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Men With Gender Identity Disorder Condition Are Of Unsound Mind, Appeals Court Heard
The Negeri Sembilan state legal adviser, Iskandar Ali Dewa submitted that individuals with the GID condition were contributing to their mental disorder that they were in.
He said the transgender was exacerbating their condition instead of curing them 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 chairing the three-member panel to which Iskandar said 'Yes they have mental disorder', causing several transgender supporters seated in the public gallery to loudly exclaim "oh my God".
After a moment of silence, Justice 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 argued that their condition could be treated adding that it did not mean if they had a psychological condition, they could not be subjected to the Syariah law, adding that if a person suffered from the condition, it did not mean that the law was unconstitutional.
"But they would get arrested everyday (if they were dressed as a woman in public)," said Justice Hishamudin.
Iskandar replied: "A simple solution is that they can dress as a man which was by right and biologically they are supposed to dress in."
"Are you saying that they should be forced to dress as a man in public?" asked Justice Hishamudin. Iskandar responded by saying "Yes, that is their right as a man."
Another judge Datuk Aziah Ali presiding on the panel interjected saying that "I thought they were born like that. It is not something that they choose."
Iskandar said transgender could change their mental state but Justice Hishamudin told him that he did not have a medical report to support his claim.
The counsel was submitting in the appeal brought by three Muslim bridal make-up artists who were challenging a Negeri Sembilan Syariah criminal law which prosecutes Muslim transgender who dresses like a woman.
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 which criminalises any man who dresses or posed 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 GID medical condition to which they have the tendency to cross-dress as they felt the essence of their identity to be that of a woman.
The High Court in Seremban after hearing the trio's judicial review, rejected their request to declare unconstitutional the Enactment, ruling that because they were Muslims and were born male, they must adhere to the law as part of Islamic teaching.
Iskandar 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 who dresses as a woman and not for a woman who dresses as a man?"
Iskandar responded: "Because the law did not provide for that."
The counsel said Section 66 of the Enactment was valid and constitutional and that the appellants who were Muslims were subjected to the jurisdiction of the Syariah Court.
Senior Federal Counsel Suzana Atan who acted for the Attorney-General's Chambers as amicus curae submitted that Islam does not acknowledge GID, adding that in Islam it was an offence for a man to dress as a woman.
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 other judge presiding on the panel is Justice Datuk Lim Yee Lan.
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