CASE BRIEF: Transgender

DETAIL OF THE CASE:

Parties: Muhamad Juzaili bin Mohd Khamis and Ors.
: The Defendant: The Government of Negeri Sembilan and Ors.
Relationship: The three transgender individuals against the government of Negeri
Sembilan and Ors.
Judge: Mohd Hishamuddin Yunus, JCA
Aziah Ali, JCA
Lim Yee Lan, JCA
Court: Court of Appeal, Putrajaya
Date of decision: 7th November 2014
Citation: NIL

1. Facts of Case
The appellants, three transgender women, Muhammad Juzaili, Shukur and Wan Fairol
applied for judicial review of section 66 of the Syariah Criminal Enactment 1992 (Negeri
Sembilan) on the grounds that it was unconstitutional. Section 66 makes it an offence for a
Muslim man to wear a womans attire or pose as a woman in public. Those convicted face a
RM1000 fine, a term of imprisonment not exceeding six months, or both.
The Appellants were described in the case as Muslim men who were not normal
males because they have Gender Identity Disorder (GID). From a young age each of the
appellants had been expressing themselves as a woman and showing mannerisms of the
feminine gender such as wearing womens clothes and using makeups. Each of the appellants
had been repeatedly arrested, detained and prosecuted pursuant to section 66.
The appellants applied to the High Court for judicial review of section 66 arguing that
it should be declared void as it violated a number of their constitutional rights that are their
right to equality. The High Court dismissed the application and the Appellants were granted
leave to appeal in this case.

2. Legal Issue
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1. Whether section 66 is in breach of Article 5(1) of the Federal Constitution.

2. Whether section 66 contravenes Article 8 (1) of the Federal Constitution.
3. Whether section 66 contravenes Art. 8 (2) of the Federal Constitution.
4. Whether section 66 is inconsistent with Art. 9 (2) of the Federal Constitution.
5. Whether section 66 is in breach of Art. 10 (2) of the Federal Constitution.
6. Whether male Muslim GID sufferers are persons of unsound mind.

3. Judgement
The judges allowed the appeal of Khamis and Ors. against defendant in Civil Appeal No
N-01-498-11/2012. The judges were found that section 66 was inconsistent with a number of
fundamental liberties contained within Part II the Constitution and was therefore
unconstitutional. It was not disputed that all Islamic laws must also be consistent with Part II
of the Constitution. Article 4(1) of the Constitution provides that any law that is inconsistent
with the Constitution shall be void to the extent of that inconsistency and accordingly section
66 was void.
Therefore, the judges hold that section 66 is invalid as being unconstitutional. It is
inconsistent with Art. 5(1), Art. 8(1) and (2), Art. 9(2), and Art. 10(1)(a) of the Federal
Constitution.
In reaching its decision that the judges emphasised that the question for it was not
whether section 66 is consistent with the precepts of Islam. Nor did the judges accept the
arguments of the State that section 66 was not detrimental to the appellants because persons
suffering from GID were persons of unsound mind and so had a defence open to them. In
finding so, the Court stated that it is absurd and insulting to suggest that the appellants and
other trans genders are persons of unsound mind.

4. Legal Principles
1) Article 5(1)
The Court found merit in the appellants arguments, stating that as long as section 66 is
in force the Appellants will continue to live in uncertainty, misery and indignity. Citing
previous case law, the Court noted that article 5(1) encompasses the right to live with dignity.
Section 66 was therefore inconsistent with article 5(1) because it deprived the appellants of
their right to live with dignity. In addition, previous judicial authority established that article
5(1) includes rights such as livelihood and quality of life. Section 66 prevented the appellants
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CASE BRIEF: Transgender

from moving in public to reach their places of work and so was also inconsistent with article
5(1) in this way.
2) Article 8(1)
Article 8(1) of the Federal Constitution guarantees equality and equal protection of the
law but section 66 is prohibit all male Muslims from cross-dressing or appearing as a woman
in a public place. The truth is that the appellants are male Muslims but they are suffering
from Gender Identity Disorder (GID) that are different situation compared to normal male
Muslims. Being unequal, the appellants should not be treated similarly as the normal male
Muslims as section 66 does not provide for any exception for sufferers of GID like the
appellants and not recognize the existence of sufferers of GID.
They will commit the crime of offending section 66 the very moment they leave their
homes to attend to the basic needs of life, to earn a living, or to socialize when they dress in
public in the way that is natural to them and lead to be liable to arrest, detention and
prosecution. Therefore, section 66 is inconsistent with Art. 8(1) of the Federal Constitution as
it is discriminatory and oppressive, and denies the appellants the equal protection of the law.
3) Article 8(2)
Section 66 prohibited male Muslims from cross-dressing or posing as women in public
but did not prohibit female Muslims from cross-dressing as a man or from posing as a man.
Therefore, section 66 was discriminatory on the ground of gender and violated article 8(2).
Furthermore, section 66 was not personal law for the purpose of article 8(5), which
allows discrimination on the basis of gender in personal law. Section 66 was not enacted
pursuant to the sub-item of Item 1 of List II of the Ninth Schedule referring to personal law;
rather, it was enacted pursuant to the sub-item of Item 1 of List II that refers to creation and
punishment of offences by persons professing the religion of Islam against precepts of that
religion.
4) Article 9(2)
Section 66 went further than just restricting the appellants freedom of movement and it
denied them freedom of movement. Suffers of GID would never be able to leave their homes
and move freely because they would always be subject to arrest and prosecution under
section 66. Even if section 66 only amounted to a restriction on freedom of movement, it
would be subject to the test of reasonableness laid down by the judicial authorities, which it
would not pass.

5) Article 10(1)
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CASE BRIEF: Transgender

Article 10(1) (a) of the Constitution protects freedom of expression. Citing Tinker v
Des Moines Independent Community School District 393 U.S 503 (1969) and National Legal
Services Authority v Union of India and Ors Writ Petition (Civil) No. 400 of 2012, the Court
held that dress and clothing are forms of expression. Therefore section 66 impacted the
Appellants right to freedom of expression. Only Parliament has the ability to restrict freedom
of expression (under article 10(2) of the Constitution) in limited situations and when such
restrictions are reasonable. There is no ability for a state legislature, such as the Legislative
Assembly of the State of Negeri Sembilan, to restrict freedom of expression. Section 66 was
therefore unconstitutional. Further, any restriction by federal Parliament would have to be
reasonable and the restriction imposed by section 66 is unreasonable.
6) Unsound minds
State Legal Advisor of Negeri Sembilan said that section 66 is not prejudicial to the
appellants as they are persons of unsound mind and hence entitled to the defence accorded by
section 11 of the Syariah Criminal Enactment 1992 (Negeri Sembilan) the wordings of which
are similar to section 84 of the Penal Code. The section 84 of penal code stated nothing is an
offence which is done by a person who, at the time of doing it, by reason of unsoundness of
mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or
contrary to law. But because of the absence of medical evidence it is absurd and insulting the
appellants and other transgenders are persons of unsound mind.

5. Decision of court
Appeal allowed. The application for judicial review granted and each party bear
own cost.
All of the judges decided that the section 66 of the Syariah Criminal Enactment
1992 (Negeri Sembilan) on the grounds that it was unconstitutional. It is noteworthy
that, in reaching its decision, the Court was highly critical of the High Court judge
who had dismissed the judicial review. The Court described the findings of the High
Court Judge as tainted by unscientific personal feelings or personal prejudice and
stated that the Judge had failed to understand the unrebutted medical evidence and
was transfixed with homosexual relationships when the current case had nothing to
do with homosexuality.

6. Rules of Law

Che Omar bin Che Soh v. Public Prosecutor [1988] 2 MLJ 55 (refd)
Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 (refd)
Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau (refd)
Pinang & Anor v Utra Badi K Perumah [2000] 3 CLJ 224 (refd)
Francis Coralie v. Union of India AIR [1981] SC 746 at p. 753 (refd)
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CASE BRIEF: Transgender

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor. [1996] 1 MLJ 261
(refd)
Lee Kwan Woh v. PP [2009] 5 CLJ 631 (refd)
Theatre v State of Andra Pradesh and Ors [1993] 3 SCR 616 at p 637A (refd)
Dr. Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19 (refd)
Muhammad Hilman Idham & Ors v. Kerajaan Malaysia & Ors [2011] 9 CLJ 50 (refd)
Tinker v Des Moines Independent Community School District 393 U.S. 503 (1969)
[IAP(2), Tab 73] (refd)
Dewan Undangan Negeri Kelantan & Anor. v Nordin Salleh & Anor [1992] 1 CLJ 72
(refd)
National Legal Services Authority v Union of India and others,Writ Petition (Civil)
No. 400 of 2012 (decided on 15-4-2014) (refd
Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608 (refd)

7. Legislation referred to
o
o
o
o
o
o
o
o

Article 74(2) of the Federal Constitution Malaysia

Article 74(3) of the Federal Constitution Malaysia
Article 4 of the Federal Constitution Malaysia
Art. 14 of the Indian Constitution
Art. 15 of the Indian Constitution
Art. 19 (1) of the Indian Constitution
Art. 21 of the Indian Constitution
Bill of Rights (Freedom of Expression), First Amendment of United States
Constitution

8. Procedural history
This case was between Muhammad Juzaili bin Mohd Khamis and others and State
Government of Negeri Sembilan and others. At first, it is a string of cases of three men
subjected to Shariah Law for cross-dressing and had been either arrested or penalised by the
Negeri Sembilan Islamic Religious Department before, were applying for a judicial review to
declare Section 66 unconstitutional. Then, they bought this case to Civil Court to seek a
declaration that section 66 of Syariah Criminal Enactment Negeri Sembilan 1992
unconstitutional and should be void but the case was dismissed. After that, they bought this
case to High Court of Negeri Sembilan and had been tried on 11 October 2012 in High Court
in Negeri Sembilan. The case was dismissed an application by three Muslim transgender
individuals to declare unconstitutional a law (section 66) that bans men from dressing as
women because the appellants must adhere to law as they are Muslims and are born male.
Lastly, they appeal for judicial review to Court of Appeal.

CASE BRIEF: Transgender

9. Personal Commentary
In my personal opinion, I absolutely disagree with the decision that had been made by
the Court of Appeal because in Article 121 (1A), it have been stated that the Civil Court shall
have no jurisdiction in respect of any matter within the jurisdiction of the Syariah court. We
all know that in actuality, the appellants were all men and despite the presence of medical
evidence that showed how they had a different form and body characteristics which were
distinct from the normal Muslims men, the court should have not allowed the appeal.
Besides, I am with the opinion that the court of Appeal had erred in ruling that Section 66 of
the Syariah Criminal Enactment of Negeri Sembilan 1992 is void and unconstitutional.
The Court of Appeal actually cannot challenge the federity of Islamic law that has been
enacted by the State. Civil Courts should also respect the provision under Hukum Syarak as
enacted in Islamic Laws. Apart from that, every law that have been passed by State
governments which is in regards to Islamic law must be respected by Civil Courts.
According to Islam, there exist only three types of sex which are male, female and
hermaphrodite (2 genitals). The claim of medical reports which stated that the appellants
were having gender identity disorders should be judged invalid. If this case was appealed by a
non-Muslim then, it may be accepted but unfortunately the real appellants were all male
Muslims. The judgement that had been made was too liberal as the laws applied were laws
that had been practised from India and United States.
Malaysia is an Islamic country and most of the citizens are Muslims. This fact have
been clearly stated in Article 3 of the Federal Constitution (Islam is the religion of
Federation). Thus, why must we refer and apply these kinds of laws from foreign countries if
we ourselves have an actual religious belief? The laws that have been made by India and
United States are based only on human rights factor whilst Islamic laws are always made
based on the Al- Quran and Sunnah.
When Section 66 is ruled unconstitutional, cases like sodomy, same-sex marriage, lewd
and immoral acts are more likely to happen. The restriction that have been made by the State
Assembly of Negeri Sembilan in Section 66 is for the sake of protection from the arise of
those unfavourable cases. In Islam or precisely according to Majlis Fatwa Kebangsaan, it
have been said that acts of cross-dressing by Muslim men or women is forbidden (haram).
When the transgender individuals try to change their parts of body to be like man or
women, it will lead to some health problems. Some transgender people take hormones or go
through surgeries to feel more comfortable with their bodies. For instance, the prostate cancer
is more likely to be faced by male and cervix cancer and breast cancer are more likely to be
inflicted on women. Thus, when they change their parts of body, there is a high possibility of
them having to face these types of diseases. On top of that, the transgender women will have
to brave the increase risk of HIV infection. Many of them will also face depression and some

CASE BRIEF: Transgender

of them are likely to commit suicide. Lastly, some transgender women are found to have the
possibility of getting pregnant due to the existing female hormones in their body.
Lastly, I also feel that the section of 66 of Syariah Criminal Enactment of Negeri
Sembilan 1992 should be abolished again and should be stress on female, as the legislation is
bias because it just focuses to male who wear cross-dressing attires and act as woman but
how about the female that act and attire as man? From all the reasons that I had stated, I
strongly disagree with the jurisdiction that had been made by the Court of Appeal in
Putrajaya.