Wednesday, January 15, 2014

Entrenching Stigma: Malaysia’s Cross-Dressing Law

This post was originally published on Muslimah Media Watch on 8 Jan 2014 


2013 ended with another decision, somewhere in the world, to entrench the persecution and ostracisation of a minority group. I’m referring to a new syariah law introduced by the Pahang Islamic Religious and Malay Customs Council (MUIP) in early December 2013, which would imprison for a maximum of one year or fine up to RM1000 (USD 304) a man who dresses like a woman, or a woman who dresses like a man.

The deputy director of the Pahang Islamic Religious Department (JAIP) added that the ruling aimed to “discourage such activities from being rampant” because existing systems of detention and advice are ineffective. In local news, the main reason for prosecuting “cross-dressers” is because they create the “tendency to sway the community towards immorality“. The mufti of Pahang explained further:
“Usually these mak nyah, they are men resembling women and what is their aim of appearing like women? Because they want to tempt other men. This means that they are inviting others to immorality.” [translated from Malay]
A proposal for a similar law in the neighbouring state of Negeri Sembilan waspreviously challenged in 2012 by four transgender men, but was rejected by the federal court. The lawyer who represented these men saw this decision as a “dangerous precedent… effectively saying that state-enacted Islamic law overrides fundamental liberties.” Negeri Sembilan has been enforcing the RM1000 fines for “cross-dressing” that Pahang has just newly enacted.

In the Malay-language news, the terms translated as “cross-dressers” are mak nyah and pengkid (an umbrella term referring to women imitating men; also includes lesbians, bisexuals, and transgendered men).

Although the transgender community in Malaysia is a very small minority and hardly constitutes any kind of significant political coalition, in the local news they are spoken of as a threat to other men and women, especially by getting “braver” at openly showing their identity. This is because of the “confusion” that they create about notions of masculinity and femininity.

The transgender community is spoken of as a “social problem”, with the National Fatwa Council even squarely banning the phenomenon of pengkid, calling them haram back in 2008. In May 2013 the mufti office of Selangor in charge of matters pertaining to haj also stated that it was haram for pengkid to go for haj because neither men nor women would want to share rooms with them (which is just a terribly confusing problem).

One worry is the lack of definition surrounding cross-dressing. For a law that allows the religious police to indiscriminately arrest Muslims on the streets of Pahang based on their own perception of cross-dressing, for such an offence, held as equal to other offences such as khalwat (close proximity), consuming alcohol and not fasting during Ramadan, the focus seems to be on how effectively it can be enforced, instead of the purpose it serves or the implications it has on a minority group.

Women’s Aid Organisation executive director Ivy Josiah expressed her doubts about the enforcement and purpose of the cross-dressing law.
“Modern attire is eclectic in nature and many women these days wear trousers and sport short hair. How do we even define what cross-dressing means? [...] There is also the question as to why we are focusing on behaviour that is basically harmless. Cross-dressing is not about hurting other people or taking property from anyone. It’s a personal choice.”
Another issue is that the religious authorities seem to want to calm any backlash with the reassurance that these laws only apply to Muslims. However, we have seen in previous incidents that the conflation of the ethnic grouping Malays with Islam, in Malaysian law, has resulted in the restriction of the freedom of expression and religion for certain people in Malaysia.

In response to NGOs, activists and even syariah lawyers who call this law a violation of basic human rights, the mufti gives his own dose of logic:
“We have to understand. Mankind with God’s laws, Allah knows better. If we say that people are better than God, that’s shirk. Our Prophet said that Allah curses men that resemble women and women that resemble men, we have to agree. If we don’t, this means we don’t believe in God, don’t believe in Allah’s laws.” [translated from Malay]
In the end, what will be the outcome of such a law, with the resources needed to enforce it being better off allocated to the needy, according to a syariah lawyer. Thilaga Sulathireh of the NGO Justice for Sisters, concludes that it will only reinforce “stigma, discrimination and violence towards the transgender community and gender non-conforming individuals“, especially by placing them in opposition to Islam.
“The transgender community has suffered violence in the past due to state prosecution. Instead of prosecuting them, it is the state’s duty to protect and promote the rights of all, regardless of one’s gender identity and expression. When the stance of the government is that individuals who ‘cross dress’ are criminals, this oppression will shut down access to their other rights – for example, recognition of gender which directly affects their access to healthcare and employment.”
It is extremely disheartening to see so many state resources being put towards the prosecution of an already marginalised group, using Islam as a reason for such oppression. Despite this, I hope that people will continue to speak truth to power against such authorities who claim to speak in the name of God.

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