March 25, 2015
By Susan Tam
After speaking to a trans man and trans woman recently about the painful experiences they face, we took a look at how the transgender group copes in Malaysia, by understanding the legal ramifications and social norms linked to life as a transgender.
Global human rights organisation Human Rights Watch notes that transgender is a term for anyone whose sex assigned to them at birth do not conform to their lived or perceived gender, which is a gender they are more comfortable in expressing.
1. Unclear laws for gender change
Malaysian laws do not directly allow for transgenders to have their gender markers legally changed on their identification cards or passports. Judges in Malaysia will use their discretion to rule cases that involve transgenders applying for alteration of the sex marker on their MyKads. In 2005, two cases of the same nature received different judgements. Wong Chiou Yong’s application was denied, but in J.G versus the National Registration Department, the request was allowed. There was no mention of the option to change a gender field under the Birth and Deaths Registration Act 1957, and while corrections were allowed under the National Registration Act 1959, no details were given as to what detail people can alter on their MyKad. On whether transgenders can change their name or gender markers, it was up to the courts to interpret this law.
2. Muslim transgenders face Syariah law penalties
Under most enactments under Syariah laws, men are not allowed to dress as women, this applies to some states of Malaysia. In 1982, the National Fatwa Council prohibited Muslims from undergoing sex reassignment surgery (SRS) and Muslim medical institutions from providing such operations.
Transgender men face issues too as seven states had fatwas or decrees issued against ‘pengkid’,a term to describe tomboys or masculine women. These decrees state that women who have masculine appearance or male sexual instincts are not allowed under Islam.
Added to this legal challenge, under Section 28 of the Syariah Criminal Offences Act 1997, Muslim transgenders can be charged for ‘immoral behaviour’. If found guilty, they are fined no more than RM1,000 or be jailed for no longer than a year. Or face both sentences.
But, a recent landmark court decision may open the way for change in the legal status of Muslim transgenders. Last November’s ruling in Negeri Sembilan allowed men to dress as women, as the Court of Appeal ruled that it was unconstitutional to penalise Muslim men who were suffering from a medical condition called gender identity disorder.
3. Non-muslim transgenders face complications too
We learnt from a Human Rights Watch report on transgenders that although non-Muslims are free from the Syariah law jurisdiction, they face other obstacles such as having difficulties finding a medical institution to help them with sex reassignment surgeries. They too can be charged under civil law, under Section 21 of the Minor Offences Act 1955. They can be penalised for ‘indecent behaviour’ and be fined from RM25 to RM50. Since there is no clear definition of what constitutes indecent behaviour, it is up to the police to decide what indecent means.
4. Getting married
Same sex unions are not allow under civil law or Syariah law in Malaysia, a country where sodomy is illegal. In 2005, the issues of transgender marriage in Malaysia was brought up when Chinese transgender Jessie Chung married Joshua Beh in Kuching, Sarawak. Chung was born male, and went through three surgeries to become a woman. The authorities declared their union invalid, and some Christian groups denounced it. But the couple went ahead with their ceremony, getting their union blessed by three pastors in front of an audience of 800 people.
5. Festivals banned
Along with the laundry list of legal obstacles facing this community, campaigns and public events featuring the lesbian, gay and transgender communities were recently prohibited. Seksualiti Merdeka or the Sexuality Independence festival was banned by the police in 2011, because it constituted a ‘threat to public order.’ The festival went ahead in 2008 and 2009, but was stopped in 2011. Workshops, talks, musical and theatre performances on the diversity of this community were planned to educate the public and celebrate the rights of these groups.
6. Facing problems getting work
We spoke to local NGO Justice for Sisters who pointed out that transgenders are often reduced to details about their sex while their qualifications, capabilities and capacity become irrelevant. This makes it difficult for them to find work. Transgenders also face sexual harassment and sexism at the workplace, including restriction to use toilet that reflects their gender. The NGO told us that the laws that criminalise transgenders worsens their situation, as employers do not want to risk hiring someone that could possibly be arrested and imprisoned, as that could hurt the brand, image or productivity of the company.
7. Raising a family
Justice for Sisters feel that adoption laws works on the assumption that women are better at child rearing, reinforcing binary gender roles and mythology of maternal instincts and that of the construct of family. The family structure, despite it changing today, still remains binary and heteronormative. This means that it involves parents of two different genders and children of clearly defined and socially accepted gender or sexual orientation with no disabilities. These social constructs make it hard for transgenders to be seen as good parents, let alone parents.
Transgenders are often viewed, due to lack of information and awareness , as immoral and a bad influence to children. The NGO maintains that transgenders’ desires to reproduce or build a family has nothing to do with gender or cannot be reduced to gender or genitals. People regardless of gender identity have the desire to reproduce and build a family.
To sum up, Justice for Sisters provides these approaches as the way forward for society to understand the community:
a. The government must have meaningful dialogue with the transgender community, immediately stop all arrests and prosecution of transgender persons because of their gender identity.
b. Authorities must repeal laws that criminalise transgender, take all measures to increase access of transgenders in the education, healthcare and employment sectors, and change the attitude of the public services towards transgenders.
c. Non state actors, including the private sector needs to review employment policies and adopting ones that are transgender-friendly, while having a greater role in public education, by organising gender sensitization seminars at workplace.
d. Organising more public discussions regarding gender and social constructs, as well as have more spaces for transgenders to express themselves and be represented.
e. Media needs to increase positive representation of transgenders and not reduce transgenders to genitals and transitioning experiences, and play a greater role in public education.
Image credit: Afif Raiezal/The Malaysian Insider