Prosecutions for ‘Cross-Dressing’ Undermine Privacy, Free Expression Rights
“Serafina,” like many transgender women in Malaysia, has been arrested and sexually assaulted by state religious department officials for wearing women’s clothing.© 2014 Javad Tizmaghz for Human Rights Watch
No one should go to prison because of the clothing they wear. Malaysia’s religious department officials should never have arrested these women, and the judge should never have sentenced them.
(Bangkok) – An Islamic law court in Malaysia has sentenced 16 transgender women to seven days in prison and a fine for “cross dressing,” in violation of their rights to freedom of expression and privacy, Human Rights Watch said today.
On June 9, 2014, a Sharia court in Malaysia’s Negeri Sembilan state sentenced the 16 women in a hearing in which they had no access to a lawyer. State religious department officials arrested the women, along with one transgender child, at a wedding party in a private home on the night of June 8 and 9 under the state’s Sharia law, which criminalizes “a male person posing as a woman.” All pleaded guilty, except the child, who was released.
“No one should go to prison because of the clothing they wear,” said Neela Ghoshal, senior researcher onlesbian, gay, bisexual and transgender (LGBT) rights at Human Rights Watch. “Malaysia’s religious department officials should never have arrested these women, and the judge should never have sentenced them.”
The religious department officials had infiltrated the wedding party and arrested the transwomen, several of whom were wedding planners, known locally as “mak andam,” while others were invited guests at the wedding. The officials beat one of the women – choking her and kicking her – and tore another woman’s clothing in the course of the arrest, according to Justice for Sisters, a Malaysian transgender rights group. After they were sentenced on June 9, because they are legally considered “men,” they were transferred to the male ward of Sungai Udong prison. There, prison authorities forcibly shaved their heads in what the women said was an effort to negate their gender identity.
On June 11, a defense lawyer filed a request to have the women’s sentences re-evaluated and to secure their release on bail. According to Justice for Sisters activists at the hearing, the judge’s actions appeared to reflect considerable personal bias in the case. The judge asked the accused, “Wouldn’t it be better if [you] are in prison?” He told them that their shaved heads made them “handsome.” He set bail conditions that were impossible for many of the women to meet, including that their parents – some of whom lived in distant states or were ill – physically come to court within 30 minutes to bail them out. The women served five days of their sentence before prison officials released them early on June 13 since their release date fell on a weekend.
Muslims in Malaysia are subject to both federal criminal law and to state-level Sharia criminal enactments, which vary from state to state. All 13 states and the federal territories criminalize transgender women, and at least three states criminalize transgender men, solely on the basis of how they dress. Section 66 of the Negeri Sembilan Syariah Criminal Enactment states, “Any male person who, in any public place wears a woman’s attire and poses as a woman shall be guilty of an offence.” The law imposes a sentence of up to 1000 ringgit (about US$300) and six months in prison.
Malaysia’s National Registration Department refuses to allow transgender people to change the gender markers on their identity cards in order to match the gender they identify with, leading to unending cycles of arrest.
The constitutionality of the law has been challenged in a case currently before the Putrajaya Court of Appeal. The petitioners – three transgender women who have been arrested under the Negeri Sembilan law in previous incidents – argue that the law violates rights protected by Malaysia’s constitution, which is superior to state Sharia law. These include freedom of expression (article 10), equal protection (article 8), and freedom of movement (article 9). Human Rights Watch has submitted an amicus (“friend of the court”) brief, arguing that the law also violates rights to nondiscrimination, privacy, and freedom of expression and movement recognized by the Universal Declaration of Human Rights. The constitutional challenge was heard in part on May 22, and has been adjourned to July 17.
“The discriminatory behavior of both the religious department officials and the Sharia court judge makes it clear that the law against ‘cross-dressing’ has got to go,” Thilaga Sulathireh, an activist with Justice for Sisters, told Human Rights Watch. “Not one more of our transgender sisters should be subjected to this kind of brutality, humiliation and injustice.”
The Negeri Sembilan law is not only discriminatory, Human Rights Watch said, but in the case of the 16 women, was applied in an arbitrary manner. One of the women arrested on June 8 was wearing gender-neutral clothing, but was told by the religious department officials that they were arresting her because they judged her mannerisms to be too feminine. Further, while the law refers to what one wears “in any public place,” the officials in this case raided a wedding party at a private home. The wedding hosts sought to file a complaint against the religious department officials with the civil police in Negeri Sembilan, but the police refused to receive the complaint.
“State officials and police have long had a free hand to violate the rights of transgender women,” Ghoshal said. “The appeals court’s ruling next month will have enormous impact on whether transgender people will continue to endure arrests and a barrage of abuse in Malaysia.”