by By Sushila Rao
The first ever attempt to challenge the constitutionality of an Islamic Syariah(Shariah) ban on cross-dressing has been dismissed by the secular High Court in the Negeri Sembilan province of Malaysia.
Article 3 of the Constitution of Malaysia establishes Islam as the “religion of the Federation.” Under the “dual” legal system ordained by Article 121(1A) of the Constitution of Malaysia, “secular” laws apply to all citizens and Islamic or Shariah laws apply only to those professing the Islamic faith (about 2/3rds of a total of 29 million Malaysians are Muslims). Penalties for cross-dressing are determined by individual states. In Negeri Sembilan, where the case was heard, convicted offenders may be imprisoned for up to 6 months, fined as much as $325 or both.
Four Muslim transsexuals had challenged the Islamic law that bars them from dressing as women, on the grounds of non-discrimination and freedom of expression. They allege that the court’s unfavorable ruling sets a dangerous precedent, in as much as it stipulates that state-enacted Islamic law overrides fundamental liberties guaranteed under the Constitution.
The ruling can also be perhaps misconstrued as a judicial endorsement of the ordeals faced by Malaysia’s transsexual community on a daily basis, including police and societal harassment. This further compounds the problems of stigmatization caused by the criminalization on sodomy in Malaysia, with a maximum penalty of 20 years of imprisonment.
As regards non-Muslims, there is currently no legislation permitting or even governing the legal change of gender by transsexuals. The legal vacuum has led to a morass of conflicting judicial decisions. In 2003, a court decision permitted a transsexual woman to change the gender indicated in her National Registration Identity Card, which must be carried by Malayasians at all times. However, in another case in 2005, in another case, the court refused to amend the gender of a transsexual in the identity card, and said that the litigant’s remedy lay in appealing to Parliament.