A five-judge panel on the Malaysian Federal Court ruled the three transgender women who challenged the Negeri Sembilan statute, known as Section 66, should have brought their case directly to the country’s highest court because it involved the constitution.
The three trans women filed their case with the Seremban High Court in Feb. 2011.
The court later upheld the constitutionality of Section 66. The trans women appealed the ruling to the Putrajaya Court of Appeals, which found the law unconstitutional in a landmark decision it issued last November.
Negeri Sembilan officials appealed the ruling to the Federal Court.
The Malay Mail, a Malaysian online newspaper, reported Justice Tan Sri Md Raus Sharif said the Seremban High Court that allowed the case to proceed in 2011 and the Putrajaya Court of Appeals that found the Negeri Sembalin law unconstitutional last November were “in great error in determining the validity of Section 66.”
Aston Paiva, a lawyer who represents the trans women, described the ruling as “really disappointing” as he spoke with the Washington Blade from the Malaysian capital of Kuala Lumpur.
“It’s particularly devastating to the community,” said Paiva
Thilaga Sulathireh, founder of Justice for Sisters, a Malaysian advocacy group, echoed Paiva.
“The decision sets aside time, effort, evidence, lived experiences of the transgender community on the grounds of technicality,” said Sulathireh.
Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch, described the decision as a “major set-back for transgender rights” in the country.
“Trans women in Malaysia, who were buoyed by the landmark lower court decision recognizing their rights to be themselves, have been let down once again,” she said.
Section 66, which is based on Sharia law, has been in place in Negeri Sembilan, which is south of the Malaysian capital of Kuala Lumpur, since 1992. Those convicted under the statute face a fine of around $300 and/or up to six months in jail.
The case on which the Federal Court ruled was filed after religious authorities arrested trans women in what Justice for Sisters described as a “series of violent and arbitrary arrests.” Ghoshal told the Blade the trans women behind the case “have been victims of horrific abuses,” including at the hands of state religious officials who physically and sexually assaulted them.
“They’ve spent four years literally putting their lives on the line — taking on all the risks associated with publicity — in an attempt to seek justice for the broader trans community,” she said. “To be sent back to the drawing board at this stage is deeply disappointing. But we still believe that if the courts in Malaysia have any semblance of independence, eventually justice will prevail.”
The Malay Mail reported that Paiva said Thursday’s ruling allows him to bring the case “straight to” the Federal Court. The lawyer told the Blade that he is considering a request for the tribunal to reconsider its decision.
“We’re contemplating a review of the decision,” said Paiva. “We feel that law is clearly unconstitutional.”
‘We are not defeated by the decision’
The ruling comes against the backdrop of mounting criticisms against Malaysia over its LGBT rights record.
The Federal Court in February upheld former Deputy Prime Minister Anwar Ibrahim’s conviction under Malaysia’s anti-sodomy law.
Secretary of State John Kerry in August raised Anwar’s case during his meeting with Malaysian Prime Minister Najib Razak in Kuala Lumpur. Najib later said his country’s government will not defend LGBT rights and other issues that are not within the “context of Islam.”
Police have yet to identify the two men who attacked Nisha Ayub, a prominent Malaysian trans advocate, outside of her apartment last month. Human rights advocates have also criticized Malaysia’s inclusion in the Trans-Pacific Partnership on which negotiators from the U.S. and 11 other Pacific Rim countries reached an agreement on Monday.
Sulathireh — a TPP critic — said trans Malaysians “has come a long way” since the case against the Negeri Sembalin law was filed in 2011.
“We have always understood that litigation is just one strategy of the many strategies to promote and protect the human rights of transgender persons,” she said. “While we are disappointed, we are not defeated by the decision. We will continue to challenge structural violence and assist trans people to challenge structural violence, raise awareness, monitor and document human rights violation towards people on the basis of gender identity ad gender expression, and explore diverse strategies to promote and protect the human rights of trans people.”