A Court of Appeal judge is disturbed by the continuous persecution of the transgender community by the Negri Sembilan Islamic authorities, since the court is yet to make a decision on the constitutionality of Section 66, which bars cross-dressing.

Justice Mohd Hishamudin Mohd Yunus (left) expressed his dismay when lawyer Aston Paiva, representing three transgenders, submitted an additional affidavit to support the appeal.

The affidavit is one from a group of transgender women charged, fined RM950 and sentenced to seven days’ jail for cross-dressing when arrested by the Negri Sembilan Islamic Department in Bahau last month.

"I am disturbed by this and would advise the state to stop this action pending the disposal of this appeal," said Justice Hishamudin, who is heading the three-member bench.

The three transgenders, who are wedding planners, are challenging the constitutionality of Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992, which bars and makes it an offence for men to dress as a women.

While Section 66 of the enactment only stipulates it an offence for a male to dress as a woman, it does not make it an offence for woman who cross-dresses as a male.

The three argued that the section restricts their movement, discriminates against their gender and violates other fundamental liberties, which includes liberty of a person in terms of his or her dignity, privacy an livelihood, and freedom of expression.

Negri Sembilan and four other states - Perlis, Kelantan, Kedah and Sabah - have state Islamic provisions barring cross-dressing and making it an offence.

In the Kuala Lumpur, it is an offence for a person who cross-dresses and engages in immoral activities, but not cross-dressing alone.

The other Court of Appeal judges hearing the matter are Justice Aziah Ali and Justice Lim Yee Lan.

Negri Sembilan legal adviser Iskandar Ali Dewa and senior federal counsel Suzana Atan objected to the admission of the fresh affidavit on grounds that the person submitting it is not the deponent (appellant) in the case.

However, Aston submitted that since the person is also a transgender and affected by the decision, the affidavit should be allowed.

Following this, the Court of Appeal allowed the affidavit to be admitted, and Justice Hishamudin recognised this case is the only case of its kind before the court.

The hearing of this appeal also attracted international watchdog Human Rights Watch (HRW) who was given amicus curiae (allowed to sit in and give opinion). HRW was represented by Nizam Bashir.

Transgender are of ‘unsound mind’

Iskandar, representing the Negri Sembilan Islamic Department, its director, its chief enforcement officer, chief prosecutor and the state government, said transgenders can be classified as having unsound minds, but added it could be cured by injecting hormones.

He said they should not treat cross-dressing as a solution to this disorder.

When asked by the bench whether there was medical proof on this claim, Iskandar admitted he does not have any. Justice Aziah, however, said it was not the problem of the mind but a psychological disorder.

To this, the state legal adviser said that just because transgenders have that condition does not mean that the laws do not apply to them.

“They are men and should dress as men,” Iskandar said.

Justice Hishamudin said he finds it hard to accept this as it is a recognised fact that gender identity disorder (GID) is a psychological disorder, which is recognised worldwide.

Despite this, Iskandar stood his ground saying that just because they have GID does not mean the law is wrong and that it affects their fundamental liberties.

“If someone has a mental problem, it does not mean the law should be declared void,” he said.

He said the Section 66 was still good piece of law, although he admits it does not make it an offence for women to cross-dress as men.

Transgenders subject to Islamic laws

Meanwhile, senior federal counsel Suzana Atan, representing the federal government, said transgenders are subject to Islamic laws.

She said that Islam only recognises men, female and khunsa (hermaphrodite, or people with both sexual organs) and not cross-dressers.

“Islam does not allow men to become women or women to become men. However, in Islam, we recognise khunsa. Section 66 is there to control morality or prevent Muslims from engaging in immoral activities,” she said.

She said because the transgenders concerned are Muslims, they are subjected to syariah laws.

Aston (right), in reply to the submissions raised, said the state legal adviser had not shown proof that transgenders are “curable” whereas his clients had submitted a medical report from Hospital Kuala Lumpur to show that it incurable.

“In the end, where we see people have the right to protest on various issues that they fight for, however, for the transgender community, they cannot even go out to the streets of Negri Sembilan to protest or challenge this unjust legislation because of this provision (Section 66).”

“All this is just because the state has enacted laws which prevent them from exercising their basic fundamental liberties. They are not challenging the religion of Islam as they want to be Muslims. I pray for this appeal to be allowed,” he said.

It was previously reported that Seremban High Court had initially granted the four transgenders permission to challenge Section 66 of the enactment.

However, on hearing the case, Seremban High Court judge Justice Mariah Ahmad dismissed the application, saying Muslims should abide by the Quran and hadith in this matter.

Justice Hishamudin said the bench will deliver their judgment on Nov 7.