accused them of stealing his wallet, which actually fell on the ground and was immediately found.

The police arrested the transwomen anyway, and detained them at the Dang Wangi district police headquarter.

The three were remanded for three days under Section 380 of the Penal Code which deals with theft in dwelling house, etc. The three spent an extra day in detention due to a public holiday.

The women were allegedly asked to remove their clothes and were subjected to further humiliation in detention. There were also reports of physical assault.

Bukit Bintang and Chow Kit – heads shaved while held for six days in lock-up

On Oct 15, 15 transwomen of various nationalities were arrested in a raid in Bukit Bintang, Pudu and Chow Kit, Kuala Lumpur.

Four of them were charged in court under Section 28 of the Syariah Criminal Offences Federal Territories Act, which penalizes male persons who pose as women or wear women’s attire for immoral purposes. The four, two of Indonesian nationality, were fined RM 990.

According to the Sinar Harian’s article ‘ Berpakaian wanita; Mak Nyah kena denda’ the four appeared in court in the Federal Territories’ Islamic Affairs Department’s (Jawi) grey lockup garb with shaved heads following the arrest six days ago.

The accompanying photo in the article further proves that their hair was shaved in detention.

We strongly condemn degrading treatment of detainees, and all forms of corrective measures of transgender and gender non-conforming persons by the state.

We emphasize that changing someone’s appearance against their will, including shaving someone’s head, is a form of torture.

The state’s role is to promote and protect the rights of all people, regardless of gender identity.

The arrests and detention of the transwomen pose serious questions regarding Jawi’s jurisdiction in relation to arrest and detention. We demand answers to the following questions:

  1. Why were the trans women detained for six days? And where were they detained?
  2. Do the religious authorities have jurisdiction to carry out arrests and detain people?
  3. Why were their heads shaven if they were only being detained, and had not been convicted in the court of law?

The remaining 11 were released on bail at the Jawi office – seven on Oct 15, four on Oct 16.

However, Jawi made it particularly challenging for the transwomen to be released. They imposed the condition that only cisgender men (men whose lived experience matches the sex and gender they were assigned at birth) could post bail for the transwomen.

As a result, some women were released on Oct 16, as they were not able to find a cisgender man to bail them.

It is important to note that the women were not informed of their rights and underwent many human rights violations in relation to access to justice, rights to redress and remedies.

Terengganu

On Oct 21, three transwomen of Filipino nationality were arrested in Terengganu in a raid by the Immigration Department.

According to Sinar Harian ’s article, ‘ Taktik pondan tawar seks melaui WeChat terbongkar ’, the Immigration Department posed as clients to solicit sexual services from the transwomen.

The three are currently detained at the Ajil immigration depot, and will be investigated under Regulation 39 (b) Immigration Regulations 1963, which carries a fine not exceeding RM 1,000 or prison for not exceeding six months or both, if found guilty.

Penang

Raids have been carried out in Penang. However, no arrests have taken place.

Negri Sembilan

In Negri Sembilan, harassment and intimidation began on the day that the decision was delivered.

The religious authorities warned some transwomen that they would be arrested if they saw them again in the area.

We deplore the intimidation and harassment by the authorities towards the women, as these actions are making people feel unsafe in their own homes and to move around freely.

Section 66 and similar laws that criminalise one’s gender identity and gender expression make transgender or transwomen, or mak nyah , regardless of religious backgrounds, vulnerable to arbitrary arrests and violence.

Sex workers most vulnerable

However, it is important to note that transgender sex workers are most vulnerable to arrests and violence because of their visibility.

Stigmatization and criminalisation of sex work under Malaysian law further make transwomen vulnerable to violence and hate crime, and further create barriers to access justice and due processes.

However, it is important to understand that sex work is also a form of work, and the criminalisation of sex work further contributes to violence against sex workers, creates barriers for sex workers to exercise their rights to due process and remedies, and disallow work with dignity.

We further condemn the shaming of sex workers in the media for making a living. While it is a known fact that arrests increase at the end of the year, we completely deplore the use of sex work to shame and stereotype transgender women.

The reality is that transgender persons face adverse challenges and barriers to access education and employment opportunities.

Often, transgender persons face extreme hostility in schools and educational institutions, from gender binary policies that disallow children who are transgender or gender non-conforming to express their authentic gender identity and true self, to bullying and violence from peers and administrators.

This often results in transgender students performing poorly in schools or dropping out altogether, as the environment is not conducive for learning.

Further, employers often prioritize gender identity over qualification, competency and expertise.

Often, transwomen are rejected from seeking employment and employers also impose policies that disallow transgender people to express their authentic gender identity and gender expression.

Given this hostile environment, sex work represents one of few opportunities for transwomen to support themselves.

Malay-language media’s degrading coverage

We further criticize some Malay-language mainstream media for using language that blatantly dehumanizes and degrades trans women.

Since the decision at the Federal Court, some Malay-language media especially have been using language that is insensitive, ignorant, and plain rude to describe trans women.

We are outraged and appalled by the use of language such as ‘ wanita jadian ’ (fake women) and ‘ pondan ’ (transvestite), and the sensationalist reporting.

We are also extremely surprised by the ignorance and insensitivity displayed by Malay-language media, especially in an age where transgender people and issues are visible and heavily discussed in the media everywhere.

The Malay-language media must adopt ethical reporting and treat transgender persons with respect.

We call on all people to stand up and speak up against violence against transgender persons.

JUSTICE FOR SISTERS is a grassroots campaign to champion equal opportunities, rights and access for transgender people.