Three transgender women from the state of Negeri Sembilan are asking the court to strike down a state law that prohibits ''any male person who, in any public place wears a woman's attire or poses as a woman,'' which has been used repeatedly to arrest transgender women.
All three petitioners, who identify as female but are described as ''male'' on their national identification cards, have been arrested solely because they dress in attire that state religious officials deem to be ''female.''
''Under discriminatory state laws, transgender women in Malaysia face a daily risk of arrest just for being themselves,'' said Neela Ghoshal, senior researcher onlesbian, gay, bisexual and transgender rights (LGBT) at Human Rights Watch. ''The government shouldn't be harassing and punishing transgender people just for peacefully going about their lives.''
Human Rights Watch research carried out in January in four Malaysian states and the federal territory of Kuala Lumpur found that state religious department officials and police have subjected transgender women to various abuses, including sexual and physical assault, extortion, and violations of privacy rights.
Most of those arrested receive hefty fines and are forced into ''counseling'' sessions where officials from the state Islamic Religious Department lecture them on ''being a man,'' while a few have been sent to prison.
Muslims, who according to government statistics make up about 60 percent of Malaysia's population, are subject to state-level Sharia (Islamic law) offence ordinances, in addition to the federal criminal law. Each state's Islamic Religious Department enforces the Sharia laws. Sharia law in all 13 Malaysian states prohibits Muslim ''men'' from dressing as ''women.'' The laws do not define what constitutes a man, nor what qualifies as women's attire.
Some states prohibit wearing women's attire or ''posing as a woman'' only when it is for ''immoral purposes,'' while in other states the ban is absolute. Penalties vary by state: in Negeri Sembilan, convicted offenders under section 66 of the Syariah Criminal Enactment 1992 may be sentenced to up to six months in prison and fined up 1000 ringgit (US$325).
Three states also criminalise ''female person posing as man,'' although Human Rights Watch has not documented any cases in which transgender men have been arrested under these laws.
''People are being criminalised because of something they did not choose and cannot change - it's akin to penalising someone for the color of their skin,'' the applicants' lawyer, Aston Paiva, told Human Rights Watch. ''It's a civil rights issue. It's about harming a person's dignity, and devaluing and degrading them because of who they are.''
The applicants first challenged the constitutionality of the state laws with the Negeri Sembilan High Court in February 2011. The High Court judge rejected their application in October 2012 on the grounds that the petitioners, as Muslims, were bound by state Sharia law and that constitutional provisions protecting fundamental liberties were therefore irrelevant.
Nisha Ayub of Justice for Sisters, a transgender activist group, told Human Rights Watch: ''This is a very important case for all transgender women in Malaysia. The court has the chance to make clear that we are entitled to the same constitutional rights as other Malaysians.''
The national Registration Department routinely rejects transgender women's applications to legally change their gender, leaving Muslim transgender women exposed to repeated arrests. One woman told Human Rights Watch she had been arrested over 20 times.
Application of vague laws that fail to define what constitutes women's attire has resulted in some transgender women being arrested simply on the basis of their hairstyle or - as in the case of transgender women who are undergoing hormone replacement therapy - because they have breasts, even if they are wearing clothing deemed masculine.
State religious department officials at times subject transgender women to physical or sexual violence while during arrests, groping their genitals or beating them. Although several transgender women have filed police reports after such abuse, police have not been willing to hold the religious department officials accountable for violating the law.
Transgender women are often held in cells with men, where they are subjected to further sexual violence at the hands of wardens or fellow detainees.
Transgender women told Human Rights Watch that police are sometimes directly involved in arrests, in some cases based on a vague provision in the federal criminal code that prohibits ''indecent offenses.'' Police also accompany religious department officials on raids against Muslim transgender women.
At times, police arrest Muslim transgender women on their own initiative, solely for purposes of extortion. Several people told Human Rights Watch that when transgender women resisted police attempts to extort bribes from them or were unable to pay, they were turned over to the state religious authorities.
''The Malaysian authorities' abuses against transgender women are an assault on human dignity and violate their basic rights,'' Ghoshal said. ''It's horrifying to hear about religious department officials stripping transgender women in front of cameras, poking and prodding at their genitals, and punching them.''
Malaysia's laws against ''cross-dressing'' are contrary to the rights to nondiscrimination, privacy, and freedom of expression and movement recognised by the Universal Declaration of Human Rights, whose provisions are considered reflective of customary international law.
The abusive treatment of transgender women by religious department authorities and the police violates the prohibitions against arbitrary arrest and cruel, inhuman and degrading treatment. Many of these international legal protections can also be found in Malaysia's federal constitution, such as the rights to freedom of expression (article 10), equal protection (article 8), and freedom of movement (article 9).
An official from the federal Department of Islamic Development Malaysia (JAKIM), who spoke to Human Rights Watch on the condition of anonymity, acknowledged that, ''Arresting or punishing anyone is not going to change them.'' However, the department has remained silent on the abuses carried out by state religious departments.
A report from the Malaysian Ministry of Health, submitted as part of an affidavit by PT Foundation, a nongovernmental health organization in Malaysia, states that laws prohibiting cross-dressing have a negative impact on the fight againstHIV/AIDS by driving underground the transgender community, considered among the most at-risk populations for HIV infection.
If the appeal is denied, the applicants could take their case to the federal court, the country's highest appeals court.
''If the court of appeal hearing is successful, and the ladies are allowed to be who they are, it will be a triumph for citizens of Malaysia to actually see justice being served,'' said Ratna Osman, executive director of Sisters in Islam, an organisation based in the national capital, Kuala Lumpur.
''Such a decision would be in accordance with the Constitution, and also the basic Islamic principles to uphold human dignity.''
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