What criminal offense had the wedding guests committed?

Their “crime” was dressing in women’s clothing. These guests were transgender women, arrested under a state Sharia law that criminalizes “a man posing as a woman.” They were taken to prison and placed in a segregated cell in the male prison block, where they had their heads shaved. The judge at the Sharia court humiliated them, telling them they looked more “handsome” with shaved heads. After serving their sentences, they were released, having become the latest casualty of state-sponsored discrimination on the basis of gender identity.

Although transgender people historically enjoyed a high degree of acceptance in Malaysia, a series of legislative initiatives, beginning in the 1980s, have criminalized them and forced them further underground. Under these discriminatory laws, transgender people—individuals whose gender identity differs from the sex assigned to them at birth—can be arrested simply for wearing clothing deemed not to pertain to their assigned sex. A constitutional challenge to the state laws in Negeri Sembilan is currently underway, with a ruling expected on November 7, 2014. The ruling, while only binding in Negeri Sembilan, has the potential to fundamentally alter the legal status of transgender people throughout Malaysia.

Arrests of transgender people usually take place under state Sharia laws, which are enforced by state Islamic Religious Departments and are only applicable to Muslims, who make up approximately 60 percent of Malaysia’s population. While the language of such laws varies across Malaysia’s 13 states and 3 federal territories, most Sharia enactments contain provisions that prohibit “a man posing as a woman,” and three states similarly criminalize “a woman posing as a man.” As far as Human Rights Watch has been able to ascertain, despite the existence of some laws targeting transgender men (“women posing as men,” in the eyes of the Malaysian authorities), all arrests to date under these laws have targeted transgender women. Officers of the Royal Malaysia Police (RMP) (all police in Malaysia belong to the federal RMP) have also at times arrested transgender women under an overly vague provision of the secular federal criminal code that prohibits “public indecency” and applies to people of all religious backgrounds. 

Both religious and civil police have perpetrated abuses against transwomen during arrests. In some cases, Religious Department officials physically and sexually assault them during arrest or while in custody, or parade them before the media, humiliating them. Human Rights Watch is unaware of any Religious Department officials having been held accountable for these violations. Transwomen also report that civil police sometimes extort money or sex from them. In cases in which transwomen are sentenced to prison, they are usually placed in male wards, where they face sexual assault at the hands of both wardens and male prisoners.

Transgender people in Malaysia face discrimination and abuse from a range of state officials and agents—including police officers, state Religious Department officials,

public sector health workers, prison guards, and public school teachers and administrators. Official discrimination against transgender people is compounded by other forms of discrimination for which the government provides little or no protection: Human Rights Watch found that transgender people are fired from their jobs, evicted from their homes, physically and sexually assaulted, and denied access to health care because of their gender identities. When public officials or private individuals commit violence against transgender people, the victims face serious obstacles—and at times further sexual abuse—from the police who are supposed to be helping them.

Government officials, politicians, and religious leaders fuel the flames of violence and discrimination against transgender people with transphobic and homophobic rhetoric. Typically, this rhetoric groups together lesbian, gay, bisexual, and transgender (LGBT) people, labeling them as criminal or un-Islamic. Although the government of Prime Minister Najib Razak presents Malaysia to the international community as a “moderate Muslim” country, it has taken a series of public positions that draw on a narrow interpretation of Islam to endorse restrictions on religious freedom, LGBT rights, and gender equality that cater to extremist views.

Transgender people, both Muslim and non-Muslim, have been affected by the Islamization of public policy in multiple ways. Not only are Muslim transgender women criminalized under Sharia enactments, but a fatwa, or Islamic decree, issued in 1982 by the National Fatwa Council, prohibits Muslims from undergoing sex reassignment surgery (SRS) and Muslim medical institutions from providing such surgeries. Although in principle, a non-Muslim medical institution could still offer SRS to non-Muslims, most transgender people have found it impossible to find doctors who will perform SRS. The National Registration Department does not allow transgender people—neither Muslim nor non-Muslim—to change the sex marker (“female” or “male”) on their identity cards to match their gender identity. Even when transgender people have undergone SRS outside Malaysia, they are still denied this right, forcing them to live in a legal limbo in which their body does not match the sex listed on their identity card.  

At times, Malaysian government institutions have recognized some of the needs of transgender people. Government recognition of transgender women as a “most at-risk population” (MARP) in the fight against HIV has led to some government outreach aimed at engaging transgender people in HIV prevention efforts and ensuring that those who are HIV-positive receive treatment. The Ministry of Health has reported that prosecutions of transgender people obstruct the fight against HIV by driving them underground, although the Ministry has not undertaken efforts to reform those laws. The federal Department of Islamic Development (Jabatan Kemajuan Islam Malaysia, JAKIM), a body established with the purpose of “mobilis[ing] the development and progress of Muslims in Malaysia,” and ensuring the widespread teaching of Islam, has taken on a role in HIV prevention and care; among its activities, it has reached out to transwomen, although its messaging may at times reinforce stigma rather than alleviate it.

Despite the challenges they face, transgender people in Malaysia are not passive victims of their circumstances. A vibrant transgender movement has developed, with trans people increasingly

speaking out and demanding that their rights be respected. The Kuala Lumpur-based organization, Justice for Sisters, seeks to raise public awareness about violence and persecution against transgender women, and supports legal challenges to the state Sharia “cross-dressing” laws. The “I AM YOU: Be A Trans Ally” multimedia campaign aims to promote positive images of transgender people and allows transgender people an avenue to share their stories. Civil society organizations ranging from the Malaysian Bar Council to the Muslim feminist group Sisters in Islam have taken public stances in support of transgender rights. 

In 2010, four transgender women filed a constitutional challenge against the “cross-dressing” laws in the state of Negeri Sembilan. The applicants had been arrested repeatedly under the law, in some cases simply for wearing women’s hair accessories. Three of them had been subjected to physical or sexual abuse by the state Religious Department officials who carried out the arrests. Through their lawyer, the women argued that the law prohibiting “a man posing as a woman” violated their rights to freedom of expression, freedom of movement, and equal protection, all of which are guaranteed by Malaysia’s constitution. A judge in the first instance rejected their application, and in 2014, their appeal was heard at the Court of Appeal in the federal administrative center, Putrajaya. A ruling is expected on November 7, 2014.

Several transgender people born in the 1950s and 1960s told Human Rights Watch that they remembered a more progressive, less discriminatory Malaysia. Today’s transgender activists aim to remind Malaysians of their more tolerant past, and to ensure that transgender Malaysians are not stripped of their fundamental rights, protected under Malaysia’s constitution and international human rights law, because of their gender identity or expression.

Human Rights Watch calls on the federal and state governments of Malaysia to repeal discriminatory laws and fatwas that deny transgender people their basic rights—and prohibit them from being who they are. State Religious Departments and the federal police should end all forms of abuse against transgender people, including arbitrary arrests and detention; sexual assault, torture and ill-treatment; and extortion of money and sex. The authorities should investigate and appropriately discipline or prosecute those responsible for such abuses. Malaysian government officials, politicians, and religious leaders should cease making inflammatory or denigrating statements about transgender people and should instead take steps to protect them from violence and discrimination.