A Malaysian appeals court is expected to rule on Thursday whether a Sharia code that criminalizes transgender people violates their fundamental rights.
There are state laws throughout most of Malaysia that enforce Islamic codes, including a provision that criminalizes "any male person who, in any public place wears a woman's attire or poses as a woman." Transwomen are routinely detained by the police in several states in Malaysia, according to a recent investigation by Human Rights Watch, and they are sometimes subjected to physical and sexual abuse at the hands of police. Some transwomen reported being arrested more than 20 times.
Far more is at stake in this case than just the safety of Malaysia's trans community, say the activists who helped bring it to court. It is fundamentally about judicial independence in a country whose Islamist ruling party has stoked anti-LGBT sentiment as part of a political strategy to hold on to power. (The opposition leader, Anwar Ibrahim, was recently thrown back in jail for a sodomy charge he says was a politically motivated slander.) The ruling will also test whether state religious codes or human rights protected in Malaysia's secular constitution are supreme.
"What's special about this case is the fact that we're challenging the constitutionality of state Sharia law, which has never been done before," said Thilaga Sulathireh of the Malaysian trans rights organization Justice for Sisters, which is working with the three women who filed suit.
This case will be heard in the appeals court of Putrajaya in the state of Negeri Sembilan, south of the country's capital, Kuala Lumpur. It has been making its way through the courts for three years. Four litigants first filed a constitutional challenge to the Sharia code in February 2011, and the Negeri Sembilan High Court ruled against them in October of 2012. A lawyer working on the case, Aston Paiva, explained that the judge essentially ruled that if Sharia codes are "consistent with the teachings of Islam" then protections for "fundamental liberties can be excluded."
The ruling came as a surprise to those involved, said Sulathireh of Justice for Sisters, since the judge had seemed very sympathetic during the hearing and expressed doubt as to whether it was right to consider the litigants male in the first place. The fact that the judge tacked so hard to the right — including what Sulathireh called an "unnecessary" reference to the Quran — called into question the courts' ability to consider cases fairly.
"If the political situation in the country was not so hostile towards LGBT people, maybe the decision could have been different," she said.
One of the women who first brought the suit withdrew from the case when it was appealed, and none of the litigants would agree to be interviewed. But Sulathireh said at the time they decided to go to court, reports were coming almost every other day that religious police had arrested transwomen, and often on flimsy pretenses. One of the litigants was actually dressed in gender-neutral clothing when she was arrested, and was not even wearing a bra — many transwomen avoided wearing bras because they could be used as evidence by police. But officers approached her on the street because she had long hair and other feminine physical features, lifted her shirt to check for breasts, and put her under arrest.
"The facts of this case was perfect [to take to court] in sense it showed the brutish attitude by the State authorities against a defenseless and voiceless minority," said the lawyer, Aston Paiva. Though such a Sharia provision had never been challenged in court before, he said, there was no reason why it couldn't be.
There is a complicated relationship between religious and secular law in Malaysia, a country which is about 60 percent Muslim. The country's constitution declares,"Islam is the religion of the Federation," but also says, "other religions may be practised in peace and harmony in any part of the Federation." The article establishing Islam as the official religion also states, "nothing in this Article derogates from any other provision of this Constitution," presumably including protections for fundamental rights. Sharia laws also technically only apply to Muslims, but all ethnic Malays — who account for half the country's population — are automatically defined as Muslim.
Sharia laws were put in place by the secular legislatures of the Malaysian states, Paiva argued. "What are termed 'Syariah laws' are in fact secular laws that codify aspects of substantive Islamic law. Thus, there is no reason why these "Syariah laws" cannot be tested against the Constitution or subjected to constitutional review by the Courts like any other law."
If they lose in the state appellate court on Thursday, Paiva said, he is prepared to take this argument to the federal courts.
The ruling potentially could have a broader reverberation in the region, said Sulathireh. Before the sultan of the tiny neighboring nation of Brunei enacted a new Sharia code on May 1, Malaysia was the only country in Southeast Asia with Sharia law. Activists in the region have been fighting to get the regional trade bloc that includes both countries, the Association of Southeast Asian Nations, to recognize LGBT rights as fundamental human rights. A court ruling striking down the Sharia code could make their argument stronger.