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Malaysia Sustains Transsexuals Restrictions

Published: 12/10/2012 12:18:20 PM GMT
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CAIRO - A Malaysian high court has dismissed a challenge by a group of Muslim transsexuals to an Islamic legal provision barring men from wearing women's clothes or dressing up as females, saying Muslims cannot be exempted fr (more)

CAIRO - A Malaysian high court has dismissed a challenge by a group of Muslim transsexuals to an Islamic legal provision barring men from wearing women's clothes or dressing up as females, saying Muslims cannot be exempted from Shari`ah legal provisions.

“In my view, it sets a very dangerous precedent, because it's effectively saying that state-enacted Islamic law overrides fundamental liberties,” Aston Paiva, a lawyer representing the transsexuals, told The New York Times on Friday, October 12.

“She has basically said that even if it conflicts with freedom of expression, the Islamic laws override the Constitution,” he added, referring to the judge. 

Sex Change Operations: Allowed?

Changing One's Gender from an Islamic Perspective

The application to the court to review the law was brought by four Muslims who were born male but act and dress as women in the first time anyone had sought to challenge the ban in a secular court.

The Negeri Sembilan High Court ruled that because the litigants are Muslim and were born male, they must adhere to the Islamic law.

The judge had also ruled that Part II of the Federal Constitution - which guarantees Malaysians fundamental liberties such as equality before the law, freedom of religion, and which prohibits slavery and enforced labor among others - is exempted by section 66 of the Negri Sembilan Shari`ah Criminal Enactment 1992.

Penalties for cross-dressing differ in individual states, but in Negeri Sembilan, where the case was heard, convicted offenders may be sentenced to up to six months in prison, fined as much as $325 or both according to section 66 of the state's Islamic criminal code.

According to Islamic law, changing gender in general is prohibited as it is considered changing of Allah's creation which is not allowed.

The change is permissible, however, if a person has sex organs that carry the ‎features of both the male and female sex (a hermaphrodite).

In this case those in ‎charge should decide if the organs tend to be ‎more feminine, then the person ‎should be helped either by surgery or hormonal treatment to be confirmed into the ‎female gender, and vice versa.

The change in such a case is considered a means of treatment to help a sick ‎‎person overcome his illness, not a change of Allah's creation.

Paiva said that his clients, who have been medically diagnosed to have a gender identity disorder, only wanted the court to declare that Section 66 “does not apply to anyone with a gender identity disorder.”

Superseding Constitution

The court ruling was widely criticized by applicants and human rights advocates as violating basic freedoms.

“I'm disappointed because it basically deprives me of my freedom and deprives me of the right for me to be myself,” one of the litigants, whose legal name is Mohammad Juzaili bin Mohammad Khamis, said of the verdict.

“Now that it's out and the court decision is not in our favor, I'm concerned that more arrests, more harassment will happen again and again,” added the 25-year-old, who has been fined 1,000 ringgit on three separate occasions for dressing as a woman.

Thilaga Sulathireh, a researcher and advocate for transgender rights who attended the hearing, described the ruling as shocking.

“It basically tells everyone that Muslims have no rights,” Sulathireh said.

“It's basically governing how one chooses to dress and how one chooses to express oneself. It's a very shocking judgment.”

The ruling was also criticized by civil liberties lawyer Syahredzan Johan, saying that is poses a worrying trend that the judiciary has been putting Islamic law above all other laws in Malaysia's dual-track court system.

“There is a worrying trend in which the judiciary appears to place Islamic enactments on a higher pedestal than the Constitution,” Syahredzan told The Malaysian Insider on Friday.

“Islam is the religion of the Federation, but that does not mean that 'Islam', or what the authorities deem as 'Islam', supersedes other Constitutional provisions.”

Muslim Malays form about 60 percent of Malaysia's 26-million population, while Christians make up around 9.1 percent.

Malaysia offers the image of a model Muslim country, heading towards the status of developed nation with huge buildings, beautiful cities and a fast track economy.

Reproduced with permission from