The Court of Appeal which decided that Muslim transgender males have the right to cross-dress said the Negri Sembilan religious authorities had failed to prove Islam's position on how those who suffered from gender identity disorder (GID) should dress.
Judge Datuk Mohd Hishamudin Mohd Yunus, who led the appellate court's three-member bench, said the three Muslims in the case were not "normal males" as they suffered from the disorder, which had been confirmed through psychiatric and psychological tests.
The religious authorities did not rebut the medical evidence, the court said in its written judgment of its decision on November 7 that Section 66 of the Negri Sembilan Shariah Criminal Enactment violated provisions in the Federal Constitution.
The state religious authorities had filed an affidavit by the Negri Sembilan mufti, who said Section 66, which prohibited a male from dressing as a woman, was a precept of Islam.
"(The appellants' lawyer) makes a pertinent point that the mufti's opinion remarkably fails to address the issue that is crucial for the purpose of the present constitutional challenge: what is the position in Islam as to the appropriate dress code for male Muslims who are sufferers of GID, like the appellants?" Hishamudin said in his written judgment obtained by The Malaysian Insider.
The mufti's affidavit was filed in response to findings by sociologist Professor Teh Yik Koon, who had given supporting evidence for the disorder suffered by the appellants, in addition to explanations on how Section 66 had adverse effects on transsexuals and on Malaysian society.
Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail were the appellants in the case to declare Section 66 in the enactment as unconstitutional.
In 2013, the Seremban High Court had dismissed their judicial review application.
Without medical evidence to prove insanity, the court also rubbished a claim by the state legal adviser, Iskandar Ali Dewa, that transgender who behaved and dressed as women were of unsound mind.
"Our 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," Hishamudin said.
Ali, who represented the state religious authorities, had told the court last July that the three had a defence of being incapable of knowing if what they did was against the law.
This is under Section 11 of the enactment and is similar to Section 84 of the Penal Code where a person is unable of telling if he or she has broken the law.
The appellate court in a unanimous ruling had declared that Section 66 of the enactment was void as it violated the constitutional right of freedom of expression, movement and the right to live in dignity and equality.
The other judges on the bench were Datuk Aziah Ali and Datuk Lim Yee Lan.
Hishamudin said the provision in the enactment directly affected the appellants' right to live with dignity and deprived them of their worth as members of society.
According to court papers, the litigants are make-up artists who were arrested for dressing as women and had suffered deep-seated discrimination, harassment and even violence because of their gender identity disorder.
Hishamudin also said all enactments, including Islamic laws, passed by state assemblies must conform to the basic rights stated in the Federal Constitution.
He said Article 74 (2) read with the State List empowered the legislatures to make law on matters to Islam, but even this had its constitutional limitations.
"Article 74 (3) stipulates that the legislative power of the states are exercisable subject to conditions or restrictions imposed by the Federal Constitution."
He said Article 4 declared that the constitution was the supreme law of the federation and any legislation inconsistent with the document shall be declared void.
Hishamuddin said Part 11 (Articles 5 to 13) of the constitution guaranteed the fundamental liberties of all Malaysians.
"Reading Articles 74 (3) and 4 (1), it is clear that all state laws, including Islamic laws passed by the state legislatures must be consistent with Part 11 of the Federal Constitution." – November 11, 2014.
- See more at: http://www.themalaysianinsider.com/malaysia/article/negri-lost-transgender-case-over-failure-to-argue-identity-disorder-or-prov#sthash.Qr7LhOdE.dpuf
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