Written by Janice Ooi
Featured image: Screenshot from “Human sexuality is complicated…” by vlogbrothers, 12 Oct 2012, YouTube
In July 2015 during Ramadan, a photo went viral among Malaysian social media.
Lily is a Thai national visiting Kuantan who had been assaulted by a group of youths armed with steel rods and hockey sticks. The viral photo was of her shaven head, covered in huge, grotesque scars with multiple stitches. Lily is transgender. Unfortunately, her story is only one of the many.
Criminalisation of transgender people in Malaysia
Sharia law on Transwomen (MtF)
S.28 of the Akta Kesalahan Jenayah Syariah (Wilayah-wilayah Persekutuan) 1997 (“Sharia Criminal Acts in the Federal Territories 1997”) provides that it is an offence for a man to pose as a woman “for immoral purposes” and is liable for a fine up to RM1000 or imprisonment for up to a year or both. Despite the arbitrariness of what is to be considered “immoral purposes”, the Federal Territories’ provision is perhaps the most difficult to satisfy among the similar provisions in other states. The Federal Territories are not alone – Terengganu, Selangor, Sarawak, Pahang, Penang, Perak, Johor reflect the same provision in their Sharia laws. In Melaka, it is an offence for a man to “wear women clothing” and “impersonate a woman” “without any reasonable excuse” – which then begs the question, what is a reasonable excuse? In the remaining five states, the offence isn’t even qualified by the question of “immoral purpose” or “reasonable excuse” – it imposes strict liability for men who pose as women (Negeri Sembilan, Sabah, Kelantan, Kedah, Perlis). Kelantan, Kedah and Perlis even go so far as to call the relevant section as “Section 7 Pondan” – a derogatory term.
Sharia Law on Transmen (FtM)
Surprisingly – or perhaps, unsurprisingly – transgender men fare slightly better than transgender women in terms of persecution under Sharia law. Whether this is because there is an inherent sexism in the law, or whether it is simply easier to identify and convict transgender women – we’d never know. What is apparent is the absence of a parallel offence in Sharia law for women posing as men, mirroring those for men posing as women. This absence is noticed in 11 states – the Federal Territories, Johor, Kedah, Kelantan, Melaka, Negeri Sembilan, Penang, Perak, Sarawak, Selangor, and Terengganu. S.34 in the Pahang provides an offence for women posing as men, s.7 (under the same “Pondan” section) in the Perlis provides for the same, and s.92 in the Sabah provides for an offence of “men posing as women and vice versa”.
While all state religious authorities recognise “men posing as women” including “men wearing women clothing” as an offence, only 3 out of 14 state authorities recognise “women posing as men” as an offence – a strange dichotomy indeed.
Non-Muslim transgender people
Of course, Sharia Law only affects Muslims – and all the above only applies if the transgender person in question is a Muslim. In a research article by Yik Koon Teh in 2001, it appears that non-Muslim transgender people do not face official restrictions – only occasionally being caught by the police during their raids for cross-dressing, which amounts to “indecent behaviour” under s.21 of the the Minor Offences Act 1955. There is no clear definition on what constitutes “indecent behaviour” – and while the penalty is minimal at best (RM25 – RM50), it is the indignity that the transgender people must live with, by being labelled as “immoral” or “indecent”, that truly is the heart of the problem.
Constitutionality of discriminatory religious laws
In 2014, the Negeri Sembilan Religious Department arrested 16 transgender women at a wedding party. When arrested, transgender people are treated harshly by the religious police – often degrading them and feeling them up while taking off their clothes – and in fact, the humiliation and violence continues in detention areas. In the same year, a challenge was made in the Putrajaya Court of Appeal against s.66 of the Sharia Law in Negeri Sembilan, where it was held that the state’s Sharia-law ban on cross-dressing was unconstitutional and void because it was “degrading, oppressive, and inhuman” and transgender people live in “uncertainty, misery, and indignity” because of it. The court acknowledged that it violated the appellants’ right to live with dignity, earn a livelihood, and directly affects their freedom of movement, expression and equal protection of the law and that they “will commit the crime of violating s.66 the very moment they leave their homes to attend to the basic needs of life, to earn a living, or to socialise”. Alas, this was no more than a fleeting victory. In 2015, the decision was overturned by the Federal Court – simply on procedural grounds, many deeming it to be “a major setback to the battle for the rights of [Malaysia’s] transgender community”.
Official gender identity recognition and gender change
Transgender people also are unable to legally change the gender markers on their Identity Cards (ICs) or passports to reflect their gender identity, even though there is no law that explicitly prohibits gender recognition for transgender people, a deputy minister in the Prime Minister’s Office going so far as to tell parliament in 2012 that such changes are not permitted even for those who have had sex reassignment surgery. The National Registry had continued to deny transgender applicants the right to change their ICs, sometimes without explanation – probably empowered by the previous statement and the uncertain caselaw surrounding this issue. The courts have both refused and accepted requests to recognise gender reassignment on paper – although recent caselaw seems hopeful.
Sex reassignment surgery was one available in Malaysia, however, the National Fatwa Council issued a fatwa banning such surgeries in response to a rise in conservative Islamic influences. While fatwas do not have legal authority, Malaysian doctors have stopped performing the procedure – forcing transgender people to seek the surgery outside Malaysia, most often in the neighbouring Thailand.
In Malaysia, there isn’t any law that protects against employment discrimination based on gender identity or expression. Employers tend to reduce the transgender applicant to nothing more than details about their gender – ignoring their qualifications and capabilities. Employers also often ask them to dress in a manner which does not align with their gender identity – this happens particularly with transgender women – prompting them to reject the work offered. Some employers go so far as to claim that hiring a transgender person would result in the company getting a “bad name”. This forces many transgender women into sex work to earn a living – despite the job being often violent and dangerous.
Civil unions and family
As discussed in the previous article, same sex unions are invalid in Malaysia. Since their gender identities are not recognised, heterosexual transgender people are not legally allowed to enter into civil unions or marriage with their partners. This was the case when Jessie Chung, a transgender woman, married Joshua Beh in 2005 – their union was declared invalid by the authorities and denounced by several religious groups. Homosexual transgender people face double discrimination in this aspect.
The view of the family structure in Malaysia remain heteronormative and binary – parents usually involve two different genders. This is not to say that single parents cannot adopt, but there is this odd perception that women are better at child rearing – single women having no restrictions on the gender of children they are able to adopt, but single men being subjected to a review by the Registrar-General of Births and Deaths and Department of Social Welfare before being able to adopt a female child. Because of this biases and discrimination inherent, it is only amplified when a transgender person chooses to adopt. Justice for Sisters, an NGO for transgender activism, stated that transgender people are often viewed, due to lack of information and awareness as immoral and a bad influence on children.
Just recently, a Malaysian won the award of Miss Transsexual Australia 2017. Admittedly, it is a little too much to ask for Malaysia to take a leap from criminalising transgender people, to celebrating them in an elaborate fashion – but one can only hope that the day would come. There is much work to be done, but all hope is not lost. The transgender community in Malaysia is doing amazing things today – and will continue to do so. From activism and advocacy to being professionals in the medical field to winning beauty pageants and even the US Secretary of State’s International Women of Courage Award. If the government and Parliament would take a step back and fulfil their promises to achieve a moderate Malaysia, perhaps a future where all Malaysians – regardless of gender identity or sexual orientation – could live in dignity is a near future indeed.
Janice is a second year law student at UCL.
Both cynical and idealistic, she is one contradiction away from being the living dead (as all law students are).