Case Summary and Outcome

Freedom of speech can include expressive conduct such as cross dressing. A law that criminalized the act of cross dressing by Muslim men was held unconstitutional by an appeals court as violating several provisions of the Malaysian Constitution. This included violations of the right to life, livelihood, equal protection, and freedom of speech.

Facts

The appellants in this case (three Muslim men with Gender Identity Disorder) sought a declaration that Section 66 of the Syariah Criminal Enactment of 1992 was unconstitutional. Section 66 “makes it an offense for any Muslim male person to do any of the following in a public place: to wear a woman’s attire, or to pose as a woman.” The Court first looked at whether Gender Identity Disorder (GID) was a legitimate disorder and concluded that indeed it was. “The evidence furnished by the appellants, therefore, establish that GID is an attribute of the appellants’ nature that they did not choose and cannot change; and that much harm would be caused to them should they be punished for merely exhibiting a manifestation of GID, i.e., cross-dressing.” The High Court of Seremban dismissed the application and appellants appealed.

Decision Overview

First, the Court examined Article 5(1) of the Constitution. Art 5(1) of the Federal Constitution “guarantees that no person shall be deprived of his life and personal liberty save in accordance with law.” The Court found that Section 66 interfered with appellants’ right to live with dignity guaranteed to them by Article 5 of the Constitution. Therefore, Section 66 of the law was unconstitutional.

Second, the Court noted that the right to life included livelihood and quality of life. The effect of this provision prevented appellants from moving in public places and to their places of work because they were subject to prosecution under this act if they cross dressed in public. Therefore, this provision also infringed upon appellants’ right to life and was thus unconstitutional.

The Court then turned to Article 8(1) and 8(2) of the Constitution which “guarantees equality before the law and equal protection of the law.” The Court recognized that Muslims suffering from GID were unequal to non-GID Muslim males, and therefore, under Article 8, Section 66 was unconstitutional. The Court also discussed some Indian cases that had held unequal treatment of persons similarly situated was unconstitutional. Furthermore, Article 8 additionally prohibits discrimination on the basis of gender. The Court ruled that Section 66 was also inconsistent with a prohibition on gender because it only prohibits males from cross dressing, not females.

The Court also discussed whether Section 66 was inconsistent with Article 9(2) of the Constitution which guarantees freedom of movement. The Court held that Section 66 does not just restrict appellants’ freedom of movement, but denies the appellants the right to move freely in public places. Therefore, Section 66 also violated Article 9 of the Constitution.

Finally, the Court analyzed whether Section 66 violated Article 10(2) of the Constitution which guarantees freedom of expression. The Court noted that the manner in which a person dresses can be a form of symbolic speech. Only the Parliament in Malaysia has the power to restrict freedom of speech and expression, and therefore this law was not within the power of the State Legislative Assemblies. Moreover, any restriction of freedom of expression must be reasonable and the Court held that this provision was clearly unreasonable. Therefore, Section 66 was unconstitutional because it violated several provisions of the Constitution.