Rights of Trans Women
by Zainah Anwar
Based on witness testimonies by Paddy (pseudonym) and Tharani Kutty
1. Background
1.1 Historically, there was a relatively high level of tolerance for gender and sexual diversity in South East Asia, Malaysia included. From the Bissu gender diverse ritual specialists who led sacred ceremonies in South Sulawesi to the sida-sida who safeguarded the spiritual powers of Malay rulers, evidence shows that gender pluralism existed in the past, and the important ritualistic roles and ceremonial positions played by gender-diverse people (Peletz, 2006).
1.2 The arrival of Islam did not substantially alter these arrangements, as this initially coexisted alongside customary practices (Watson Andaya, 2006). Up to the late 1960s, Malay society could still be said to be tolerant of transgender women — commonly known as mak nyah — as most would have encountered at least one transgender woman in their village, who almost always would play the important mak andam (bridal makeup artist) role at weddings.
1.3 British rule introduced a moral order that ignored local realities, informed instead by Victorian values steeped in racial, class, sexual and gender stereotypes (Gupta, 2008). With this, the colonial administration instituted the earliest codified laws in Malaya, against what it deemed as transgressive sexual and gender behaviours; e.g. section 377 of the Penal Code that criminalised the act of sodomy, and section 21 of the Minor Offences Act, which initially dealt with “riotous, disorderly, or indecent behaviour” before being amended to also punish those found guilty of “persistently soliciting for immoral purposes” in public. Up to the late 1990s, the latter was the main legislation used against trans women and others for so-called ‘crossdressing’.
1.4 From the late 1990s, these ‘secular’ laws were steadily overshadowed by the assertion of Syariah regulations (tan, 2012). The passage of Syariah Criminal Offences (SCO) legislation across all states from 1985 to 2002, turned all manner of perceived sins into crimes against the state. Included in these laws is a provision that prohibits the act of a male person publicly dressing and posing as a woman.[1] In 10 states, the law also says that a crime is committed when this is done “for immoral purposes”. The maximum penalty is a RM5,000 fine/one year in jail/both.
1.5 For the transgender community here, in particular, Malay-Muslim trans women, the increasing usage of this law — together with greater politicisation of ethnicity and religion that has fuelled greater bigotry, stigmatisation and intolerance of those with non-binary genders and sexualities — has meant growing scrutiny by the religious (Islamic) authorities, and a rising number of violations against them.
1.6 This is the context for the testimonies of both Paddy (pseudonym), a 28-year-old transgender woman who has been arrested and penalised on multiple occasions for wearing women’s clothes, and Tharani Kutty, a hospital cleaner targeted for her active union involvement by discriminating against her transgender identity.
2. Findings
2.1 Issues of concern
2.1.1 Treatment during arbitrary arrest/detention
Under the SCO regulations, Paddy was detained by the religious authorities on a number of occasions. The first time in 2009, she was fined RM700. The same year, she was abused and beaten after being arrested again, and then detained overnight in the religious department building where she was groped (diraba) and mocked by the authorities. She was groped once more by another religious officer — on the pretence of checking if she wore a bra — after being detained for a third time in 2010. This was in the van transporting her to the religious department. Paddy’s case is not unique. Many others like her are often arbitrarily arrested in public places (buying food, discos or clubs, travelling) or at private functions (charity events, beauty pageants) or homes. Besides high levels of sexual harassment and violence, trans women experience extortion in the hands of these state actors.
2.1.2 Public humiliation in court
Paddy was presented before the judge in handcuffs. The police officer tasked with reading out her identity card details deliberately announced the name assigned at birth loudly, which deeply embarrassed her and forced her to flee the waiting area. The media is complicit in amplifying this negativity with its sensationalist headlines and stories. Their role during arrests and raids has caused humiliation for those targeted, and in some cases, jeopardised their employment (HRW, 2014).
2.1.3 Inadequate legal support services
There are not many Syariah lawyers who are willing or able to take on cases like Paddy’s. When she approached the state Legal Aid bureau for help — this is the government body that is meant to provide free legal aid services for those in need — she was advised to plead guilty (“Mengaku salah je, senang" [Just plead guilty, easy]). They seemed to view the case as too trivial.
2.1.4 Harassment of a human rights defender
When Tharani first joined her workplace as a cleaner three years ago, there was no issue with her being a trans woman. She was given a women’s uniform and nothing was said about her appearance. This changed after she got involved as a leader in the hospital cleaners’ union, and started asserting her rights. Her supervisor forced her to cut her hair, remove her earrings and necklace, and told her that, “men should look like men”. The situation worsened after a new company took over. Made to wear a male uniform, her supervisor bullied her and did nothing when she complained that some staff had repeatedly behaved in sexually inappropriate ways. Throughout, Tharani was threatened that she would lose her job because of her union activities.
2.1.5 Discrimination in relation to employment
The precarity of Tharani’s employment is typical of the experience of other trans women, provided they make it past the interview stage. Many are denied job opportunities due to preconceived notions about their gender identity or expression. Like Tharani, those who manage to get employed are forced to dress according to gender binaries. Some, especially those in government jobs, find it ‘easier’ to comply with such misgendering to avoid negative attention including sexual harassment, name-calling, taunting, rumour-mongering, and being asked intrusive questions by their colleagues (SUHAKAM, 2019).
2.1.6 Marginalised in COVID-19 relief efforts
During the pandemic, the transgender community, especially those in sex work, was hard hit by the lockdowns imposed. Worse, those like Paddy received little relief assistance. For instance, the COVID-19 food aid programme did not reach her. Despite qualifying for the RM500 BPN handout, she had no direct access to this since her phone was broken (she only succeeded after someone helped her). In her case too, Baitulmal did not provide assistance. Estranged from her family since 2009, Paddy eventually reached out and borrowed money from her sister.
2.1.7 Perpetration of hate crimes with impunity
In her testimony, Paddy surfaced how she observed more anti-LGBT sentiments and hate crimes against the transgender community since the 2014 court case. One friend was so severely beaten by a group of men that she needed to be hospitalised. Rather than take action against the perpetrators, her friend was advised not to press charges. According to the advocate statement by Nisha Ayub, such occurrences are common and the community lives in fear of being attacked and assaulted.
2.2 Rights violated and standards not adhered to
2.2.1 In seemingly criminalising the very existence of transgender women, numerous rights are violated including their constitutional right to equality and non-discrimination (articles 8(1) and 8(2));[2] right to live with dignity and be free from torture and other cruel, inhuman or degrading treatment or punishment; freedom from fear; freedom of movement (article 9(2)), expression and association (article 10(2)); as well as the right to access to justice, bodily autonomy, health, work, livelihood, and not least, the foundational right to life and personal liberty as guaranteed by the Federal Constitution (article 5).
2.2.2 In terms of international law, the cases of Paddy and Tharani reveal how Malaysia has not met the standards of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[3] These include:
• The obligation to “eliminate prejudices” arising from gender stereotypes (article 5)
• Right to association in relation with public and political life (article 7(b))
• Right to work (e.g. have job opportunities, health and safety protection) (article 11)
The convention’s framework on eliminating all forms of discrimination against women has allowed the CEDAW Committee to widen its scope to include issues not explicitly named in the treaty like gender-based violence and rights of trans women.
2.2.3 Indeed, although none of the core United Nations (UN) international human rights treaties explicitly mention Sexual Orientation, Gender Identity and Expression and Sex Characteristics (SOGIESC) as grounds for protection against discrimination,[4] the pronouncements (concluding observations and general recommendations) of treaty bodies — including the CEDAW Committee — have clearly established that these are prohibited grounds of discrimination under international law, and how States parties are obliged to remedy this (OHCHR, 2019).
2.2.4 The CEDAW, CRC and CRPD committees, which address discrimination against specific groups, deal with gender identity and expression (along with sexual orientation) in terms of the intersectional discrimination that women, children and people with disabilities experience in this regard.
2.2.5 All three have issued General Recommendations (GRs) that refer to the ‘inextricable’ links between the discrimination against ‘women’, ‘children’ and ‘persons with disability’, and ‘other factors’, including gender identity, that can result in them experiencing multiple and compounded forms of discrimination.[5] In its GR 35 (2017) on ‘Gender-Based Violence’, the CEDAW Committee also recommended States to repeal “all legal provisions that are discriminatory against women’ including those that criminalise being lesbian, bisexual and transgender.
2.2.6 Apart from treaty bodies, the rights of LGBTI+ persons are amply addressed under the UN Special Procedures (e.g. Special Rapporteurs, Independent Experts, Working Groups). A 2021 report by the Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity reaffirms how gender identity and expression are protected under international human rights law, via the recognition of gender as a social construct.[6]
2.2.7 In 2006, a group of international rights experts produced the Yogyakarta Principles, a universal guide to human rights in relation to sexual orientation and gender identity. While not legally binding, this document can guide States, national human rights institutions, as well as private actors like the media and non-governmental organisations (NGOs), on the application of international law to violations against LGBTI+ persons.
2.3 Failure of duty bearers (state)[7]
a. Protecting transgender women from (transphobic) violence
2.3.1 Transgender women are vulnerable to a range of acts of violence (physical, sexual, emotional, mental) by both state and non-state actors. The risk of arbitrary arrest and detention by state actors (religious authorities, police, other law enforcement bodies) is a daily reality, often accompanied by acts of violence and extortion. This compounds their experience of discrimination.
2.3.2 The fact that a State is the perpetrator of such violations shows that not only has it failed in its obligation to protect transgender women from violence, but the State is in reality actively responsible for this. Similarly, the manner in which private actors are free to abuse and assault transgender women with impunity points to the State’s complicity in such violence. The few times it has legally pursued perpetrators of hate crimes, the outcomes are unknown or unclear (Justice for Sisters, 2019).
2.3.3 Jurisprudence of the CEDAW Committee shows how States are obligated “to protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence” under article 2(d) of the Convention (Kirichenko and Nolan, 2020:52). The Malaysian government has failed to uphold this standard, at the same time contravened article 9(2) of the Federal Constitution on the freedom of movement.
b. Preventing torture and cruel, inhuman and degrading treatment or punishment
2.3.4 For standing up for labour rights,[8] Tharani was repeatedly intimidated and threatened with losing her job. Although other union leaders suffered the same fate, she was the only one harassed on the basis of her gender identity. Having caused her mental anguish, these actions can be deemed a form of torture under international human rights law. Instead, given that Tharani’s employer is ultimately a government-linked company, the government can be said to have failed in preventing torture, or worse, is guilty of actively facilitating this.
2.3.5 Paddy’s similarly distressing encounter with being further stigmatised and publicly humiliated when she was detained and when she appeared in court, amounts to the government failing to prevent her degrading treatment experience, either by not prohibiting this or not instituting measures to ensure it did not happen.
c. Respecting freedom of expression, peaceful assembly and association
2.3.6 The deliberate misgendering of Tharani (e.g. forcing her to wear a male uniform, cutting her hair, preventing her from wearing jewellery) and Paddy (e.g. deadnaming her in court, harassing her in the streets) shows the government’s failure to take measures to uphold their constitutional right to life (article 5) and freedom of expression (article 10(1)), and to “fully respect and legally recognise each person’s self-defined gender identity” as prescribed by the Yogyakarta Principles (Principle 3).
2.3.7 Similarly, by not taking adequate action against Tharani’s employer, Edgenta UEMS, to prevent its union-busting activities, the government has not protected freedom of association as stated under article 10(1) of the Federal Constitution. This is also contrary to the CEDAW Committee’s recommendation that the "State party undertake awareness-raising measures to eliminate discrimination and negative stereotypes against lesbian, bisexual, transgender and intersex women” (para 48).
d. Prohibiting and addressing discrimination
2.3.8 The accounts of Paddy and Tharani surfaced other experiences with discrimination — exclusion and bias — that many other transgender women share. This is despite the Federal Constitution providing for equality before the law, equal protection of the law, and non-discrimination on the basis of gender.
2.3.9 Both highlighted the challenges transgender women face in gaining work — it is not uncommon for them to ‘settle’ for whatever is available — for reasons noted earlier. Tharani’s fear of losing her job is compounded because of the difficulties in finding alternative employment. For Paddy, lockdowns around the COVID-19 pandemic exposed her vulnerability and inability to earn a living, and exacerbated her struggles with poverty. In both cases, the government did not act to protect their interests by ensuring that they had equal access to job opportunities regardless of their gender identity, as required under the CEDAW Convention.
2.3.10 Where the government could have alleviated the suffering of Paddy and those like her by including their needs when formulating its recovery response, the results of its efforts suggests that it did not. There appeared to be no attempt to consider how this would affect the lives and livelihoods of trans persons. Thus even though there were different relief measures available, these failed to support Paddy who already suffered from having fewer resources to deal with being unemployed.
2.3.11 There was no equality of protection before the law either, as Paddy’s experience showed. Here her access to justice and to effective legal remedies was compromised by the lack of Syariah lawyers who were willing and able to take on her case, and the trivialisation of her case by the government Legal Aid Centre.
e. Repealing discriminatory laws and policies
2.3.12 In its review of Malaysia’s CEDAW implementation in 2018, the CEDAW Committee raised concerns about the legal provisions regulating so-called ‘crossdressing’ and how such criminalisation perpetuated stigma and violated the rights of transgender persons, resulting in their compounded vulnerability to incidents of harassment, attacks and discrimination.
2.3.13 Similarly, in his report on Malaysia, the UN Special Rapporteur on Health noted how the criminalisation of gender identity and expression “reinforced negative societal attitudes and has led to significant barriers”, e.g. in access to health care. He also highlighted how this has facilitated their public humiliation in the media.[9]
2.3.14 In 2014, the Court of Appeal found section 66 of the SCO Enactment of Negeri Sembilan inconsistent with several constitutional provisions — the appellants’ right to live with dignity (article 5), equal protection (articles 8(1) and 8(2)), freedom of movement (article 9(2)), and freedom of expression (article 10(1)).
2.3.15 Specifically, it caused them to “live in uncertainty, misery and indignity”, and instead of enjoying “such rights as livelihood and the quality of life”, as per article 5, they would be deprived since they could never express themselves or their gender identity and go out to work without the risk of being arrested and punished under section 66. Regrettably, this landmark ruling was later overturned by the Federal Court (Suganthi, 2015).
2.3.16 The fact that the Malaysian government has allowed these laws to remain, and also strengthened them over time, is symptomatic of a failure to recognise the rights of transgender persons to live discrimination-free lives.
2.4 Victim impact
2.4.1 The government’s failure to address discrimination on the basis of gender identity has had a profound impact on the transgender community in Malaysia. For instance, many live in constant fear of being arrested and/or violated by state and non-state actors alike. The fear of being jailed is palpable, as this is where the risk of being assaulted, degraded and being subjected to inhumane treatment, is highest (Justice for Sisters , 2021).
2.4.2 Being denied opportunities and subjected to multiple forms of discrimination has exacerbated their vulnerability to endemic poverty, while stigmatisation and criminalisation has intensified their poor mental health. Without adequate family support — often this is withdrawn due to shame and societal pressure — their feelings of isolation are magnified thus further jeopardising their wellbeing.
2.4.3 There is a heavy price to pay for being brave and seeking access to justice. Both Paddy — who wants to live a life free from discrimination, and Tharani — who strives to improve workers’ rights, have suffered under intense pressure that resulted in depression (Paddy), and severe stress and being suicidal (Tharani).
3. Recommendations
3.1 Protect transgender persons from (transphobic) violence
(a) Immediately prohibit the arbitrary arrest and detention of transgender persons;
(b) Exercise due diligence to investigate and prosecute those guilty of violence and hate crimes against transgender persons, including meting out penalties commensurate with the gravity of the offence;
(c) Introduce a compulsory training programme for all law enforcement officials to prevent stigmatisation and discrimination against transgender persons, and ensure that officials not only respond accordingly to reports of gender-based violence and transphobic crimes but also refrain from perpetrating such violence themselves.
3.2 Prevent torture and cruel, inhuman and degrading treatment or punishment
(a) Adopt a zero-tolerance policy and immediately prohibit acts of torture, including mental and emotional torture, and other forms of ill-treatment towards transgender persons in detention, places of employment, and in public or private spaces;
(b) Investigate and bring to justice, perpetrators of such violations;
(c) Introduce a compulsory training programme for all law enforcers to sensitise them on treating trans women and LGBTI+ persons with dignity and compassion.
3.3 Respect freedom of expression, peaceful assembly and association
(a) Take immediate action to halt union-busting activities by Edgenta UEMS, and to sanction those responsible for violations against transgender employees;
(b) Institute a legal recognition policy that allows transgender persons to change the gender markers on identity documents to match their gender identity.
3.4 Prohibit and address discrimination
(a) Establish effective redress and support mechanisms for transgender victims of discrimination, including legal support, psychological services, and financial aid by ensuring that their voices are considered in policy and programme formulation;
(b) Enact measures to ensure protection from workplace discrimination (e.g. giving equal access to job opportunities, prohibiting the misgendering of transgender persons, and prohibiting unjustified dismissals based on gender identity);
(c) Where measures already exist, ensure that these are enforced to provide transgender victims of discrimination with effective recourse to justice;
(d) Implement the recommendations made by SUHAKAM (National Human Rights Commission of Malaysia) in its report ‘Study on Discrimination against Transgender Persons Based in Kuala Lumpur and Selangor’, especially the call to integrate human rights issues into the education curriculum starting at the primary level;
(e) Conduct awareness-raising programmes to eliminate discrimination and foster a culture of equality and diversity that encompasses respect for transgender persons;
(f) The Ministry of Communications and media companies to sensitise their employees on transgender issues and reporting standards, as well as gender and human rights, in order to affirm trans people’s dignity, ensure higher media standards, and avoid contributing to adverse impacts of discriminatory reporting, including loss of employment of transgender persons.
3.5 Repeal/revoke discriminatory laws and policies
Repeal all laws that criminalise transgender and LGBTI+ persons on the basis of actual and/or perceived sexual orientation, gender identity and gender expression, as well as policies that discriminate against them.
Endnotes
[1] In four states, the same prohibition exists for women who ‘crossdress’ as men.
[2] Article 8(1) states “All persons are equal before the law and entitled to the equal protection of the law,” and article 8(2) prohibits discrimination on various grounds including gender.
[3] There are nine core UN human rights treaties. Of the three that Malaysia has ratified — CEDAW, and the Convention on the Rights of the Child (CRC) in 1995; and the Convention on the Rights of Per-sons with Disabilities (CRPD) in 2010 — only the standards in CEDAW are relevant here.
[4] Instead, treaty bodies like the Committee on Economic, Social and Cultural Rights (CESCR) utilise the ‘other status’ criteria in the non-discrimination article of the ICESCR to prohibit discrimination on the basis of gender identity and gender expression. This Committee has also issued several General Comments (GCs) that elaborate on this (e.g. GC 20 on ‘Non-discrimination’; GC 23 on ‘Conditions of Work’; and GC 22 on ‘Sexual and Reproductive Health’).
[5] E.g. the CEDAW Committee’s GR 27 (2010) ‘Older Women’; GR 28 (2010) ‘Core Obligations of States Parties under Article 2’; GR 33 (2015) ‘Women’s Access to Justice’; GR 35 (2017) ‘Gender-Based Violence’; and the CRPD Committee’s GC 3 (2016) ‘Women and Girls with Disabilities’.
[6] This describes gender as “a sociocultural construct that ascribes certain roles, behaviours, forms of expression, activities and attributes determined to be appropriate according to the meaning given to biological sex characteristics. Under this definition, gender and sex do not substitute each other, and gender identity and gender expression are inextricably linked to them as practices of concern in anti-discrimination analysis” (para 79, A/HRC/47/27).
[7] To assess the state’s performance as a duty-bearer of the rights of transgender women, this section uses five core state obligations the OHCHR has identified to forward rights of LGBTI+ persons.
[8] Separately, she had also sued Edgenta UEMS, her employer, for refusing to pay her overtime wages (Samanther and Tan, 2021).
[9] The Special Rapporteur on Human Rights Defenders’ observation about the role of the media in “reproducing and reinforcing patterns of inequality and marginalization” also applies to the transgender community in Malaysia (OHCHR, 2019: 49).
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