Malaysian court to rule on sharia law, transgender women

Malaysian court to rule on sharia law, transgender women

by Denis LeBlanc

Malaysian transgender activist Nisha Ayub was jailed for three months for violating sharia law by cross-dressing. (Click the image to view an HRW report on transgender activism in Malaysia.)

An appeals court will soon rule whether sharia law violates the fundamental constitutional rights of transgender people in Malaysia.  Among several writers describing what's at stake, Neela Ghoshal of Human Rights Watch states:

Serafina (not her real name) led me up the staircase – her thick, sleek ponytail swinging back and forth – to an apartment in Seremban, Malaysia, that smelled of nail polish, green tea, and cigarettes.

“I love myself,” she told me, perched on the arm of the sofa. “I don’t want to be pretending to be a man.” This statement captures the heart of who Serafina is: a proud woman. Acting like a man would be masquerading as something she is not.

Promotional material for the Kebangkitan LGBT group of Malaysia

But because Serafina is a transgender woman, to her government she is a criminal.

Serafina lives under a legal regime that criminalizes “any male person who, in any public place wears a woman’s attire or poses as a woman.” The law forms part of Negeri Sembilan state’s “sharia enactment,” a state-level code of law that applies to Muslims and is enforced by the state Islamic Religious Department. This set of laws coexists with federal criminal law, which applies to all Malaysians and is secular.

Since Serafina was born with male genitalia and her national identity card reads “male,” merely stepping outside her apartment in a woman’s blouse and skinny jeans could send her to prison for six months. Serafina hasn’t been imprisoned yet, but she’s been subjected to fines and ill-treatment: state religious officials once punched her in the face.

Malaysia's location in Asia.

“What’s special about this case is the fact that we’re challenging the constitutionality of state sharia law, which has never been done before,” said Thilaga Sulathireh of the Malaysian trans rights group Justice for Sisters, J. Lester Feeder wrote in BuzzFeed.

Many states in Malaysia have adopted a sharia law [in Malaysia also described as Syariah law] that criminalizes “any male person who, in any public place wears a woman’s attire or poses as a woman.”

This case will be heard in the appeals court of Putrajaya in the state of Negeri Sembilan, south of the country’s capital, Kuala Lumpur. It has been making its way through the courts for three years. Four litigants first filed a constitutional challenge to the sharia code in February 2011, and the Negeri Sembilan High Court ruled against them in October of 2012. It is now before the state's appeals court, which heard the litigants' opening arguments on May 22. The next hearing is scheduled for July 17, including arguments from HRW and the government.

If the litigants lose in this state appeals court, they plan to take the case to Malaysia's federal courts.

Location of Negeri Sembilan state in Malaysia.

Sulathireh said at the time they decided to go to court, reports were coming almost every other day that religious police had arrested transgender women, and often on flimsy pretenses. Human Rights Watch, found that trans women had suffered physical and sexual abuse at the hands of police and some of them had been arrested more than 20 times.

One of the litigants was dressed in gender-neutral clothing when she was arrested, and was not even wearing a bra — many trans women avoided wearing bras because they could be used as evidence by police. But officers approached her on the street because she had long hair and other feminine physical features, lifted her shirt to check for breasts, and put her under arrest.

"People are being criminalized over something that they didn't choose and cannot change," said the litigants' attorney, Aston Paiva. He says that this version of sharia laws can be challenged in secular court because they are secularized versions of religious law. BuzzFeed reported him saying:

“What are termed ‘Syariah laws’ are in fact secular laws that codify aspects of substantive Islamic law. Thus, there is no reason why these “Syariah laws” cannot be tested against the Constitution or subjected to constitutional review by the Courts like any other law.”

For more information, read:

• "Malaysian Court To Decide If Sharia Law That Criminalizes Transwomen Violates Their Rights." (J. Lester Feder in BuzzFeed)
• "The Right to Be Who You Are in Malaysia"  (Neela Ghoshal of Human Rights Watch).
• "Transgenders can't be punished for cross-dressing, court told" (The Star of Malaysia)
• "Recognised abroad, but punished in Malaysia, lawyer tells court on transmen and women" (MSN News)