Human Rights Watch says the Putrajaya Court of Appeal will hear a challenge on May 22nd, to the constitutionality of the state Shariah law.
Three transgender women from Negeri Sembilan state will ask the court to remove the law that prohibits a man from identifying as a woman, or wearing feminine clothes.
Presenter: Sen Lam
Speaker: Malaysian transgender activist Nisha Ayub, spokeswoman for Justice for Sisters, in Kuala Lumpur
NISHA: In Malaysia, we have two laws – one is federal law, the other is state law. And the one the transgender people are challenging is basically, the state Islamic law.
What we're trying to say is that, our rights are based on the federal constitution in Malaysia, is totally against what is stated in the Islamic Shariah law, or the Shariah law, basically. So, we're saying that for example, the right to facilitate, to the right to our freedom of expression, totally contradicts the Islamic Shariah law.
LAM: So how does this law, how does it infringe transgender rights – what are some of the challenges that transgender women face?
NISHA: For example, in the Shariah law, we have a law against cross-dressing, and it's specifically for Muslim transgender women. We can be fined a maximum to one thousand ringgit (approximately $A330) and even imprisonment of six (months) to one year imprisonment.
In Malaysia, we're not recognised legally, right.. If I'm a transgender woman and if I'm on the street walking, just doing my own business or whatever, I can be caught by these religious people based on the Shariah law, just being who I am.
LAM: And I understand that officials from the state Islamic religious department, they're also making life difficult for transgender women?
NISHA: Yes definitely they are.
Let me give you an example that like a few cases of transgender women that have reported to us saying that they've been arrested just by eating in public.
And not just that, when they're arrested they saw cases of transgender women being violated their rights, for instance they were not given even a phone call to make when they were arrested.
LAM: And are they charged with anything?
NISHA: Yes they are charged, they are charged under the Section 66, which is for cross-dressing.
LAM: And what usually happens to these women?
NISHA: Usually they'll be put in the lock-up, males lock-up, and then they were brought to the court the next day. And if they plead guilty, automatically they'll be sent to prison or even fined together, or both actually.
LAM: So even when they're being detained, they're being held together with straight men (with criminals), might they be vulnerable under detention?
NISHA: Definitely because we're not recognised as being a transgender woman and we're being viewed as male and Muslim. So if we are caught we will be definitely put in the males lock-up or in the males' jail basically.
LAM: Transgender women they've been visible for decades in Malaysia and generally tolerated from my observation, generally tolerated in the community. Has that climate of tolerance changed?
NISHA: Ok transgender people have been visible in Malaysia based on culture and so on in Malaysia, but I feel that because of political changes, the issue of LGBT (Lesbians, Gays, Bisexual and Transgender) has been politicised, therefore the trans-people are more affected and this is because we are more visible.
LAM: Is that partly because sections of politics, particularly in UMNO, that they're using the issue of sexuality for political reasons?
NISHA: Yes, yes, that's what I'm saying.
For instance, in the case of Anwar Ibrahim the issue of LGBT has been used to say that he is basically being a bisexual guy and so on. But because of him being the opposition side, therefore the government and certain bodies have been using LGBT and saying that LGBT is basically the enemy of Islam. And because of that it actually creates a hate trans situation whereby we even have groups of people going all around in certain states in Malaysia, going around and attacking especially transgender people because we are visible compared to the LGB.
LAM: Nisha you've been an activist for some time now, can you tell us a bit about your personal journey? Have you experienced abuse at the hands of the authorities?
NISHA: Yes I've been advocating transgender rights for the past seven to eight years. And this is because of my own personal experience.
I was actually imprisoned because of being a transgender woman under the Shariah law. And I can tell you that the experience I had in the prison itself was totally devastating. Basically I was sexually harassed, I had to perform oral sex for the inmates and so on. And basically, just because I'm a transgender woman I feel that I face lots of discrimination and prejudice just because of my gender identity.
LAM: And through your activism work, do you feel far more empowered now?
NISHA: Yes definitely, definitely. And because of my experience working with certain NGOs and advocating on transgender issues I met a lot of empowered people and therefore it automatically empowered me being who I am. Now I'm aware of my rights and of the law in Malaysia, and compared to that time when I was 20 years old, I was so naive about the law in Malaysia and I didn't know how to protect myself.
But now I'm aware of everything in Malaysia, especially the law.