“A male person posing as a woman” : the state Sharia law that criminalizes transgender women in Malaysia

By Isma Hassaine Poirier

Staff Writer 

Photo from Justice for Sisters 

 

Last June, nine transgender women were arrested in Kelantan, the northeastern 

state of Malaysia, for being “a male person posing as a woman”. Seven of them were 

fined and the two others sentenced to jail time, before being released on bail pending 

the outcome. The nine women were attending a private event when officials from the 

Kelantan Islamic Department (JHEAIK) burst in and arrested them. 

Malaysia, located in Southeast Asia, counts many ethnic groups. The Muslim 

population is the majority amongst them, representing around 60% of the 30 million 

people in the country, and Sharia law is commonly applied, sometimes a drastic 

version of it. Minorities often pay the price of such rigorist ruling. In this case, it is the 

LGBT community, and within this community, the transgender group. 

The story of these nine women is far from being anecdotal. Transgender women are 

subjected to abusive arrest and humiliation. In a September 2014 document entitled 

“I am Scared to Be a Woman”, Human Rights Watch reported on the worrying 

situation of transgender people in Malaysia and collected testimonies from many 

victims of abuses and human rights violations by the religious police. Following 

arbitrary arrests, transgender people are often subjected to ill-treatments and 

humiliation. When they are sentenced to jail time, transwomen are sent to male 

blocks in prison to serve their time. This situation makes them fragile and leaves 

them exposed to a plethora of abuses such as extortion of money or sex.  

The Malaysian society has not always harboured hostile feelings against transgender 

people. Indeed, until the 1980’s, transgender people were not subjected to any law 

targeting their freedom and enjoyed a relatively high degree of acceptance. In the 

beginning of the 80’s, the country shifted towards a prominent Islamization of public 

policy that affected transgender people. A series of legislative initiatives were set in 

motion in order to criminalize them. Furthermore, a Fatwa or Islamic decree, issued 

in 1982, forbade all transgender people to undergo sex reassignment surgery (SRS). 

The flames of hatred against transgender people are fueled by state officials and 

religious leaders, leading to abuse at the expense of the transgender population 

dignity and  fundamental rights, even though Prime Minister Najib Razak insists on 

presenting Malaysia to the international community as a moderate Muslim country. 

The truth is that discrimination can be found in many areas of life, from housing to 

education, medical care and employment. 

In November 2014, there was reason for hope in the fight for transgender people’s 

rights. A group of transwomen had filed a case and challenged section 66 of the 

Sharia law in place in the southern state of Negeri Sembilan, after being arrested 

repeatedly under dubious accusations such as wearing feminine hair 

accessories.The Court of Appeal in Kuala Lumpur ruled in favor of the transgender 

women by calling the cross-dressing ban unconstitutional. While this ruling is only 

binding in this specific state, it could have had repercussions on the legal status of 

transgender people in the rest of the country. But so far, it has not – instead, the 

state’s Islamic Religious Department has appealed the ruling to the top Federal 

Court. A hearing is due in August.

The organisation Justice For Sisters, based in Kuala-Lumpur, is actively campaigning 

against the violence and persecution against Mak Nyah - the Malay name of the 

transwomen minority in Malaysia. Their aim is to challenge the state Sharia law and 

spread a positive image of transwomen. This initiative is one of the few fighting for 

the cause. There is still room for hope even though there is a long way to go to 

achieve acceptance and freedom for transwomen in Malaysia.