An Unprecedented Advance for Trans Rights in Malaysia

In a landmark ruling, Malaysia’s Putrajaya Court of Appeal ruled on Friday (Nov. 7) that it is unconstitutional for the state of Negeri Sembilan to criminalize transgender individuals for “cross dressing,” reports the International Gay and Lesbian Human Rights Commission (IGLHRC).

Citing articles of the Constitution of Malaysia that protect fundamental liberties, including equality, freedom from discrimination and freedom of expression, Judge Mohd Hishamudin Yunus of the federal Putrajaya Court of Appeal ruled that Article 66 of the the Negeri Sembilan Syariah Criminal Enactment (1992) is “invalid as being unconstitutional. It is inconsistent with Articles 5(1), 8(1) and (2), 9(2) and 10(1) of the federal constitution,”

“Today’s ruling sets a critical precedent for recognizing and affirming the human rights—and lives—of trans women in Malaysia,” said Grace Poore, regional program coordinator for Asia at IGLHRC. “Long the subject of state-sanctioned violence and persecution, trans Malaysians now have a ruling that recognizes the federal constitution supersedes local laws, particularly when these laws blatantly contravene the protections enshrined in the constitution.”

In the ruling, Judge Yunus writes Section 66 “deprives the appellants of their right to live with dignity,” and “prohibits” transgender people from “moving in public places to reach their respective places of work.” Further, he notes that trans people “could not dress in public in the way that is natural to them,” that “they will commit the crime of offending section 66 the very moment they leave their homes” and be subject to “arrest, detention and prosecution” which is “degrading, oppressive and inhuman.”

In response to a submission by Encik Iskandar Ali, State Legal Advisor of Negeri Sembilan which asserts section 66 “is not prejudicial to the appellants as they are persons of unsound mind,” Judge Yunus writes “in the absence of medical evidence, it is absurd and insulting to suggest that the appellants and other transgender [individuals] are persons of unsound mind.”

State legislatures in Malaysia are empowered to legislate on matters relating to Islam in their jurisdictions. In the majority of Malaysia’s 13 states and the capital, same-sex relations are punishable under sharia law. Convictions carry prison sentences from six months to three years, fines of up to $1,500 and beatings with a cane. This is also true for non-conforming gender expression (such as cross-dressing). Trans individuals who are convicted are sometimes forced to attend Islamic religious classes and promise to stop being trans.