PUTRAJAYA: Transgenders cannot be punished for cross-dressing, as it is a fundamental part of their nature, the Court of Appeal here was told on Thursday.
Counsel Aston Paiva said medical evidence showed Gender Identity Disorder (GID) was not a matter of choice, and could not be changed via medical or psychological treatment.
"The heart of the matter is, a person cannot be punished for an attribute they did not choose nor cannot change," he said, adding that to do so would be to mean to accept apartheid and racial genocide.
Paiva, acted for three transgenders, who were appealing to have Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992, be declared unconstitutional.
Muhamad Juzaili Mohd Khamis, 26, Shukor Jani, 28, and Wan Fairol Wan Ismail, 30, who work as bridal make-up artists, identify themselves and dress as women.
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.
Paiva submitted that the High Court judge had made a grievous error on her judgment, as she had misunderstood one of the studies she referenced, and mistakenly came to a conclusion.
Lawyer Syahredzan Johan, acting for the Bar Council as amicus curae (friend of the court), argued that the High Court had taken the wrong approach by assuming Syariah law supersedes personal law.
He said since the enactment was passed by the Negeri Sembilan state assembly, which is a secular body, it must adhere to the Federal Constitution.
"A law must be measured by the yardstick of the Constitution, if it is found wanting, it must be be declared unconstitutional," said Syahredzan.
The panel who made up of Justice Mohd Hishamudin Mohd Yunus, Aziah Ali and Lim Yee Lan fixed July 17 to continue the case.
They would be hearing submissions from Human Rights Watch's lawyer and legal advisers for the Negeri Sembilan state government.
The court was packed with supporters and reporters since 9am in the morning, prompting the court to allow observers to even sit in the dock.
The judicial review filed in the Seremban High Court on Feb 2, 2011 had also named the Negeri Sembilan Islamic Affairs department, its director, the state's Syariah enforcement chief, and prosecution chief, as respondents.
The review sought to have Section 66 be declared unconstitutional or to have it declared that the law would not apply to individuals with GID.
The applicants, who claim to have been arrested and harassed by the authorities repeatedly, are also seeking a court order to prohibit their arrest and prosecution under the section.
During the review hearing, Paiva had argued that Section 66 infringed Federal Constitution, including Article 10(1)(a), which guarantees freedom of expression, Article 5(1) which enshrines the right to personal liberty and Article 8(2) which prohibits discrimination on grounds of religion, race or gender.
On Oct 11, 2012, Justice Siti Mariah Ahmad dismissed the review, ruling that by virtue of the applicants being born male and being Muslims, their rights under the Constitution are to be disregarded.
"As Muslims they do not have the right to question the laws created for them," said Justice Siti Mariah, in her 25-page grounds of judgment.
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