Combating discrimination and promoting equality as a fundamental human right and a basic principle of social justice
London, 26 October 2012
The Equal Rights Trust (ERT) is disappointed to learn that the Malaysian High Court has rejected a request that a Syariah (Shari’a) Law in one of the Malaysian states which bans Muslim men from cross-dressing be declared unconstitutional. The High Court rejected arguments submitted by four transsexuals that the law breaches a number of their fundamental rights including the rights to non-discrimination, freedom of expression and human dignity.
The case was brought before the High Court by four male-to-female transsexuals (known in Malaysia as “Mak Nyah”) who sought to challenge section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992, which states that “wearing women’s attire” or “posing as a woman” is a criminal offense if done by a man. Prior to bringing their challenge, all four Mak Nyah had at various times been arrested, detained and charged for offences under section 66. Both in their challenge and in testimonies they provided to ERT in 2011, the applicants accused the religious authorities of targeting them and described, amongst other things, being groped and, in some cases, beaten during the course of their arrest and/or detention.
The applicants challenged section 66 on the basis that it violated a number of their fundamental rights as enshrined in the Federal Constitution of Malaysia. They argued that section 66 violated:
ERT provided a legal brief to the applicants’ lawyers in the case, arguing that section 66 was unconstitutional on the basis that it discriminated against the applicants, and others in a similar situation, on the ground of their gender identity. ERT’s brief argued that section 66 discriminated against the applicants’ rights under Articles 8(1) and 8(2) of the Federal Constitution of Malaysia to “equal protection of the law” (Art. 8(1)) and not to be subject to discrimination in any law (Art. 8(2)). In particular, ERT relied on the Declaration of Principles on Equality and argued that section 66 of the Criminal Enactment amounted to direct discrimination which is unlawful under Article 8 of the Constitution, stating that:
ERT is deeply concerned that transsexuals continue to suffer discrimination in Malaysia and that the High Court has not taken this opportunity to declare one of the discriminatory laws to which they are subject to be unconstitutional. ERT is concerned not only at the Court’s decision not to find the law to amount to unconstitutional discrimination but also its decision not to consider the law to be a breach of a number of the applicants’ other fundamental rights including their rights to freedom of expression and privacy.
To read ERT’s legal brief in the case click here.
To read the testimonies of the four applicants, as published in Volume 7 of the Equal Rights Review click here.