Transgenders may dress as women, says Court of Appeal

Transgenders will no longer be punished for cross-dressing following a landmark Court of Appeal ruling Friday.

A three-man panel led by Justice Mohd Hishamudin Mohd Yunus and Justices Aziah Ali and Lim Yee Lan, ruled that Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 violated Articles 5, 8, 9 and 10 of the Federal Constitution reported the Malaysian Insider.

The report also stated tha the case today can be set as a precedent for other states in the country. Previously, it is an offence for Muslim males to dress and behave as women.

Articles 5(1), 8(1), 8(2), 9(2) and 10(1) of the Federal Constitution ensured fundamental liberties.

The ruling comes on the heels of an appeal sought by three Muslim transgenders to have Section 66 of the Syariah Act declared unconstitutional.

They claimed the provision violates their constitutional right of freedom of expression, movement and their right to live in dignity.

“We are allowing the declaration sought by the (three) appellants and setting aside the decision of the High Court.

“A person’s dress, attire or article of clothing are a form of expression, which in our view is guaranteed under Article 10 (freedom of expression),” he said told The Star.

He also noted that the legal restriction is unreasonable as the appellants suffered from Gender Identity Disorder (GID) which caused them to dress up as women.

The verdict overturns a 2012 High Court ruling, which had dismissed the challenge by the three appellants over their arrest four years ago under the law and said the appellants must adhere to the law as they are Muslims and born male.

Muhammad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail had been arrested several times for violating the state enactment which led to them filing a judicial review to declare the Syariah Act unconstitutional.

According to the New Straits Times, they named as respondents the Negeri Sembilan state government, its Islamic Affairs department and director, the state Syariah enforcement chief and prosecution head.

Counsel Aston Paiva Phillip represented the appellants while Negeri Sembilan state legal advisor Iskandar Ali Dewa acted for the respondents.

Hishamudin said, the court also found that the Seremban High Court judge had made remarks and findings that were contrary to evidence and tainted by unscientific personal prejudice.

The judge had said that Section 66 would help protect society from homosexual activities that resulted in the spread of HIV.

“The High Court’s remarks are unsupported by, and contrary to, evidence and is tainted by unscientific personal feelings or personal prejudice.

“We wish to stress here that such reasoning is without basis and grossly unfair to the appellants and other male sufferers of GID.

“The present case has absolutely nothing to do with homosexuality. This case is about male Muslims with a medical condition called GID,” Hishamudin told the Malaysian Insider.

He added the judge had also failed to acknowledge medical evidence presented before her.

State authorities had also failed to rebut the medical report presented by psychiatrist Dr Ang Jin Kiat and the expert opinion of consultant psychiatrist Dr Deva Dass on the medical condition.

“The state mufti had tendered his opinion when the dispute landed in the court.

“We wish to make it clear that whether or not Section 66 is consistent with the percepts of Islam is not an issue with the present case,” Hishamudin said.

According to the medical report, the appellants were diagnosed with GID, had undergone hormone treatment and went by feminine names in their daily lives.

“According to psychiatrists, they are actually female in spirit, trapped in a male body and so they cross-dress,” Phillip told the Malaysian Insider.

He added this was not the choice of his clients and that the GID would be etched to them for the rest of their lives.