(Bangkok) – Transgender women in Malaysia have filed a groundbreaking court case challenging a law that prohibits them from expressing their gender identity, Human Rights Watch said today. On May 22, 2014, the Putrajaya Court of Appeal is expected to hear a challenge to the constitutionality of the laws.

Three transgender women from the state of Negeri Sembilan are asking the court to strike down a state law that prohibits “any male person who, in any public place wears a woman’s attire or poses as a woman,” which has been used repeatedly to arrest transgender women. All three petitioners, who identify as female but are described as “male” on their national identification cards, have been arrested solely because they dress in attire that state religious officials deem to be “female.”

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

Human Rights Watch research carried out in January in four Malaysian states and the federal territory of Kuala Lumpur found that state religious department officials and police have subjected transgender women to various abuses, including sexual and physical assault, extortion, and violations of privacy rights.

Most of those arrested receive hefty fines and are forced into “counseling” sessions where officials from the state Islamic Religious Department lecture them on “being a man,” while a few have been sent to prison.

Muslims, who according to government statistics make up about 60 percent of Malaysia’s population, are subject to state-level Sharia (Islamic law) offence ordinances, in addition to the federal criminal law. Each state’s Islamic Religious Department enforces the Sharia laws. Sharia law in all 13 Malaysian states prohibits Muslim “men” from dressing as “women.” The laws do not define what constitutes a man, nor what qualifies as women’s attire.

Some states prohibit wearing women’s attire or “posing as a woman” only when it is for “immoral purposes,” while in other states the ban is absolute. Penalties vary by state: in Negeri Sembilan, convicted offenders under section 66 of the Syariah Criminal Enactment 1992 may be sentenced to up to six months in prison and fined up 1,000 ringgit (US$325). Three states also criminalize “female person posing as man,” although Human Rights Watch has not documented any cases in which transgender men have been arrested under these laws.

“People are being criminalized because of something they did not choose and cannot change – it’s akin to penalizing someone for the color of their skin,” the applicants’ lawyer, Aston Paiva, told Human Rights Watch. “It’s a civil rights issue. It’s about harming a person’s dignity, and devaluing and degrading them because of who they are.”

The applicants first challenged the constitutionality of the state laws with the Negeri Sembilan High Court in February 2011. The High Court judge rejected their application in October 2012 on the grounds that the petitioners, as Muslims, were bound by state Sharia law and that constitutional provisions protecting fundamental liberties were therefore irrelevant.

Nisha Ayub of Justice for Sisters, a transgender activist group, told Human Rights Watch: “This is a very important case for all transgender women in Malaysia. The court has the chance to make clear that we are entitled to the same constitutional rights as other Malaysians.”

The national Registration Department routinely rejects transgender women’s applications to legally change their gender, leaving Muslim transgender women exposed to repeated arrests. One woman told Human Rights Watch she had been arrested over 20 times. Application of vague laws that fail to define what constitutes women’s attire has resulted in some transgender women being arrested simply on the basis of their hairstyle or – as in the case of transgender women who are undergoing hormone replacement therapy – because they have breasts, even if they are wearing clothing deemed masculine.

State religious department officials at times subject transgender women to physical or sexual violence while during arrests, groping their genitals or beating them. Although several transgender women have filed police reports after such abuse, police have not been willing to hold the religious department officials accountable for violating the law. Transgender women are often held in cells with men, where they are subjected to further sexual violence at the hands of wardens or fellow detainees.

Transgender women told Human Rights Watch that police are sometimes directly involved in arrests, in some cases based on a vague provision in the federal criminal code that prohibits “indecent offenses.” Police also accompany religious department officials on raids against Muslim transgender women. At times, police arrest Muslim transgender women on their own initiative, solely for purposes of extortion. Several people told Human Rights Watch that when transgender women resisted police attempts to extort bribes from them or were unable to pay, they were turned over to the state religious authorities.

“The Malaysian authorities’ abuses against transgender women are an assault on human dignity and violate their basic rights,” Ghoshal said. “It’s horrifying to hear about religious department officials stripping transgender women in front of cameras, poking and prodding at their genitals, and punching them.”

Malaysia’s laws against “cross-dressing” are contrary to the rights to nondiscrimination, privacy, and freedom of expression and movement recognized by the Universal Declaration of Human Rights, whose provisions are considered reflective of customary international law. The abusive treatment of transgender women by religious department authorities and the police violates the prohibitions against arbitrary arrest and cruel, inhuman and degrading treatment. Many of these international legal protections can also be found in Malaysia’s federal constitution, such as the rights to freedom of expression (article 10), equal protection (article 8), and freedom of movement (article 9).

An official from the federal Department of Islamic Development Malaysia (JAKIM), who spoke to Human Rights Watch on the condition of anonymity, acknowledged that, “Arresting or punishing anyone is not going to change them.” However, the department has remained silent on the abuses carried out by state religious departments.

A report from the Malaysian Ministry of Health, submitted as part of an affidavit by PT Foundation, a nongovernmental health organization in Malaysia, states that laws prohibiting cross-dressing have a negative impact on the fight against HIV/AIDS by driving underground the transgender community, considered among the most at-risk populations for HIV infection.

If the appeal is denied, the applicants could take their case to the federal court, the country’s highest appeals court.

“If the court of appeal hearing is successful, and the ladies are allowed to be who they are, it will be a triumph for citizens of Malaysia to actually see justice being served,” said Ratna Osman, executive director of Sisters in Islam, an organization based in the national capital, Kuala Lumpur. “Such a decision would be in accordance with the Constitution, and also the basic Islamic principles to uphold human dignity.”

For personal accounts of human rights violations against transgender women, please see below.

Background: Legal Status of Transgender People in Malaysia

Transgender women, known as mak nyah in the Malay language (Bahasa Malaysia), have long been recognized in Malaysian traditional society, as documented in The Mak Nyah: Malaysian Male to Female Transsexuals, a 2002 book by a Malaysian criminologist, Teh Yik Koon. In the early 1980s, a team of Malaysian doctors working at a public hospital carried out sex reassignment surgery on a handful of transgender people. These transgender women were subsequently able to change the gender marker on their national identity cards from male to female.

However, a rise in conservative Islam led the National Fatwa Council in 1983 to issue a fatwa banning the surgery. Although fatwas from the National Fatwa Council do not carry legal authority, Malaysian doctors ceased performing the procedure. The Registration Department has since refused dozens of requests by transgender people to change their names and gender markers on their identity cards. This includes those who are on hormone replacement therapy or who have undergone sex reassignment surgery outside Malaysia – most often in neighboring Thailand – leaving them in legal limbo.

Abuses under Malaysia’s Cross-Dressing Laws

Sexual Assault

Religious department officials sexually assaulted Victoria, a transgender woman in Seramban, the capital of Negeri Sembilan state, when they arrested her for cross-dressing in 2011. Victoria told Human Rights Watch:

They were rough. One of them squeezed my breasts. I was completely humiliated.… They stripped me completely naked. One of them took a police baton and poked at my genitals. Everyone was looking – the men [religious department officials] as well as the women. They took photos of my naked body.

They treated me like an animal. I said “Why do you treat me as an animal? I am also a human being. I’m a child of God.”

Adik, another transgender woman in Seremban, was detained and sexually assaulted by religious department officials in early 2012, apparently because they were curious about her body:

I was picked up but I was not taken to the religious department. They touched me, molested me, and then allowed me to go. It wasn’t an official raid. They were just going around in a car.… They put me in the back seat of the car, between them. While [two of them] were touching my breasts and holding them, they asked “How did you get this done?” They drove around for about half an hour before they let me go.

Physical Assault

Serafina, a transgender woman in Seremban, told Human Rights Watch that in May 2010, religious department officials, carrying out a nighttime raid, caught her in the street wearing pajamas, which they apparently judged to be too feminine:

They chased me into a hotel and grabbed me. They hit me, punched me in the face, choked me, and told me I was guilty. I felt dizzy and collapsed. One of them tried to stomp on my chest, but I was saved by someone who pulled me away.

Nisha Ayub of Justice for Sisters described a case from Malacca in which religious department officials arrested a transgender woman: “They actually kicked her, punched her, to the extent that she had to be admitted to the hospital, because she had hernia problems. Because of the beating, she had to go for surgery.”

Violation of Privacy Rights

In 2012, religious department officials forcibly entered the home of Izzati, a transgender woman in Seremban, while conducting a warrantless raid. Izzati, who as a Christian was not subject to Sharia law, was in front of her apartment building with three transgender Muslim friends. When the religious department officials arrived in the neighborhood, Izzati’s three friends went upstairs to her apartment and locked the door. Izzati remained downstairs, where the officials confronted her:

About 10 religious authorities were there. They came with a van, a car, and six motorcycles. They checked my IC [identity card] and saw I wasn’t Muslim. Then they went up to my room because they [had seen] my friends going up to my room. They forcibly took the keys out of my handbag. They pulled the bag from me, looked into it, pulled the keys out, and opened the grill [on the front door]. Then they went upstairs, opened the door, took photos, and arrested and charged the three Muslim trans women who were upstairs. They were charged with cross-dressing.

Extortion

Several transgender women told Human Rights Watch they were subjected to extortion at the time of arrest. Aisah was arrested by religious department officials in the southern state of Johor in 2010: “One of them recognized me from previous cases and asked me to give him my money and my hand phones. Then he released me, and warned me ‘I don’t want to ever see your face here again.’”

Extortion can be combined with sexual assault. A staff member of the Family Health Development Association, a sexual and reproductive health organization in the northern state of Penang that works with the transgender community, told Human Rights Watch: “Enforcement of the sodomy law is a threat here. But for transgender people, the religious law on cross-dressing is a bigger risk. Some give a bribe or sexual services when they are arrested – so the risk of HIV increases.”

Leela, a transgender outreach worker at a nongovernmental organization, was arrested by the regular police in Kuala Lumpur in 2013. She believes the police intended to frighten her into paying a bribe:

I had just finished work, and was going to buy nasi lemak [a rice dish]. I was not doing sex work, but was in a sex work place. There are lots of police there who always catch transgenders who do sex work – they want money. Three of them surrounded me. I said, “What did I do?” They wanted to charge me under Sharia law for cross-dressing, even though they were civil police.

They took me to Chow Kit police station and put me in the lockup. A police officer tried to scare me by saying they would take me to the Sharia law court. I said “Send me – I didn’t do anything wrong.” I think he was trying to scare me in order to get money, but I knew my rights. He called a high officer, who mentioned the same Sharia law. They did not talk about civil law. Most transgenders, if you don’t give money, they send you to the Sharia law court. After half an hour he released me.

Arbitrary Arrest

Enforcement of cross-dressing laws is highly arbitrary, leaving transgender women at risk of being arrested regardless of whether they are in public or in private, and regardless of how they dress or conduct themselves.

Aisah, who has undergone hormone replacement therapy, was one of 76 people arrested when religious department officials raided a disco in Johor in 2009:

One thing I don’t understand – I was wearing a T-shirt, shorts and flip flops, and they charged me with [impersonating] a woman…. They took our statements one by one. I asked them why I was accused of wearing women’s clothing. They said, “Because you have breasts.”

Beka, a transgender outreach worker at an organization that carries out HIV prevention, was arrested in Kedah state for distributing condoms. Religious department officials stopped her and searched her bag. When they found condoms, they said they would charge her with prostitution. However, when she arrived at the state religious department, she was charged instead with impersonating a woman. She had been arrested previously when wearing women’s clothes, she said, but, “I did not really feel afraid [of getting charged] that time because I was just wearing jeans and a t-shirt – but they still accused me, even though I was not dressed as a woman that day.”

Beka’s most recent arrest, in 2012, was at a beauty pageant – a private, invitation-only function in an upscale hotel in Kedah. Although the law in Kedah only applies to cross-dressing in public, religious department officials raided the private function.

Serafina, one of the plaintiffs in the Negeri Sembilan case, told Human Rights Watch that state religious officials arrested her three times in 2009. In addition to the occasion when she was wearing pajamas that were judged to be feminine, she was arrested on another occasion wearing a loose t-shirt and tennis shorts, but had long hair and wore hairbands tied around her wrist.

Impact of Cross-Dressing Laws on Transgender Malaysians

The laws that prohibit “impersonating a woman” or “impersonating a man” severely impact the ability of transgender Malaysians to live their lives in accordance with their own sense of self, and cause them to live in fear, constantly exposed to the threat of arrest and mistreatment. The laws also impede HIV prevention efforts and contribute to discrimination in the public and private sectors.

Nisha Ayub of Justice for Sisters said the laws serve as an obstacle to transgender women seeking access to justice when they are victims of violence: “A lot of the trans community faces [violence], but a lot of them don’t want to report it, because they feel that just because they are trans people, therefore they’re not protected under the law.”

Beka, from Kedah, was fired from her job as a waitress after she was arrested for “impersonating a woman” and her photograph appeared in the local papers. “My manager knew I was a mak nyah,” she told Human Rights Watch. “But he was upset that I was in the paper, so he fired me.”

Tanusha commented on the cross-dressing law that was passed in 2012 in Pahang, the last state in Malaysia to add such a statute to its books: “I feel unprotected. We’re not criminals – we’re just wearing what we want. I’m afraid now that if I’m just walking, they’ll catch me, without me doing anything criminal. It affects me a lot. It’s not reasonable to be arrested just for appearance.”

Sulastri, a transgender activist in Kuala Lumpur, said: “The government needs to accept us for what we are. If they want us to contribute to the society of the country, they need to recognize us legally. Then the stigma will reduce.”