Last Sunday, 8 June 2014, 17 transwomen including a minor were arrested at a wedding in FELDA Sungai Lui Timur by the Negeri Sembilan state religious department, or Jabatan Hal Ehwal Agama Islam Negeri Sembilan (JHEAINS). They were arrested under Section 66 of the Negeri Sembilan Syariah Criminal Offences Act. Section 66 reads that any male person who, in any public place, wears a woman’s attire and poses as a woman shall be guilty of an offense and shall on conviction be liable to a fine not exceeding RM1000, imprisonment not exceeding six months, or both.
As changing gender marker on legal documents is not permitted in Malaysia, transwomen (or mak nyahs), are not recognised as female.
All 17 of them who were detained overnight at JHEAINS, were brought to court on Monday morning. The minor was released on probation, but is required to present herself at JHEAINS monthly for 12 months. The other 16 transwomen were charged under Section 66. They were not informed of their rights to legal representation and therefore pled guilty. None of them have prior arrests or convictions under this law.
The 16 transwomen were found guilty under Section 66 and were fined RM950 each along with a 7 day prison sentence in Sungai Udang. Should they fail to pay the amount, their sentence will be extended to six months.
There is little doubt that the punishment meted is too excessive for a group of people who have never been arrested or convicted under this law. Additionally, imprisonment will have severe consequences on these mak nyahs’ livelihoods and integrity. As wedding planners (or mak andam), they have prior bookings to carry out, some even with advance payment.
On Wednesday, a stay of sentence was filed at the Syariah Lower Court in order to review the decision and reduce the punishment against these transwomen. The lack of compassion from authorities and the rigidity of the legal system severely delayed this task. That morning, the transwomen were once again presented to the Syariah Court, handcuffed in pairs, heads shaved, and nails cut short. The handcuffs were not removed even for toilet breaks. Instead, they were switched to longer linked handcuffs and were told to go in pairs. A few mak nyahs complained the handcuffs were too tight.
At 2pm, the application was heard.
The Syariah courtroom galleries are segregated by gender. All the mak nyahs were expected to sit in the male section. When there were no vacant seats, transwomen who arrived late sat in the women’s section. Before the hearing commenced however, the judge openly questioned the gender of these transwomen and demanded they move to the male section despite lack of seating. He asserted that if they did not abide to his demands, he had the authority to detain them under Section 66. He said, “Dalam dewan, says pun berkuasa juga untuk tahan (kamu) di bawah Seksyen 66.”
The judge continued to intimidate these transwomen and the lawyers. As the lawyer finished her introduction, the judge asked her to give him ten reasons why he should grant the stay of sentence. He counted every reason given and claimed that each one was not good enough. Before their handcuffs could be removed, the judge requested each mak nyah to stand at the witness stand while their affidavits were read. As each person stood in the witness stand, the judge commented on their shaven heads, even saying that the transwomen now looked “segak” or “handsome.” The judge added “Wouldn’t it be better if [you] are in prison?”
The state persecutor raised no objection to these comments, and proposed a bail of RM1,000 per detainee and for them to be bailed by family. The judge agreed to this proposal. He stated only the parents could bail the detainees and demanded one transwoman to bring all parents to court within 30 minutes.
The judge asked the first two transwomen at the witness stand if their parents were still alive. When one of them replied that her parents were in Kuala Lumpur and her father is ill, the judge insisted both parents appear together in court to bail her out.
The other transwoman replied her parents were in a different district. The judge replied that he will only allow the bail if she can produce both money and parents in court within the next 30 minutes.
Family members of one transwoman were present in court and wanted to be bailed. However, the judge warned that she should be released on bail; she may have to appear in court for the next year, since review of the decision will take time. He told her she might as well not waste her time and money and carry out the remaining 2 days of her sentence. He warned that her next court appearance “when the review fails” will result in a rearrest under Section 66 if she was not bald.
The fourth transwoman chose to withdraw the stay and continue her sentence. The lawyers called for a break to discuss. In light of the judge’s behaviour, the remaining transwomen then decided to unanimously withdraw the stay of sentence and remain in prison.
After all, handcuffed in pairs, wearing identical plastic flip flops, shaved heads, and prisoners’ garbs, their identities had already been damaged. Some were self-conscious of visible facial hair. Collectively, their appearances were a far cry from the wedding party they worked for, were invited to, and subsequently arrested at. To boost morale, they discussed buying wigs once they were released from prison.
Thanks to the generosity of people, these transwomen received sufficient funding for bail. However, the judge’s conditions for the stay of sentence were too restrictive, and tasking them to present family members within 30 minutes was a deal-breaker. For some, it was logistically impossible. Others were estranged from their families or did not want to be seen in their present condition.
As they were leaving the courtroom, the 16 transwomen expressed concern that their decision to continue their sentence would affect the advocacy work supporting them. They expressed they didn’t want to disappoint a supportive public.
The constitutionality of Section 66 is being reviewed at the Court of Appeal. The next hearing is on 17 July 2014.