Transgenders and Constitutional Rights – Gurdial Singh Nijar


Source: The Sun Daily


Gurdial Singh Nijar - file pic

Gurdial Singh Nijar – file pic

“MEDICALLY, they (transgender people) are born as males but their instincts and emotions are like that of females,” says the head of the Council of Professors, Datuk Amin Jallaludin.

He should know – he is a medical doctor and presently the vice- chancellor of Universiti Malaya.

This buttresses the basis of the recent decision of the Court of Appeal that transgenders quite naturally act in accordance with their instincts and emotions – a condition described in undisputed medical evidence presented to the Court as a “Gender Identity Disorder” (GID).

Indeed the court considered the testimony of two court expert psychiatrists that “GID was not a preference, was ineradicable and the wearing of clothing of the opposite sex occurred among sufferers”; and that there was no scientifically proven medical treatment or psychological therapy.

To then make it punishable to act out their natural God-bestowed instincts (such as cross-dressing) would consign them to a life of “uncertainty, misery and indignity”, said the court.

It was on this basis that the court declared Section 66 of the Negri Sembilan Syariah Enactment banning cross-dressing as unconstitutional.

While the court experts and Amin may differ as to whether or not this condition is curable, (even Jakim recognises the condition by its offer for empowerment programmes for transgenders), until it is, acting out one’s instincts in the benign form of alternative dressing surely cannot be criminalised. Else transgenders will forever “be confined to their homes for fear of arrest,” said the court. This was “degrading, oppressive and inhuman”.

Legally, it is difficult to fault the decision of the Appeals Court. It is eminently sound in law.

First, the High Court was in error when it reasoned that the Syariah Enactment is required to fend off a “greater evil” – namely sexual desires leading to “homosexual activities, a cause for HIV”. There was no evidence for this. Indeed the evidence pointed to a contrary conclusion. Such reasoning, Appeals Court Judge Mohd Hishammuddin Yunus pronounced, is without basis and grossly unfair to male Muslim sufferers of GID.”

Secondly, the Federal Constitution grants to every citizen the right to live with dignity and without interference – as set out in a slew of articles guaranteeing the fundamental right to liberty, equality before the law, freedom of movement and expression.

Section 66 punishes the (unavoidable) gender expression of transsexuals, degrades and devalues persons with GID. This deprived them of their value and worth as members of society. This, said the Appeals Court – correctly, with respect – violated the right to live with dignity as guaranteed by the Federal Constitution.

Finally, the Appeals Court was at pains to point out that the decision was not about whether section 66 banning cross-dressing was consistent with the precepts of Islam. The issue was whether citizens, born or bestowed with certain traits, had the same rights under the Federal Constitution as all others. The appeals judge noted that the opinion of the mufti “remarkably fails” to address the position of Islam for sufferers of GID, like the beauticians who were the appellants in the case.

– 12 November 2014

Gurdial Singh Nijar
is a professor with the Law Faculty, Universiti Malaya.