Three Malaysian transgender women, also called Mak Nyah, have brought a case to The Negri Sembilan Appeal Court in Putrajaya against a shariah law which criminalizes being transgender (specifically, any male who "wears women's attire" or "poses as a woman").
It's a crucial ruling. Things are getting more conservative. We are not challenging Islam. This law is a violation of basic human rights for every Malaysian citizen.
--Nisha Ayub, transgender activist (Justice for Sisters) who was jailed at the age of 20 for dressing as a woman
There are an estimated 10,000 Mak Nyah in Malaysia.
The plaintiff's lawyers are arguing that repeated detention for violating the shariah law violates the Malaysian constitution, which outlaws gender discrimination and guarantees freedom of expression and movement and the right to privacy, a livelihood and a life with dignity.
Since Malaysia is primarily Muslim, it has two legal systems...secular and Islamic. The Islamic law applies only to Muslims and personal and family law, while the secular courts try civil and criminal cases.
Ultimately, the law in Malaysia remains secular. Even Shariah laws are enacted by a secular institution - the state legislative assembly - which has to pass a Shariah law like any other law. Let's not forget that there are non-Muslims in these legislative bodies. The more people realise this, the more accountability is placed on legislatures; that whatever law they wish to pass, it must be consistent with the constitution.
--Aston Paiva, a lawyer representing the Seremban women
It is an attribute of nature that they cannot choose and cannot change… Can you penalise someone for something they cannot choose or change?
--Paiva
Paiva and co-counsel Fahri Azzat have contended that Section 66 of Negri Sembilan's Shariah Criminal Enactment of 1992 violates constitutional protections and does not apply to those diagnosed with gender identity disorder, that the transgender community in Malaysia has historical roots as courtiers in pre-Islamic Malay kingdoms such as ancient Negri Sembilan and would be able to positively contribute to Malaysian society if they can keep their identity.
Six civil societies including the Malaysian AIDS Council and PT Foundation; the Kuala Lumpur Women and Health Society, and Malaysian Mental Health Society; and the Malaysian Centre for Constitutionalism and Human Rights were observing parties also represented by lawyers at the court.
A lower court dismissed a similar case in 2012 when a Judge ruled that since the plaintiffs had been born male and were Muslim, they had to adhere to the shariah law and were excluded from the fundamental liberties protected in the Constitution by Section 66. Three of them (all diagnosed with gender identity disorder and taking hormones) appealed that decision. If their appeal heard Thursday is dismissed, they will be able to proceed to Federal Court.
Under discriminatory state laws, transgender women in Malaysia face a daily risk of arrest just for being themselves. The government shouldn't be harassing and punishing transgender people just for peacefully going about their lives.
--Neela Ghoshal, senior researcher on lesbian, gay, bisexual and transgender (LGBT) rights at Human Rights Watch (HRW)
HRW research in four Malaysian states and Kuala Lumpur has disclosed that transwomen are routinely abused after being arrested, suffering extortion, violation of their privacy, and physical and sexual assault. Most are fined. Some are jailed.
Lesbian, gay, bisexual, transgender and intersex persons are the targets of discrimination by both state and non-state actors, including members of their own communities, the police, military and militant religious groups. Local laws criminalise acts that are deemed 'unnatural', and law enforcement agencies often target and harass activists who advocate for their rights.
--Freedom House
The Negri Semilan law against posing as a woman says that violators of the law can face up to 6 months in prison and a fine of up to 1000 ringgit ($310). Three other states have similar laws.
Since Mak Nyah are largely excluded from legitimate employment, around 60% of them work in the sex industry, which makes them the sub-population at highest risk of contracting HIV.
Any form of institutionalised discrimination that results in sexual minorities being forced underground or into the margins makes our work on HIV prevention a lot harder.
--Azrul Mohd Khalid, PT Foundation, an HIV/AIDS prevention organization
Sodomy is still a crime in Malaysia as well, and those convicted face caning, as well as up to 20 years in prison.
Last week Prime Minister Najib Razak shocked human rights groups worldwide by condemning "human right-ism" and other "deviationist teaching," with explicit mention of LGBT. Three days later the prime minister's Facebook page stressed the government's commitment to the Universal Declaration of Human Rights, which includes protections on the basis of sexual orientation and gender identity.
Ours is a majority-Muslim nation. But our faith respects other faiths and our commitment can be consistent with our constitution and our values.
--Najib Razak
Traditionally Mak Nyah are the Malaysian village wedding planners. In the early 1980s sex reassignment surgeries were performed on Malaysian transsexual women. A fatwa in 1983 outlawed the surgery.
Mak Nyah have been in Malaysia for a long time, and sex change was even done here. What really changed everything was the fatwa. LGBT was politicised.
--Nisha Ayub
The three-man bench chaired by Justice Datuk Mohd Yunus must rule on the case by the day of adjournment, July 17, 2014.