PUTRAJAYA, July 18:
Men afflicted with gender identity disorder (GID) condition are of unsound mind, the Court of Appeal here heard today.
Negeri Sembilan state legal adviser Iskandar Ali Dewa submitted that individuals with GID were contributing to their mental disorder that they were in.
He said transgenders were exacerbating their condition by cross-dressing and undergoing hormone treatments.
“Are you saying those with GID are ‘akal tak sempurna‘ (of unsound mind)?” asked Justice Datuk Mohd Hishamudin Mohd Yunus, who is chairing the three-member panel.
In reply, Iskandar said: “Yes, they have a mental disorder”, causing several transgender supporters seated in the public gallery to loudly exclaim, “Oh, my God”.
After a moment of silence, Hishamudin said: “I am still trying to recover from your submission that they have a mental problem,” which subsequently drew laughter from the public gallery.
Iskandar also argued that their condition could be treated.
He added that this did not mean that if they had a psychological condition, they could not be subjected to the syariah law.
He said if a person suffered from the condition, it did not mean that the law was unconstitutional.
“But they will get arrested every day (if they are dressed as a woman in public),” said Hishamudin.
To which Iskandar replied: “A simple solution is that they should dress as a man, which is what they are supposed to dress as, biologically.
“Are you saying that they should be forced to dress as a man in public?” asked Hishamudin.
Iskandar responded: “Yes, that is their right as a man.”
Another panel judge, Datuk Aziah Ali, interjected, saying: “I thought they were born like that. It is not something that they chose.”
Iskandar said transgender people could change their mental state, but Hishamudin told him that he (Iskandar) did not have a medical report to support his claim.
Iskandar was submitting in the appeal brought by three Muslim bridal make-up artists who were challenging a Negeri Sembilan syariah criminal law. The law is applied to prosecute Muslim transgender persons who dress like women.
Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, and Wan Fairol Wan Ismail, 30, are appealing to the Court of Appeal against a High Court’s dismissal of their judicial review application to challenge the constitutionality of Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992.
The enactment criminalises any man who dresses or poses as a woman.
Iskandar was representing the Negeri Sembilan Islamic Affairs Department, its director, the state syariah enforcement chief and syarie prosecution chief, who were named as respondents.
The appellants sought to declare that Section 66 was unconstitutional or that section did not apply to people like them, who suffer from GID.
They had submitted a medical report from Hospital Kuala Lumpur certifying that they suffered from the GID medical condition. The condition, they claimed, led them to cross-dress as they felt the essence of their identity was that of a woman.
The High Court in Seremban, after hearing the trio’s judicial review, rejected their request to declare unconstitutional the enactment.
It ruled that because they were Muslims and were born male, they must adhere to the law as part of Islamic teaching.
Iskandar further submitted that Section 66 only applied to men, adding that it was not an offence for a female to dress as a man.
Justice Hishamudin then asked: “Why is it an offence for a man to dress as a woman and not for a woman who dresses as a man?”
Iskandar responded: “Because the law did not provide for that.”
Iskandar said Section 66 of the enactment was valid and constitutional and that the appellants, who were Muslims, were subject to the jurisdiction of the Syariah Court.
Senior Federal Counsel Suzana Atan, who acted for the Attorney-General’s Chambers asamicus curae(friend of the court), submitted that Islam did not acknowledge GID, adding it was an offence for a man to dress as a woman in Islam.
Justice Hishamudin, who said this was the first case of its kind in Malaysia, then fixed Nov 7 to deliver the court’s decision.
The third judge on the panel was Justice Datuk Lim Yee Lan.