Constitutionalizing Transgender Rights in Malaysia

By Jonathan Korn

This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.

Case Summary:

In 2014, a Malaysian federal court invalidated an Islamic state law criminalizing the public behavior and appearance of transwomen (people identifying as women and identified as men at birth). The Court ruled that the Malaysian Constitution’s fundamental rights trumped state-legislated Islamic law. It relied heavily on the notion that the Muslims being prosecuted suffered from Gender Identity Disorder (GID), over which they had no control. Evidence of the plaintiff’s GID and information about GID was provided to the Court by two psychiatrists, a psychologist, and a sociologist.


Muhamad Juzaili b. Mohd Khamis et al. v. State Government of Negeri Sembilan et al., (2014) Civil Appeal No. N-01-498-11/2012 (Malaysia).


Background on Malaysian Legal system

The Malaysian Constitution establishes Islam as the religion of the Federation of Malaysia. Art. 3(1). Roughly 61% of Malaysia’s population is Muslim. The Constitution empowers each of the thirteen Malaysian states to legislate on matters related to Islam and applies those laws to Muslims only. Art. 74(2). The constitution also provides for each state to appoint a head of the religion of Islam. Art. 3(2). Syariah (Sharī ͑a) courts in each state have jurisdictions over Muslim citizens in that state who are alleged to have violated any legislation promulgated under that authority. A civil court system exists alongside the Syariah courts with jurisdiction over non-Muslims and for non-Islamic laws applicable to Muslims. The Federal Courts of Appeals have jurisdiction over questions of the validity of law made by state legislatures. Art. 128(1).

Muhamad Juzaili b. Mohd Khamis et al. v. State Government of Negeri Sembilan et al.

In August 2012, three Muslim men in their 20s who worked as bridal make-up artists applied for judicial review of a state law after being detained, arrested, prosecuted, and subject to custodial abuse by the religious authority of Negeri Sembilan. They argued to the High Court of Seremban (a civil, federal court of original jurisdiction), that Section 66 of the state’s law conflicted with the Malaysian Constitution. Section 66 was passed in 1992 by the Negeri Sembilan state legislature to criminalize men who dress in women’s clothes or who pose as women in public. The petitioners were activists in that they sought declaratory relief that Section 66 was unconstitutional, and not to, for example, end their detention. On October 11, 2012, the High Court of Seremban dismissed the appellants’ application for judicial review, though the judge remarked the state’s Islamic Religious Department ought to be more professional and give counseling to trans people. The Court of Appeals in Putrajaya heard the plaintiffs’ appeal on November 7, 2014.

The Court’s Decision

The Appellate Court ruled in favor of the appellants, first holding that the Federal Constitution was supreme over laws passed by the state legislature, including Islamic laws. Secondly, it ruled that Section 66 was inconsistent with the Constitution on multiple grounds and were void for that reason. The inconsistencies were rooted in the Malaysian Constitution’s protections of liberty, freedom of movement, equal protection, discrimination on the basis of gender, and freedom of expression. Their reasoning is nearly entirely dependent on distinguishing Muslim men on the basis of Gender Identity Disorder (GID).[1] The Court devoted considerable attention to expert evidence on GID and the medical reports of psychologists and psychiatrists in particular. The Court identified the appellants as “sufferers of GID” that did not choose the condition and could not be cured of it. This is an essential move by the Court and the decision is defined by it. For example, in considering the affidavit of the Muftī of the State of Negeri Sembilan, the Court dismisses the Muftī’s opinion because it is merely offered to demonstrate the compatibility of banning Muslim men from cross-dressing with Islam, rather than what the Court considers the key issue – whether banning Muslim men with GID from cross-dressing is compatible with Islam. Indeed, though the Court ruled that Section 66 is void, its reasoning is consistent with upholding state laws that prohibit dressing or posing as a member of the opposite sex for both sexes as long as they exempt Muslims with GID.

The Court held that Section 66 is inconsistent with Art. 5(1) of the Constitution, which guarantees that “no person shall be deprived of his life and personal liberty save in accordance with law.” It pointed to precedent from Malaysia and India that establishes an expansive understanding of life and liberty and a narrow exception for deprivation when laws are fair and just. On that basis, the Court held that Section 66 infringed on the appellant’s right to live with dignity and therefore was unjust. It separately held that those with GID who cross-dress are unable to move through public places for work when they are subject to arrest, thus violating Art. 5(1)’s liberty guarantee on a second ground as well as Art. 9(2)’s guarantee of freedom of movement.

The Court also found that Section 66 was inconsistent with Art. 8(1)’s guarantee of equal protection of the law. The Court looked again to the Indian Supreme Court for the proposition that equality meant that unequal persons should not be treated equally. Because it considered Muslim men with GID as different from Muslim men without GID, and because Section 66 failed to distinguish between the two groups, the Court held that Section 66 violated this proposition.

The Court also voided Section 66 because it violated Art. 8(2)’s prohibition on discrimination on gender grounds. Section 66 prohibited Muslim men from cross dressing, but not Muslim women, and was therefore unconstitutional.

The Court provided yet another grounds for invalidating Section 66 – that it violated Art. 10(1)(a)’s protection of the freedom of expression, since clothing serves as a form of expression. This protection still allows for reasonable restraints on expression, but only the (federal) parliament has this power under the constitution, not the legislatures of states like Negeri Sembilan.[2] Here, the Court drew from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which protected clothes (black armbands) as a form of protected expression.[3]

The Court rejected the state’s contention that Section 66 does not conflict with the Constitution because of the availability of a defense from the state’s Syariah Criminal Enactment of 1992. That law was purported to provide those with GID a defense to Section 66 as persons who were not culpable for their actions because they had unsound minds. The Court rejected that assertion and said, “in absence of medical evidence it is absurd and insulting to suggest that the appellants and other transgenders are persons of unsound mind.”[4] This is somewhat puzzling on both sides. First, the appellants appear to have been successfully prosecuted under Section 66 (suggesting that the defense was not indeed available or that the state prosecuted individuals with a complete defense) and further, the Muftī for the state opined that Section 66 is consistent with the precepts of Islam. However, contra the Court’s rejection of the argument, there is also no indication that medical evidence is necessary to demonstrate that particular defense under the state’s Syariah criminal law. And if Section 66 did incorporate an exemption for those with GID for being of unsound mind as a matter of law, there should be no basis for ruling that Section 66 is unconstitutional for failing to provide an exemption for those with GID. Under this theory, Section 66 could still be found unconstitutional for violating constitutional gender equality protections.


[1] The Court cites expert testimony and the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders) in discussing GID. By the time of the opinion, DSM-V had already been released, which renamed GID as “gender dysphoria” to remove the stigma associated with “disorder.”

[2] Malaysia has several federal territories, where Syariah law is legislated by the parliament. This rationale is presumably unavailable for any equivalent of Section 66 in those jurisdictions.

[3] Note that Malaysian courts are bound by precedent and often bring in cases from other jurisdictions as persuasive. See Murtala Ganiyu Murgan et al., Operation of judicial precedent in Malaysia and Nigeria: A comparative analysis, 1 Int’l J. of Law 1, 32 (2015). Malaysia was colonized by the British, who have a common law tradition of stare decisis.

[4] Muhamad Juzaili b. Mohd Khamis et al. v. State Government of Negeri Sembilan et al. (2014), at 30.

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