Court of Appeal: Negri Sembilan Syariah law against cross-dressing unconstitutional

Palace of Justice in Putrajaya

PUTRAJAYA: Punishing transgenders for cross-dressing contravenes freedom of expression, the Court of Appeal declared Friday, in a landmark ruling.

The panel allowed the appeal of three transgenders who sought to have Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 declared unconstitutional.

The panel lead by Justice Mohd Hishamudin Mohd Yunus ruled that Section 66 contravened multiple Articles of the Federal Constitution which ensured fundamental liberties, including Article 5(1), 8(1), 8(2), 9(2), and 10(1).

"A person's dress, attire or article of clothing are a form of expression, which in our view is guaranteed under Article 10 (freedom of expression)," he said.

The panel also found that a state legislative assembly has no power to restrict freedom of speech, and that only Parliament could do so within reason.

Currently, Section 66 allows the Syariah Court to punish any man who dresses or poses as a woman with up to six months in prison or be fined a maximum RM1,000; regardless of whether they had Gender Identity Disorder (GID).

"Clearly, the restriction imposed on the appellants and other GID sufferers is unreasonable. Thus from the aspect of reasonableness, Section 66 is unconstitutional," ruled the court.

Justice Mohd Hishamudin disagreed with the Seremban High Court findings that the Syariah law was reasonable in order to protect society from homosexuality which would lead to the spread of HIV.

"The High Court's remarks are unsupported by, and contrary to, evidence and is tainted by unscientific personal feelings or personal prejudice," said Justice Mohd Hishamudin.

He said the High Court judge was "particularly transfixed with homosexual relations" in her reasoning, although the present case has absolutely nothing to do with homosexuality but was rather about gender identity.

The Court of Appeal panel, which also included Justices Aziah Ali and Lim Yee Lan, made no order as to costs.

Counsel Aston Paiva represent the transgender appellants, while Iskandar Ali Dewa acted as legal advisor for the Negri Sembilan state government, and senior federal counsel Suzanna Atan acted for the Attorney-General's Chambers as amicus curae (friend of the court).

Speaking to reporters, Aston said cross-dressers could still be arrested, but were now empowered to challenge it at High Court.

Justice For Sisters advocacy manager Nisha Ayub said they would be educating transgenders around the country and encouraging them to challenge similarly prohibitive laws in their states.