Transgenders are female spirits trapped in a male body and they cannot be punished for cross-dressing as it is a fundamental part of their nature, the Court of Appeal here heard today.
Lawyer Aston Paiva submitted that transgenders, also known as "mak nyah", suffer from a chronic medical condition call gender identity disorder (GID) whose inner psychology was not congruent with the physical body.
He is representing three Muslim bridal make-up artists who are challenging a Negeri Sembilan Syariah criminal law which prosecutes Muslim transgenders who dress like women.
Paiva said persons with the disorder would cross-dress as they feel the essence of their identity to be that of a woman and wear women's clothing to express themselves as women.
"Medical evidence show GID is not a question of choice. Nobody decides to have GID. It afflicts you," he said, adding that they could not be changed with pharmalogical medicine or pyschological therapy.
He said to penalise a transgender for an attribute they did not choose nor could change, it would mean to accept apartheid and racial genocide.
Paiva said Section 66 (of the syariah enactment involved) did not apply to persons who suffer from GID, adding that the section infringed Article 10 (1)(a), Article 5(1) and Article 8(2) of the Federal Constitution which respectively guarantees freedom of expression, right to personal liberty and prohibit discrimination on grounds of religion, race or gender.
Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, and Wan Fairol Wan Ismail, 30, are appealing to the Court of Appeal against a High Court's dismissal of their judicial review application to challenge the constitutionality of Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992 which criminalises any man who dresses or posed as a woman.
They sought to declare that Section 66 was unconstitutional or that Section did not apply to people like them, who suffer from GID.
On Nov 4, 2011, they obtained leave from the High Court to bring the judicial review proceedings.
The High Court in Seremban, after hearing the trio's judicial review, rejected their request to declare unconstitutional the Enactment, ruling that because they were Muslims and were born male, they must adhere to the law as part of Islamic teaching.
Section 66 allows the Syariah Court to punish any man who dresses or poses as a woman with up to a fine not exceeding RM1,000 or imprisonment not exceeding six months or both, upon conviction.
The trio who claimed 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.
Lawyer Syahredzan Johan acting for the Bar Council as amicus curiae (friend of the court) argued that state enacted laws must be consistent with the fundamental liberties as guaranteed in the Federal Constitution.
"The Bar is very concerned with the findings of the High Court with respect to its approach, which was a wrong approach," he said.
He said the Enactment was passed by the Negeri Sembilan state assembly and must be measured by the yardstick of the Constitution.
The Court of Appeal panel comprising Justices Datuk Mohd Hishamudin Mohd Yunus, Datuk Aziah Ali and Datuk Lim Yee Lan fixed July 17 for continued hearing of the appeal.
Earlier, the court had allowed the Bar Council and Human Rights Watch to appear as amicus curiae in the appeal.
Bernama
Thu May 22 2014
Also known as "mak nyah", transgenders suffer from a chronic medical condition call Gender Identity Disorder whose inner psychology was not congruent with the physical body. - Filepic
Iran's supreme leader says Hamas leader's death will not halt 'Axis of Resistance'
The "Axis of Resistance", built up with years of Iranian support, includes Hamas, the Lebanese Hezbollah group, the Houthi movement in Yemen, and various Shi'ite groups in Iraq and Syria.
Putin says Russia willing to seek compromises between Iran and Israel
Russia is ready to help seek compromises between arch-foes Israel and Iran, President Vladimir Putin said on Friday, saying these would be difficult but possible.
What proposals will Russia push at the BRICS summit?
The proposal is also to establish a BRICS reinsurance company to allow uninterrupted shipment of goods and key commodities between members.
Indonesia's free meals plan in the spotlight as Prabowo readies for office
Prabowo calls the programme one of the main drivers of economic growth, eventually set to add an estimated 2.5 million jobs.
Astro AWANI's revamped English news website, AWANI International, launches on Oct 21
Astro AWANI's revamped English platform delivers in-depth global news and expert analysis to keep you informed on key developments.
Israeli strikes kill 33 people in Jabalia refugee camp in Gaza, medics say
Residents of Jabalia said Israeli tanks had reached the heart of the camp after pushing through suburbs and residential districts.
Liam Payne's ex-partner calls for media restraint after 'painful' death
Cheryl Tweedy used her statement to urge the media to remember they had a seven-year-old son, Bear, who could read the reports.
Analysts: Indonesia's strong MoF leadership team to boost investor confidence
Sri Mulyani Indrawati as head of Indonesia's Ministry of Finance is expected to instil confidence among investors.
Biden offers both a carrot and a stick to Israel as his term nears an end
Israel has frequently resisted US advice and has caused political difficulties for the Biden administration.
Putin says BRICS will generate most of global economic growth
Russian President Vladimir Putin will host a summit of the group in the city of Kazan on Oct. 22-24.
ISIS Malaysia's perspective of Budget 2025
An excellent rakyat-centric budget under the overarching principle of a caring and humane economy.
Budget 2025: Record increase in STR, SARA aid initiatives
The government will provide a significant boost to the Sumbangan Tunai Rahmah (STR) and Sumbangan Asas Rahmah (SARA) initiatives next year.
Budget 2025: EPF contributions to be made mandatory for foreign workers – PM Anwar
The government plans to make it compulsory for all non-citizen workers to contribute to the Employees Provident Fund (EPF).
What policies to expect from Indonesia's new President Prabowo
Prabowo will be open to foreign investment, his aide has said, such as by offering investors management of airports and sea ports.
Budget 2025: Govt allocates RM470 mil to empower women's participation in PMKS
The Women's Leadership Apprenticeship Program will be intensified as an effort to produce more female corporate personalities.
Israel sends more troops into north Gaza, deepens raid
Residents of Jabalia in northern Gaza said Israeli tanks had reached the heart of the camp, using heavy air and ground fire.
Indonesia ramps up security ahead of Prabowo's inauguration
Prabowo Subianto will be sworn in as Indonesia's president on Sunday with Vice President-elect, Gibran Rakabuming Raka, also taking office.
Immediate allocation of RM150 mil for local authorities, DID to tackle flash floods
Datuk Seri Anwar Ibrahim said this allocation is intended to address the recent flash floods that hit the capital and several major towns.
Budget 2025: Sabah, Sarawak to continue receiving among highest allocations - PM
Sabah and Sarawak continues to be prioritised under Budget 2025, with allocations of RM6.7 billion and RM5.9 billion respectively.
NFOF will be operational in November 2024 with funding of RM1 bil
PM Anwar Ibrahim said NFOF will support venture capital fund managers to invest in startup companies with RM300 million set aside for 2025.