Transgender Malaysians await court decision

Kuala Lumpur, Malaysia – Nisha Ayub is the face of a community that lives largely in the shadows.

An outreach worker with the PT Foundation, an HIV/AIDS organisation in the Malaysian capital of Kuala Lumpur, Ayub fights for the rights of the country’s transgender women who call themselves Mak Nyah and are mostly ethnic Malay Muslims. 

Faced with discrimination, abuse and harassment, some of the country’s estimated 10,000 Mak Nyah are turning to the law for help. The Appeal Court in the administrative capital of Putrajaya is due to rule on Thursday in a case brought by three transgender women in Seremban against religious laws in the central state of Negri Sembilan, which criminalise any male who “wears women’s attire” or “poses as a woman”.

“It’s a crucial ruling,” said Nisha, who was jailed at the age of 20 for dressing as a woman. “Things are getting more conservative. We are not challenging Islam. This law is a violation of basic human rights for every Malaysian citizen.”

The women’s lawyers argue that their repeated detention in Negri Sembilan contravenes Malaysia’s constitution, which outlaws gender discrimination and guarantees not only freedom of expression and movement, but also the right to privacy, a livelihood and to live with dignity. 

Secular or Islamic law?

The country, which is mostly Muslim but has significant populations of ethnic Chinese and Indians as well as indigenous people, has dual secular and Islamic legal systems. The latter applies only to Muslims and is confined to personal and family law, while the secular system has civil and criminal courts. The constitution remains the supreme law. 

“Ultimately, the law in Malaysia remains secular,” said Aston Paiva, a lawyer representing the Seremban women. “Even Sharia laws are enacted by a secular institution – the state legislative assembly – which has to pass a Sharia law like any other law. Let’s not forget that there are non-Muslims in these legislative bodies. The more people realise this, the more accountability is placed on legislatures; that whatever law they wish to pass, it must be consistent with the constitution.” 

A lower court dismissed an earlier case involving four of the women in 2012. The judge argued that because they were Muslim and had been born male, they had to adhere to Islamic law. Three of them, all diagnosed with gender identity disorder and taking hormones, appealed the decision. If Thursday’s appeal is dismissed, they will be able to take their case to the Federal Court, Malaysia’s highest court. 

“Under discriminatory state laws, transgender women in Malaysia face a daily risk of arrest just for being themselves,” Neela Ghoshal, senior researcher on lesbian, gay, bisexual and transgender (LGBT) rights at Human Rights Watch (HRW), said in a statement. “The government shouldn’t be harassing and punishing transgender people just for peacefully going about their lives.” 

Recent research by HRW in four Malaysian states and Kuala Lumpur found transgender women detained by the police and religious authorities suffered abuses including extortion, violation of their privacy and physical and sexual assault. Most were fined, while some were jailed. 

Any form of institutionalised discrimination that results in sexual minorities being forced underground ... makes our work on HIV prevention a lot harder.

by - Azrul Mohd Khalib, executive committee of the PT Foundation

Discrimination and intolerance towards transgender communities, as well as lesbian and gay people, is common across Southeast Asia. “Lesbian, gay, bisexual, transgender and intersex persons are the targets of discrimination by both state and non-state actors, including members of their own communities, the police, military and militant religious groups,” according to Washington-based Freedom House. “Local laws criminalise acts that are deemed ‘unnatural’, and law enforcement agencies often target and harass activists who advocate for their rights.” 

The Negri Sembilan law against posing as a woman states that those found guilty can face up to six months in prison and a fine of as much as 1,000 ringgit ($310). Three other Malaysian states also make dressing as a woman a criminal act, according to HRW. Islamic officials in Negri Sembilan did not respond to Al Jazeera’s requests for comment. 

Largely excluded from mainstream employment, around 60 percent of Mak Nyah work in the sex industry, according to Ayub, and are seen as among those most at risk for HIV. Health experts worry increasing discrimination could undermine Malaysia’s HIV/AIDS prevention efforts. 

“Any form of institutionalised discrimination that results in sexual minorities being forced underground or into the margins makes our work on HIV prevention a lot harder,” said Azrul Mohd Khalib, who has worked on sexual health issues for more than a decade and sits on the executive committee of the PT Foundation. He worries that more discrimination will lead to an increase not only in HIV infections, but other sexually transmitted diseases too. 

Condemning ‘human right-ism’

Malaysia is “becoming a lot more conservative”, said Thilaga Sulathireh, an activist and researcher who is assisting with the Seremban case. “Generally, we are seeing a lot more resistance and hate speech.” At the UN, countries including France, Germany and Chile urged Malaysia to do more to respect the rights of LGBT people. Sodomy is a crime in Malaysia, and those found guilty face the cane and as long as 20 years in prison. 

Only last week, Prime Minister Najib Razak shocked human rights groups with a speech at the opening of the national Quran Recital Assembly, in which the state news agency quoted him condemning what he called “human right-ism” and “deviationist” teaching, specifically mentioning LGBT.

But three days later, an official statement posted on Najib’s Facebook page stressed his government’s commitment to the Universal Declaration on Human Rights, which recognises the right to non-discrimination, privacy and freedom of expression and movement. 

“Ours is a majority-Muslim nation,” the prime minister wrote. “But our faith respects other faiths and our commitment can be consistent with our constitution and our values.”   

Traditionally, transgender women in Malaysia played key roles in village weddings, planning the ceremony and helping the bride get ready for the big day. In the early 1980s, a number of doctors even carried out sex reassignment surgery on a number of transgender women, which was then recognised on the women’s identity cards.

Then, in 1983, a fatwa issued by Malaysia’s National Fatwa Council outlawed the surgery. 

“Mak Nyah have been in Malaysia for a long time, and sex change was even done here,” Ayub said. “What really changed everything was the fatwa. LGBT was politicised.”

Follow Kate Mayberry on Twitter: @Kate_Mayberry