PUTRAJAYA, Nov 7 (Bernama) — The Court of Appeal, in a landmark decision, today declared as invalid a provision in the Negeri Sembilan Syariah Law criminalising cross-dressing.
A three-member panel chaired by Justice Datuk Mohd Hishamudin Mohd Yunus, ruled that section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992 was unconstitutional because it discriminated against Muslim men suffering from a medical condition called gender identity disorder (GID).
He said the desire to dress as a female and to be recognised as a female was part of the medical condition and there were no scientifically proven pharmacological treatment or psychological therapy for such a condition.
Justice Hishamudin said GID sufferers would continue to live in uncertainty, in misery and indignity if section 66 was still in force, adding that the provision had built insecurity and vulnerability into the lives of Muslim males suffering from GID.
“The existing law punishes the gender expression of transsexuals, degrades and devalues persons with GID in our society. Section 66 directly affects their right to live with dignity as guaranteed under the Federal Constitution by depriving them of their value and worth as members of our society,” he said.
Justice Hishamudin said section 66 of the Negeri Sembilan enactment, which penalised a Muslim man who dressed or posed as a woman in public places, did not provide an exception for GID sufferers but had simply ignored them (GID sufferers) and had unfairly subjected them to the enforcement of the law.
Male Muslims suffering from GID were in a different situation as compared to normal male Muslims, he said and added that being unequal, they should not be treated similarly as the normal male Muslims.
The panel, also comprising Justice Datuk Aziah Ali and Datuk Lim Yee Lan, unanimously allowed the appeal brought by three Muslim bridal make-up artists, Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, and Wan Fairol Wan Ismail, 30, to declare section 66 as unconstitutional and an invalid law.
The court overturned a High Court dismissal of the trio’s judicial review application which rejected their request to declare section 66 unconstitutional.
They claimed that section 66 did not apply to them as GID sufferers and they had submitted a medical report from the Kuala Lumpur Hospital certifying that they were suffering from the medical condition to which they had the tendency to cross-dress as they felt the essence of their identity to be that of a woman.
Justice Hishamudin said section 66 denied sufferers of GID their right to freedom of movement as they would never be able to leave their homes and move freely in the state of Negeri Sembilan without being exposed to arrest and punishment under that section.
He said the section also affected GID sufferers’ right to freedom of expression because they were prohibited from wearing the attire and articles of clothing of their choice.
Justice Hishamudin said the High Court finding that a transsexual who wore women’s attire would get caught up in a homosexual relationship, which was a cause of HIV, was unsupported, contrary to evidence and was tainted by unscientific personal feelings or personal prejudice.
He said the High Court judge’s reasoning was grossly unfair to the appellants and other male Muslim sufferers of GID, adding that the present case had nothing to do with homosexuality and that it was a case about male Muslim persons with GID.
He also said that the court did not agree with the submission of the Negeri Sembilan state legal advisor Iskandar Ali Dewa who said the appellants were of unsound mind.
“It is absurd and insulting to suggest that the appellants and other transgenders are persons of unsound mind,” he said.
Justice Hishamudin said it was well put by the trio’s counsel, Aston Paiva, that the Federal Constitution existed precisely so that the minority could not be subjected to the tyranny of the majority.