'Transgenders cannot be punished for cross-dressing'

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.