Court: 'Insulting' to say transgenders unsound

 

It is "insulting" to say that transgender individuals have "unsound minds" as they are suffering from something which they did not choose, said the Court of Appeal.

"Our short answer to this is that in the absence of medical evidence it is absurd and insulting to suggest that the appellants and other transgenders are persons of unsound mind," Justice Mohd Hishamudin Yunus (below).

In his grounds of judgement for the Nov 7 decision, he said that evidences put forward to the court show that the transgender appellants suffer from Gender Identity Disorder, which cannot be treated by any known therapy.

As such, he said that Section 66 of the Negri Sembilan Syariah Enactment banning cross-dressing  is unconstitutional as it condemns transgenders to a life of "uncertainty, misery and indignity".

He added that the same Section also means that the appellants will be confined to their homes for fear of arrest.

"This is degrading, oppressive and inhuman," said Hishammuddin who led the three-member panel consisting also of Justice Aziah Ali and Lim Yee Lan.

The bench also ticked off the Seremban High Court’s verdict in September 2013, which rejected the judicial review application against the syariah enactment, for making "disturbing" findings based on "prejudice".

The High Court judge had then said that transgendered people "have male genitalia and therefore have sexual desires, so will be involved in homosexual activities, a cause for HIV".

Therefore, the High Court judge had said, Section 66 of the Negri Sembilan Syariah Enactment is required to fend off a "greater evil".

"In the present case we note with much disquiet that the learned Judge seemed particularly transfixed with ‘homosexual relations’ in her reasoning.

"We wish to stress that such reasoning is without basis and is grossly unfair to the appellants and other male Muslim sufferers of GID," he said.

"There was a complete failure on the part of the learned judge to appreciate the unrebutted medical evidence before her."

Whether it's against Islam is irrelavant

Reviewing the evidence from the Negri Sembilan mufti, Mohd Hishamudin said the fact that Muslims are prohibited from cross-dressing is irrelevant to the constitutional challenge.

"We wish to make it clear that whether or not Section 66 is consistent with the precepts of Islam is not the issue in the present case," he said.

He said the mufti’s opinion "remarkably fails" to address the position of Islam for sufferers of GID, like the appellants.

On Nov 7, the Court of Appeal allowed the appeal by Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail to declare Section 66 unconstitutional.

The appellants had in 2013 lost their judicial review application on the same matter at the Seremban High Court.

The Negri Sembilan government is seeking to appeal the decision at the Federal Court.

The Court of Appeal decision has also courted brickbats from the PAS ulama wing, Muslim Lawyers’ Association and the Muslim Youth Movement (Abim).

The critics say the decision challenges the positin of Islam and Syariah Court in Malaysia.