Gender Expression, Hate Speech
The Commissioner for Protection of Equality v. AA
Closed Expands Expression
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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.
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.
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.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by invalidating a law that criminalized the cross dressing of Muslim men. This opinion takes an expansive view of speech, quoting Tinker v. Des Moines, stating that freedom of speech includes the right to express oneself through symbolic conduct. This includes the right to dress as a woman.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Article 5(1): “guarantees that no person shall be deprived of his life and personal liberty save in accordance with law.”
Article 8(1) and (2): “guarantees equality before the law and equal protection of the law.”
Article 9(2): guarantees freedom of movement
Article 10(2): guarantees freedom of expression
Other freedoms may be encompassed within the life and personal liberty limbs of Article 5.
“Life” under Article 5 includes the right to live with dignity.
Only Parliament has the power to restrict freedom of speech and expression.
Transgender community sought a legal declaration that non-recognition of their gender identity violated the constitution. The Court agreed stating “discrimination on the basis of … gender identity includes any discrimination, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under the constitution.”
“But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and commingling with fellow human beings.”
“Just as a difference in treatment of persons similarly situate leads to discrimination, so also discrimination can arise if persons who are unequals, that is to say, are differently placed, are treated similarly.”
“In Tinker, it was held that a school regulation which prohibited students from wearing black armbands to silently protest against the United State’s Government’s policy in Vietnam was violative of the First Amendment to the United States Constitution, which guaranteed free speech.”
Case significance refers to how influential the case is and how its significance changes over time.
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