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The Case of Islamic Department of Kelantan v. 9 Transgender Individuals

On Appeal Contracts Expression

Key Details

  • Mode of Expression
    Non-verbal Expression
  • Date of Decision
    June 22, 2015
  • Outcome
    Monetary Damages / Fines, Temporary Release
  • Case Number
    N/A
  • Region & Country
    Malaysia, Asia and Asia Pacific
  • Judicial Body
    Specialized Court/Tribunal
  • Type of Law
    Criminal Law, Islamic Jurisprudence
  • Themes
    Gender Expression
  • Tags
    LGBTI

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Case Analysis

Case Summary and Outcome

On June 16, 2015, Malaysia’s religious police raided a birthday party in Kelantan state and arrested nine transgender women. They later pleaded guilty to violating Section 7 of Malaysia’s Criminal Code, which prohibits any man from wearing “woman attire and poses as a woman” in public.

An Islamic court in Kelantan sentenced them to pay fine and handed one-month imprisonment for two defendants. Their lawyer  has filed an appeal and the jailed women are now released pending the appeal decision.

Columbia Global Freedom of Expression could not identify official legal and government records on the case and that the information contained in this report was derived from secondary sources. It must be noted that media outlets may not provide complete information about this case. Additional information regarding this legal matter will be updated as an official source becomes available.


Facts

On June 16, 2015, Malaysian religious authorities in the state of Kelantan, responsible for enforcing Sharia criminal codes, raided a birthday party attended by nine transgender women. [1] The authorities arrested the women who were later charged with the violation of Section 7 of Malaysia’s Criminal Code of 1985. [2] It reads “Any male person who, in any public place, wears woman attire and poses as a woman shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand ringgit [approximately 240.00 U.S. dollars] or to imprisonment for a term not exceeding four months or to both.” [2]

The women subsequently pleaded guilty before an Islamic court in Kelantan. [3]

[1] Human Rights Watch, Malaysia: Court Convicts 9 Transgender Women, (June 22, 2015),  https://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-transgender-women.

[2] Human Rights Watch, Malaysia: Court Convicts 9 Transgender Women, (June 22, 2015),  https://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-transgender-women.

[3] Human Rights Watch, Malaysia: Court Convicts 9 Transgender Women, (June 22, 2015),  https://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-transgender-women.


Decision Overview

An Islamic court in Kelantan found the transgender women guilty of violating Section 7 of the Criminal Code and sentenced them to pay fine. [1] It also sentenced two of the women to one-month imprisonment. [2]

The defendants’ lawyer later appealed the sentences. [3] Pending the appeal decision, the jailed women were released on bail. [4] To date, the decision is still pending.

This latest arrest and conviction of LGBTIs in Malaysia has been strongly condemned by human rights organizations. Human Rights Watch has urged the Malaysian authorities “to stop hauling transgender people into court simply because of who they are and what they wear,” and that it “needs to recognize that the freedom to express your gender is as fundamental as any other freedom.” [5]

[1] Human Rights Watch, Malaysia: Court Convicts 9 Transgender Women, (June 22, 2015),  https://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-transgender-women.

[2] Human Rights Watch, Malaysia: Court Convicts 9 Transgender Women, (June 22, 2015),  https://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-transgender-women.

[3] Human Rights Watch, Malaysia: Court Convicts 9 Transgender Women, (June 22, 2015),  https://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-transgender-women.

[4] Human Rights Watch, Malaysia: Court Convicts 9 Transgender Women, (June 22, 2015),  https://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-transgender-women.

[5] Human Rights Watch, Malaysia: Court Convicts 9 Transgender Women, (June 22, 2015),  https://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-transgender-women.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

The Islamic court’s decision contracts expression as the nine transgender women should be allowed to freely express their gender identity. The cross-dressing laws infringe their rights to equal protection and freedom of expression.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Malay., Criminal Code of 1985, sec. 7

    “Any male person who, in any public place, wears woman attire and 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 four months or to both.”

General Law Notes

Malaysia does not follow the international human rights standards such as the International Covenant on Civil and Political Rights (ICCPR); International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention against Torture and Ohter Cruel, Inhuman or Degrading Treatment or Punishment (CAT). However, it ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in which the UN Committee on Committee on the Elimination of Discrimination against Women stated in its General Recommendation No. 28 that the obligation of the State Parties under the Article 2 of the CEDAW included;

“The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste, and sexual orientation and gender identity.

Discrimination on the basis of sex or gender may affect women belonging to such groups to a different degree on in different ways than men. States parties must legally recognize and prohibit such intersecting forms of discrimination and their compounded negative impact on the women concerned. They also need to adopt and pursue policies and programmes designed to eliminate such occurrences.”

At the national level, the state-level Sharia law is inferior to the Federal Constitution, the Section 7 of the Kelantan Syariah Criminal Code of 1985 actually violates many articles of the Federal Constitution as followings;

Article 10 (1) (a) states “every citizen has the right to freedom of speech and expression.” In this case, freedom of expression also includes attire.

Article 8 (1) states “all persons are equal before the law and entitled to the equal protection of the law” and Article 8 (2) states “except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.” The Article 8 (1) guarantees that there is equality and equal protection of the law for the citizens, while the Article 8 (2) confirms that there must be no discrimination on the ground of gender.

Article 9 (2) of the law is about the freedom of movement which states “… every citizen has the right to move freely throughout the Federation and to reside in any part thereof.”

Article 5 (1) talks about the right to live with dignity and the right to livelihood and work as it stipulates “no person shall be deprived of his life or personal liberty save in accordance with law.”

 

 

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

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