Transgender women fear crackdown after court ruling, mulling legal options

Three transwomen are still weighing their options following the Federal Court's refusal to declare that a provision in the Negri Sembilan Islamic criminal enactment violated their fundamental rights. Their spokesperson S. Thilaga of Justice for Sisters said they were still in discussion with their lawyers on the next move, and were also worried for their safety amid threats of a growing crackdown on transgender people by the authorities following the court ruling. "We are weighing the options, including strategies to check harrassment by state religious enforcement authorities," she told The Malaysian Insider. The three, Muhamad Juzaili Mohd Khamis, Shukur Jani and Wan Fairol Wan Ismail, could either file a review of the Federal Court ruling on grounds of an abuse of court process or that grave injustice was caused. Alternatively, they could file a fresh application straight to the apex court to declare that Section 66 of the state Islamic enactment had breached their basic freedoms in the Federal Constitution. Thilaga said the authorities in Negeri Sembilan, Federal Territory of Kuala Lumpur and Penang had intensified their warnings against transgenders following the apex court ruling on October 8. "Their security is of concern because the authorities, especially in Negeri Sembilan, have issued warnings that they will come down hard on Muslim transgenders seen in public places," she said. A five-man Federal Court bench chaired by Tan Sri Raus Sharif recently held that the Court of Appeal had no jurisdiction to declare section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 as unconstitutional because the transgenders had used the wrong legal procedure to start their action. They had commenced their action by way of judicial review in the High Court in Seremban in 2011.   Raus Sharif, who delivered the unanimous judgment, said the trio should have gone straight to the Federal Court as they were challenging the competency of the state legislature to make laws. However, lawyers for the transgenders have argued that challenges on the breach of fundamental rights could begin in the High Court, whereas challenge on the competency of state legislature to make laws that went against the Federal Constitution must commence in the Federal Court. In November last year, judge Datuk Mohd Hishamudin Mohd Yunus, who led a three-man Court of Appeal ‎bench, declared the section was void as it violated the constitutional right of freedom of expression, movement and the right to live in dignity and equality. The Negri Sembilan government had appealed to the Federal Court,  but had had raised a preliminary objection that the three had used the wrong mode to start their action.]]>