If you haven’t read part I of this series, check it out here!
Challenging anti-LGBT laws
Fortunately, discriminatory laws in Malaysia have not gone unchallenged. Apart from the ‘anti-sexual diversity law’ that has been disputed recently, ‘anti-gender diversity law’ has also been challenged before.
A series of violent and arbitrary arrests have prompted activists and lawyers to take the matter to court. In 2014, a landmark ruling in the Court of Appeal declared Section 66 of the Negeri Sembilan Syariah Enactment unconstitutional as it was inconsistent with Articles 5, 8, 9 and 10 of the Federal Constitution. In Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors  3 MLJ 5013 , the court found that “[a] person’s dress, attire or articles of clothing are a form of expression, which in our view, is guaranteed under Article 10(1)(a)”.
It would have had a profound impact on all transgender people in the country, Muslims and non-Muslims alike. Opposing views often purport that all religions disapprove transgender people. If there is one change in the status quo – that the state no longer criminalizes people, even if it is just people professing that one specific religion, for “cross dressing” – it may cultivate spaces for education about gender diversity; and ultimately, the acceptance (not just tolerance) of transgender and gender nonconforming people in the country.
That is, if there is no severe backlash from society. It would be naive to think that if these laws were abolished, everything would be fine and dandy. One could imagine parties who are angry with the change would be riled up to take matters in their own hands. Will the victims be protected, or will the perpetrators be free to crusade against transgender people? Who will protect us then? Still, decriminalizing transgender people would be an applaudable step.
Sadly, before we can rejoice, the commendable decision was overruled by the Federal Court on grounds of legal technicalities. It was held that the Court of Appeal had no jurisdiction to declare the law unconstitutional; and their judicial review at the High Court was premature as there was no decision by the public authority.
Counsel representing the Negeri Sembilan government submitted that applicants should have filed their action under Article 4 of the Federal Constitution as they were challenging the constitutionality of the Syariah enactment. Under Article 4, applicants must first obtain leave from a Federal Court judge to pursue their petition.
This is exactly what the man who pleaded not guilty in the Syariah court is doing – the leave for the petition was granted on 14 May 2020. One may deduce that judges are typically conservative, but from the previous transgender case, it seems that the Federal Court only overturned the decision on legal technicalities, not so much on the merits of the case.
Although there will be different grounds (the petition here is to challenge the state’s power to enact laws that are already dealt with by Federal law, which did not exist in the previous transgender case) and points of arguments (it being about sexual relations instead of gender), the LGBT community in Malaysia is waiting with fingers-crossed.
Coming back to gender nonconformity – if gender nonconforming people used to be able to live freely in our tanah air, why are we being robbed of that liberty now? Not only that, why are we being persecuted?
Many scholars and bodies would have the answer in hand – politicization of Islam. In the race among the elites to rule the country, LGBT people are often used as scapegoats. Ex Prime Minister Najib Razak (who has Bugis descent with five genders!) pledged to eradicate us as if we are destroyers of morality and a threat to the country and its official religion.
The lines between politics and religion have blurred in this respect, though it can be inferred that it has always been this way. The issue lies in the encroachment by the state to redefine the religion, especially post-1980. The effect is the strengthening of the powers of the state to dictate people’s lives to the point of uprooting long-existing cultures and phenomena, in addition to invading personal privacy.
The rakyats, to a certain extent, or at least those who are not exposed to alternative sources, are influenced by stances taken by the state and its politicians. This trickles down to formulate attitudes of ordinary citizens against LGBT people in both public and private spheres, for example in the institutions of education, healthcare, and private family life. Even if the narrative is only for Muslims, non-Muslims would use it to fuel their prejudice.
Perhaps you have seen several LGBT people doing fine in your circle, but that per se does not represent the reality. What about the youths and young adults who are dependent on their non-accepting families? What if they are exposed? This potentially endangers not only their mental health, but their lives and livelihood. What about the employment of underprivileged LGBT people, especially trans women? What about fair healthcare for LGBT people, especially the transgender community?
Entering into a new decade, I dread to see leaders of our country throwing us under the bus again just to gain political mileage. As the Malay saying goes “Gajah sama gajah berjuang, pelanduk mati di tengah-tengah”. We must stand stronger and claim the dignity and liberty we rightfully deserve. We belong in Malaysia, exactly as who we are.
Elaine is a CLP student graduated from the University of Essex, UK. They have an interest in human rights and are often fascinated by the multiple facets of human rights. They believe that queer people deserve equal treatment and opportunities, which unfortunately are not granted in many countries including their own.
* This is the personal opinion of the writer and does not necessarily represent the views of ASASIkini.