Understanding the decision in the transgender case


  • A Humble Submission
  • Monday, 17 Nov 2014

Transgender Sisters in Justice advocacy manager Nisha Ayb (far right) and her cross dressing supporters gathered at Palace of Justice after hearing in Putrajaya. MOHD SAHAR MISNI/ The Star

RECENTLY, the Court of Appeal delivered a decision that rocked the nation. It allowed the appeal of three transgender persons who had challenged the constitutionality of Section 66 of the Negri Sembilan Syariah Criminal Enactment.

The Court, chaired by Justice Mohd Hishamudin Mohd Yunus, unanimously found that the said Section violated Articles 5, 8, 9 and 10 of the Federal Constitution and as such, unconstitutional.

The Section provides that any Muslim male who is found to be wearing women’s attire or posing as a woman is guilty of an offence and may be punished by way of a fine of not more than RM10,000.00, or imprisonment of not more than 6 months or both.

The three appellants in the case are physically male. Yet, they are not like any normal male person. They, in fact, suffer from a medical condition known as "gender identity disorder" (GID). Those who suffer from GID, although they are born physically male, feel that they are women. They express themselves as women and exhibit mannerisms of the female gender, such as wearing women’s clothes and make-up.

The three appellants tendered medical evidence of their condition from no less than three experts. From the reports, it was established that GID is not "curable" and is permanent. The reports also established that the female mannerisms of the three appellants was not something they chose, nor could they do anything about it. The Negri Sembilan government, in responding to the suit brought about by the three appellants, did not rebut the medical evidence that was presented.

As a result of their medical condition, the three have constantly been harassed, arrested, detained and charged by the religious authority in Negri Sembilan, acting under Section 66 of the Enactment. It was difficult for them to even step out of their house and live their lives as normal persons as they were constantly subjected to the enforcement of the law.

Imagine, being punished for a medical condition that one can do nothing about. Imagine, if it was another medical condition that was criminalised, instead of GID.

Based on this, the appellants claimed that their fundamental liberties enshrined in the Federal Constitution had been violated by Section 66 of the said Enactment. They claimed that their right to life under Article 5, right to equality and non-discrimination under Article 8, freedom of movement under Article 9 and the right to freedom of speech and expression under Article 10(1)(a) have all been violated by the authority pursuant to the said Section 66.

Although the individual states have jurisdiction to enact laws pertaining to the religion of Islam, including Syariah criminal laws such as Section 66 of the Enactment, these laws must still be consistent with the highest law of the land - the Federal Constitution.

As stated by Datuk Dr Shad Saleem Faruqi in a recent article, it is the Constitution, and not the Syariah, that is the litmus test of constitutionality. Even though Article 3(1) of the Constitution declared that Islam is the religion of the Federation, this Article does not override all other constitutional provisions. Even Syariah enactments must fall within the ambit of the Constitution and must not deny the rights of minorities.

There is no proviso in Section 66 of the Enactment that excludes GID sufferers from the criminal sanctions. If there were such a proviso, it could be argued that the Section can be saved from being declared as unconstitutional. Yet, the law as it stood made no such distinction and thus violated the constitutional rights of GID sufferers such as the appellants.

This case should not be seen as a challenge to the Syariah. If we take away the Syariah label, the same principles should still apply to determine the constitutionality of the provision. Nor should this case be seen as acknowledging LBGT rights, such as "opening the doors" to same-sex marriages, as alleged by certain quarters. All that the three appellants were seeking through the due process of the law was simply to live as human beings, free from harassment and punishment for something they did not choose nor could do anything about.

* Syahredzan Johan is a lawyer and appeared as amicus curiae in the case for the Bar Council.

> The views expressed are entirely the writer's own.

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