On 7 November 2014, the Court of Appeal of Malaysia in Khamis and Ors v State Government of Negeri Sembilan and Ors held that a law prohibiting Muslim men from cross-dressing was unconstitutional and therefore void. The Equal Rights Trust, noting the importance of the case, prepared a legal brief for the Appellants’ counsel outlining the right to be free from discrimination on grounds of gender identity. The Court’s decision, which recognised that the law in question violated the rights to live with dignity and freedom from discrimination and adopted the earlier progressive decision of the Supreme Court of India on gender identity in National Legal Services Authority v Union of India and Others, is a significant step forward for transgender women in Malaysia.

The case was brought to challenge section 66 of the Syariah Criminal Enactment 1992 (Negeri Sembilan), which made it an offence for a Muslim man to wear women’s attire or pose as a woman in public. Those convicted faced a RM1000 fine, a term of imprisonment not exceeding six months, or both. Each of the Appellants had been repeatedly arrested, detained and prosecuted pursuant to section 66. They argued unsuccessfully at the High Court that the law was unconstitutional and so appealed.  

In its brief to counsel, the Equal Rights Trust provided substantive support for the arguments to be run by the Appellants that section 66 discriminated against the Appellants and other transgender Muslim women on the ground of their gender identity. The Trust opined that section 66 was unconstitutional because it violated the Appellants’ 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, including on the basis of their gender (art. 8(2)). 

On 7 November, the Court of Appeal released a brief judgment, with a full judgment due to follow. It held that section 66 was inconsistent with several Constitutional rights:  

• article 5(1) (life and personal liberty). This article encompasses the right to live with dignity: “[a]s long as section 66 is in force the appellants will continue to live in uncertainty, misery and indignity”;
• articles 8(1) and 8(2) (equality and non-discrimination). The law failed to recognise that the Appellants were not similarly situated with other “Muslim men”;
• article 9(2) (freedom of movement). The Appellants could never leave their homes without risk of arrest and prosecution; and
• article 10(1) (freedom of expression). Clothing and dress formed part of freedom of expression and the Appellants were therefore denied this right in violation of article 10(1)(a).