Criminalization and Mistreatment of Transgender People under Sharia Law

The wedding guests were arrested under article 66 of the Syariah Criminal Enactment, 1992, which reads: “Any male person who, in any public place wears a woman’s attire or poses as a woman shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.” [53]

Their arrest occurred shortly after a hearing at the Court of Appeal in Putrajaya in which the applicants challenged the constitutionality of Negeri Sembilan’s “cross-dressing” law. In 2011, four transgender women had filed a case in the Negeri Sembilan High Court calling for judicial review of the law, on the grounds that it violates fundamental rights protected by the constitution, including the right to freedom of expression. When their case was rejected by the High Court in 2012, they filed an appeal. The Court of Appeal, Malaysia’s second highest court below the Federal Court, is expected to issue a ruling on November 7, 2014.  

Transwomen in Negeri Sembilan are far from alone in being victimized under this sort of law. Arrests of transgender women under Sharia law take place throughout Malaysia. Laws vary from state to state; some penalize a “male person posing as a woman for immoral purposes,” and are primarily used against transgender sex workers (though “immoral purposes” is undefined), whereas others penalize a "male person posing as a woman” under any circumstances. In four states, Sharia laws also penalize a woman posing as a man. Maximum sentences range from six months to three years in prison, and fines from RM 1,000 (US$314) to RM 5,000 ($1,559). In some states, the Islamic Religious Departments, tasked with enforcing Sharia law, carry out systematic raids against transgender women, often with the participation of the civil police.

Human Rights Watch conducted research in Kuala Lumpur, Penang, Selangor, Negeri Sembilan, and Pahang. Of these states, only in Pahang, the state that most recently criminalized cross-dressing, in 2012, did the transgender women we interviewed report that they were unaware of any arrests of transwomen under Sharia laws. Transwomen we interviewed also recounted being arrested by Religious Department officials in Kedah, Johor, Malacca, and Sarawak. [54] Those that were taken before the Sharia courts were almost inevitably found guilty; they had no legal representation and were given little opportunity to defend themselves. [55] In most cases, they were not imprisoned but were required to pay fines—sometimes amounting to a month’s salary or more.

Aston Paiva, the lawyer representing transgender women in the Negeri Sembilan case, told Human Rights Watch that rights violations against transwomen are particularly pronounced in states that prohibit cross-dressing under all circumstances. In those states, he said:

The moment a transgender person or a transsexual person walks out of a house, or is sitting in a restaurant, having something to eat, she can be arrested. So there’s this chilling effect on the ability to move around public places. The law applies in all public places, and as you can see, [transgender people] would be directly and continuously affected by such a law. [56]

Beka, a 31-year-old transgender woman from Kedah state, is one of many transgender women who have been subjected to multiple arrests: she told Human Rights Watch that she has been arrested five times for dressing as a woman. On one occasion, she was fined RM 3,000 (US$935), simply for sitting in a parked car with her friends, wearing a traditional Malay kebaya (blouse and long skirt). [57] She lost her job as a result of the arrest, as detailed in the section on employment discrimination, below. On another occasion, in 2012, she was arrested while distributing condoms to other transgender women in her role as an outreach worker for a registered public health organization.

Beka recalled:

I was doing outreach to deliver condoms to transgender people, as a volunteer with [a public health organization] in Kedah. I had walked halfway to where the TGs [transgenders] were that I needed to do outreach to, at a road by the railway track, when I saw the religious authorities. I saw the white van with the high beam, and knew it was the religious authorities.

Beka tried to run, but was caught, while the transgender women she was trying to reach all managed to escape. The religious official who arrested her rifled through her bag and found condoms, which he confiscated, threatening to charge her with prostitution. But when she was taken to the Religious Department, she was given a letter that accused her of “dressing and acting like a woman.” Beka said, “I did not really feel afraid [of getting charged] that time because I was just wearing jeans and a T-shirt—but they still accused me, even though I was not dressed as a woman that day.” [58]

The most recent time Beka was arrested, she was attending a private, invitation-only beauty pageant held at an upscale hotel. Although the law in Kedah only applies to cross-dressing in public, religious officials raided the private function, overstepping their legal mandate.

Aisah, a 33-year-old transwoman, has been arrested five times in Johor since 2002. The first time she was arrested, religious officers picked her up in the street and handcuffed her, without explaining who they were until after they had shoved her into a van. Aisah recalled that as one officer at the Religious Department took her statement, “Another officer in the room was hurling insults at me—“You were born a man, you’re not scared of God. What kind of human being are you?’” [59]

Like Beka, Aisah has also been arrested at a private function: a transgender beauty pageant at a five-star hotel in Johor. She said, “I don’t know why the religious officers came inside the hotel, because it was a private party.” [60]

Non-Muslim transgender women are also caught up in Religious Department roundups. Aisah said that in 2009, religious officials raided a disco in Johor and arrested 76 transwomen, loaded them all into vans and took them all to the Religious Department lockup. Only once they arrived did they sort through the women’s IDs, allowing Indian and Chinese women to go. Aisah remembered, “A Chinese TG was crying the whole time: ‘This isn’t fair, I’m not Muslim. What’s their right to arrest me?’” [61]

Civil police, although they are only mandated to enforce secular criminal law, often play a role in the arrests of Muslim transgender women. Leela, a 38-year-old transgender HIV outreach worker in Kuala Lumpur, believes their aim is to extort money from transwomen, who fear being transferred to the religious authorities. Police arrested Leela arbitrarily in 2013, while she was on her way home from work:

Last year I was arrested in Chow Kit. I had just finished work, and was going to buy nasi lemak [a rice dish]. I was not doing sex work, but was in a sex work place. There are lots of police there who always catch transgenders who do sex work—they want money. Three of them surrounded me. I said, ‘What did I do?’ They wanted to charge me under Sharia law for cross-dressing, even though they were civil police.

They took me to Chow Kit police station and put me in lockup. A police officer tried to scare me by saying they would take me to the Sharia law court. I said, ‘Send me—I didn’t do anything wrong.’ I think he was trying to scare me in order to get money, but I knew my rights. [62] Most transgenders, if you don’t give money, they send you to the Sharia law court. After half an hour he released me. [63]

According to longtime trans activist Khartini Slamah, police treatment of transgender people has improved following efforts by the transgender community to engage in dialogue with the authorities beginning in the 1990s. However, Slamah noted: “We have not experienced such improvements with the religious anti-vice squad.” [64]

Arbitrary Arrests

State Sharia enactments provide no guidelines as to what constitutes “posing as a woman.” This ambiguity leads to arbitrary enforcement against those who may look effeminate, regardless of whether or not they are dressed in distinctively “female” clothing (a category which in itself has no clear definition).

Aisah, whose arrest during a disco raid in Johor is recounted above, was arrested solely because she has breasts, a result of the hormone replacement therapy (HRT) she has undergone since age 14:

One thing I don’t understand—I was wearing a T-shirt, shorts and flip-flops, and they charged me as [impersonating] a woman. … I asked them why I was accused of wearing women’s clothing. They said, ‘Because you have breasts.’ [65]

After another religious official questioned why she should be detained if she was only wearing a T-shirt and shorts, Aisah was released on the condition that she attend a three-hour counseling session by religious teachers (ustaz). There, she recalled, “They said things like, ‘You need to be a man, you were born a man.’” [66]

Nurul, who has also undergone HRT, was arrested in 2000 in Kuala Lumpur. She was wearing a gender-neutral T-shirt and jeans, but when religious authorities spotted that she had a bra on underneath, they arrested her. According to Nurul:

I said, ‘Why are you arresting me when I’m wearing jeans and a T-shirt?’ They said, ‘Because you’re wearing a bra.’ I said, ‘I have breasts! This is between me and God, this has nothing to do with you.’ They let me go because I was brave enough to stand up for myself. [67]

Shila, a 40-year-old transwoman in Negeri Sembilan, said the religious authorities have arrested her 20 to 30 times over the past 20 years, regardless of how she is dressed:

Even before I started dressing like a woman, I was already being arrested by the religious authorities. When I was younger, I was already targeted just for wearing baby T’s. I don’t understand their thinking and their laws. … They would say, ‘Why are you wearing a tight T-shirt? This is a female T-shirt.’ I didn’t understand, because that was the fashion back then—men wore very tight T-shirts and flare pants. [68]

Violence and Sexual Assault by Religious Department Officials during Arrest and Detention

Several transwomen we interviewed had experienced physical or sexual assault, or both, at the hands of the Religious Department officials who arrested them.

Sexual Assault and Stripping [69]

In 2011, Religious Department officials arrested Victoria, a transgender woman in Seremban, Negeri Sembilan, at a roadside food stall at about 11 p.m. They took her to the Negeri Sembilan Religious Department, where they stripped and sexually assaulted her:

They were rough. One of them squeezed my breasts. I was completely humiliated. … They stripped me completely naked. One of them took a police baton and poked at my genitals. Everyone was looking—the men [Religious Department officials] as well as the women. They took photos of my naked body.

They treated me like an animal. I said, ‘Why do you treat me as an animal? I am also a human being. I’m a child of God.’ [70]

Adik, another transwoman in Seremban, was detained and sexually assaulted by Religious Department officials in early 2012, apparently because they were curious about her body:

I was picked up but I was not taken to the Religious Department. They touched me, molested me, and then allowed me to go. It wasn’t an official raid. They were just going around in a car. ... They put me in the back seat of the car, between them. While [two of them] were touching my breasts and holding them, they asked, ‘How did you get this done?’ They drove around for about half an hour before they let me go. [71]

The laws against cross-dressing, in themselves, invite sexual abuse, as they may require religious officials to verify the sex of the individuals they arrest. A recent report authored by the Malaysian organization Knowledge and Rights with Young people through Safer Spaces (KRYSS), and published by the International Gay and Lesbian Human Rights Commission (IGLHRC), recounts the story of Ima, a transwoman, who stated: “After being arrested, we were all brought to the Religious Department of Perak. We were asked to take off our blouses so that they could see our breasts but that was not enough for them. They wanted to touch them.” [72]

Women’s Aid Organisation reported a similar case in Malacca in 2010, in which Religious Department officials arrested a transwoman and forced her to strip naked in front of them. The head of the Malacca Religious Department reportedly told a newspaper at that time:

We were carrying out our duties under the state religious laws. … Abdul Qawi was wearing a woman’s bra and panties and we did not strip with the intention to embarrass him. … He may feel his rights as a person had been violated, but as Muslims we have the responsibility to ensure he does not go astray. [73]

Physical Assault

Serafina, a transgender woman in Seremban, told Human Rights Watch that in May 2010, Religious Department officials, carrying out a nighttime raid, caught her in the street wearing pajamas, which they apparently judged to be too feminine:

They chased me into a hotel and grabbed me. They hit me, punched me in the face, choked me, and told me I was guilty. I felt dizzy and collapsed. One of them tried to stomp on my chest, but I was saved by someone who pulled me away. [74]

Religious officials arrested Beka in 2009 when she was on the main road in Kedah town, dressed in a knee-length sundress. The official who arrested her was rough with her, Beka recalled: he grabbed her by the arm, and when her shoes came off as she was led toward the Islamic Department van, he would not allow her to get them. When she tried to get her shoes, Beka said, the religious official pushed her down and kicked her in the leg, causing her to bleed. [75]

Shila was injured during the course of an arrest in 2010 in Negeri Semblilan, when religious officials chased her and threw a flashlight (torch) at her, which struck her on the leg and caused her to fall. Religious officials denied her treatment for her injuries: “I was bleeding when we arrived at the office, and they just left me be, with blood gushing, and left to do another raid.” Shila added, “I got off easy—there were two other transgenders who were stepped on and beaten up. [76]

Nisha Ayub, a transgender activist with the organization, Justice for Sisters, described a 2007 case in which Malacca state Religious Department officials arrested a transwoman: “They actually kicked her, punched her, to the extent that she had to be admitted to the hospital, because she had [preexisting] hernia problems. Because of the beating, she had to go for surgery.” [77]

Nisha filed a complaint with the local police, but the victim chose not to pursue the case: “She was afraid it would jeopardize her because she is a Muslim and she is a sex worker, so she was afraid that she would be targeted [again] if she were to carry on the case against the Religious Department.” [78]

Extortion by Religious Authorities

Religious Department officials have at times extorted money from transgender people, whom they know are vulnerable and cannot easily seek recourse. Aisah told Human Rights Watch that when religious officials arrested her in Johor in 2010, “One of them recognized me from previous cases and asked me to give him my money and my hand [mobile] phones. Then he released me, and warned me, “I don’t want to ever see your face here again.’” [79]

Extortion can also be sexual. An official with Family Health Development Association (FHDA), a sexual and reproductive health organization in Penang that works with the transgender community, told Human Rights Watch, “For transgender people, the religious law on cross-dressing is a big risk. Some give a bribe or sexual services when they are arrested—so the risk of HIV increases.” [80]

Violation of Privacy Rights

Transwomen told Human Rights Watch that religious officials had forcibly entered their homes or places of work to carry out arrests. [81] In 2012, Religious Department officials forcibly entered the home of Izzati, a transgender woman in Seremban, while conducting a warrantless raid. Izzati, who as a Christian was not subject to Sharia law, was in front of her apartment building with three transgender Muslim friends. When a group of 10 Religious Department officials arrived in the neighborhood in several vehicles, Izzati’s three friends rushed up to the apartment and locked the door. Izzati remained downstairs, where the officials confronted her. She told Human Rights Watch:  

They checked my IC [identity card] and saw I wasn’t Muslim. Then they went up to my room because they [had seen] my friends going up to my room. They forcibly took the keys out of my handbag. They pulled the bag from me, looked into it, pulled the keys out, and opened the grill [on the front door]. Then they went upstairs, opened the door, took photos, and arrested and charged the three Muslim transwomen who were upstairs. They were charged with cross-dressing. [82]

Public Humiliation

Religious authorities who have arrested transgender women have on several occasions called television news crews, with the apparent aim of publicly humiliating the victim. One television journalist told Human Rights Watch that both the religious officials and the police “always call us when they are going to do raids and arrest mak nyah.” [83]

Shila, Sunny and Adik, three transwomen in Seremban, were victims of one such raid in July 2013. Shila recounted:

They brought in TV 3, a public TV station, which has a show called ‘999’ where they show raids. … They forced people to do interviews with the media. We didn’t have a choice. We got in an argument with the ustad [religious official] but they forced us to do an interview. They asked, ‘What’s the price? Who are your clients?’ What’s the benefit of us answering them? But we had to answer them. [84]

Consequences of Arrests

Being arrested under state cross-dressing laws has consequences for transgender women that go beyond the penalties prescribed by the courts. Beka told Human Rights Watch that she was fired from her job as a waitress in a restaurant after she was arrested the first time:

Because of that I lost my job. [My arrest] was published in the newspaper, with a blur on my face, but my statement was there. … My colleagues at work spread around the story. My manager got the newspaper, and he said, ‘I don’t agree with that.’ My manager knew I was a mak nyah, but he was upset that I was in the paper, so he fired me. [85]

The arrests of transgender women also have broader social consequences. Criminalization of transgender women poses a threat to HIV prevention work among transgender communities. Beka’s experience of arrest at the hands of Religious Department officials while distributing condoms to transgender sex workers, as part of the outreach work of a recognized NGO, may serve as a deterrent to other would-be HIV outreach workers. [86] Raids on beauty pageants held in private locations, which serve as an opportunity to bring together the trans community and provide education on HIV prevention, as Manis experienced in Kedah, have a similar, deterrent effect. [87]

The Negeri Sembilan Case

The constitutionality of Sharia laws that criminalize cross-dressing is currently being challenged in a case before the Court of Appeal in Putrajaya. The applicants, four transgender women from Seremban, first challenged the constitutionality of the state laws with the Negeri Sembilan High Court in February 2011. The High Court judge rejected their application in October 2012 on the grounds that the applicants, as Muslims, were bound by state Sharia law and that constitutional provisions protecting fundamental liberties were therefore irrelevant. According to lawyer Aston Paiva, who was representing the transwomen, the decision was “not based on anything in Malaysia law.” [88]

Serafina, one of the applicants, said that her personal experience led her to join the case:

In 2009 … the nightmare started of getting caught by the religious officials. The first time, I was coming from home, wearing pajamas, going to see my friends to give them some cosmetics. They [the religious authorities] were doing a raid. ... I tried to run. They came with a van. They caught me and pulled my hair. I was shocked. They wouldn’t show their identity cards. I said I didn’t do anything. I didn’t have heels or women’s clothes on. The evidence was just my pajamas, which had kitten prints.

I was arrested three times in one year. The last time, I was wearing unisex tennis shorts and a loose T-shirt in yellow and purple. They arrested me because of my slippers and hair bands.

It’s so wrong. I didn’t do anything to them, I’m just trying to be what I want to be in life. If we win the case, maybe we can change the rules. [89]

Should the Court of Appeal ruling, expected on November 7, 2014, favor the applicants, it will only be binding in Negeri Sembilan. However, given the similarity of the cross-dressing laws across Malaysia’s states and federal territories, transwomen and their allies in other states could file similar challenges, and those state high courts would be required to treat the Court of Appeal ruling as precedent. [90] Thus, the Negeri Sembilan case has the potential to contribute significantly to the fulfillment of constitutional rights for transgender people throughout Malaysia.