In a landmark ruling on Friday, the Malaysian Court of Appeal said that Sharia law's rule of punishing transgenders for cross-dressing contravenes freedom of expression, and therefore, is unconstitutional.
The panel of judge said the law was discriminatory as it fails to recognise men diagnosed with the Gender Identity Disorder (GID), or 'transgenderism' – a decision that marks a major victory for human rights in Malaysia.
The panel led by Justice Mohad Hishamudin Mohn Yunus thereby allowed the appeal of three transgender men, who sought to have Section 66 of the Sharia Criminal (Negri Sembilan) Enactment 1992 declared unconstitutional.
"We hold Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 as invalid and unconstitutional with Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a).
"The appeal is therefore allowed," the judge said while delivering his judgement. The panel, which included justices Datuk Aziah Ali and Datuk Lim Yee Lan, was unanimous in its decision, The Malay Mail Online reported.
According to Section 66 of the Sharia law, any Muslim man who "wears a woman's attire and poses as a woman", is punishable with a fine not exceeding RM1,000 or jail of not more than six months or both.
The court also ruled that a state legislative assembly has no power to restrict freedom of speech adding that only Parliament had the right to do so within good reasoning.
"Clearly, the restriction imposed on the appellants and other GID sufferers in unreasonable. Thus the aspect of reasonableness, Section 66 is unconstitutional," the court ruled.
A lower court had dismissed the case in 2012, saying the three transgenders must adhere to Islamic law because they were Muslim and born male.
Calling the law "degrading, oppressive and inhumane," the Court of Appeal on Friday heard that the High Court's earlier findings had wrongly implied that the Sharia law was reasonable in order to protect society from homosexuality, which would lead to the spread of HIV.
"The High Court's remarks are unsupported by, and contrary to, evidence and is tainted by unscientific personal feelings or personal prejudice," the judge said, The Star reported.
