DECEMBER 6 ― LGBTQ rights have become political talking points, limiting harmless communities from freedom of expression and gender equality.
Have you been in a state of dilemma to choose that perfect outfit to start the day? Have you ever walked amidst a crowd and been completely awed by someone’s sense of fashion and high-end clothing? Or were you victims of oppression whereby dressing in the manner that satisfied yourself was unaffordable, not only due to financial constraints but as the consequence of social expectations?
A general perception of sartorial matters often abhorred, relates to cross-dressing, a cultivation of wearing clothing inclined towards the opposite sex. Cross-dressers who adopt the dressing, appearance and behaviour of the opposite sex are misunderstood, ridiculed and maligned in certain cultures, being deemed inappropriate due to the strong ideation of dichotomous and uncompromising gender roles, primarily: “A man should never dress or look like a woman”.
During the 16th and 17th Century, Native American tribal cultures acknowledged cross-genders such as ‘men-women’ or ‘women-men’. In the 19th Century, those who cross-dressed were deemed homosexuals. Several contemporary historians claimed that women cross-dressed to be given opportunities in traditional male occupations as well as to escape narrow gender ideations.
In the 21st Century, heavy stigmatisation towards cross-dressers remains as catalysts for gender discrimination, restricting the right to freedom of expression. On the night of 29th October 2022, the Federal Territories Islamic Religious Department (JAWI) conducted arrests upon 20 attendees from a private Halloween event at REXKL for alleged indecency. Those detained were among cross-dressers and alleged inciters whereby the event in general was attended primarily by the LGBTQ community. A detainee and activist, Numan Afifi described the raid as “traumatising and harrowing” lead by approximately 40 religious officials accompanied by the police.
On January 6, 2021, a video of a transgender, Nur Sajat who had been detained by the Selangor Islamic Religious Department (JAIS) went viral in which she was seen handcuffed and was under investigation for allegedly insulting Islam. Her arrest was on the basis of contempt against Islam when she wore a baju kurung at her own private religious ceremony. Subsequently, she was sent into exile and later sought refuge in Australia.
Stipulated under Section 10(a) of the Syariah Criminal Offences (Selangor) Enactment 1995, an individual who has made representations in the form of words or any form that is visible or capable of being visible of which such representation insults or brings into contempt the religion of Islam is punishable by a fine of not more than five thousand ringgit or imprisonment not more than three years or both. In accordance with Section 30 of the said Enactment 1995, a male who wears the attire or poses as a woman in public places for immoral purposes shall be guilty of an offence and convicted to a fine not exceeding one thousand ringgit or imprisonment for no longer than six months or both.
Despite Article 8(2) of the Federal Constitution explicitly outlining protection against gender-based discrimination in Malaysia, a lacuna exists as to the protection for the LGBTQ community resulting in gender-based violence, stigma, discrimination, exclusion or even bullying. Transgenders especially, are forced by society norms to stick to their gender assigned at birth and are often ridiculed when expressing themselves for whom they identify as.
Currently, unisex clothing is a norm whereas luxury clothing brand models are often seen donning clothing with no gender boundaries. In several photoshoots by Dior, a luxury brand loved by Malaysians, male models were seen posing in skirts whereas female models in suits. Unfortunately, cross-dressing, especially by the LGBTQ community is yet heavily stigmatised as indecent and criminalised under religious norms, perceived to be against morality. The question here is, does cross-dressing pass the extremities of morality and by which extent?
Surprisingly, a woman dressing in a man’s formal attire, a plain t-shit and baggy pants or in unisex clothing rarely gets addressed as an issue but when a man wears feminine clothing, authorities perceive it as indecency. Struggling between such stigma, transgenders are oppressed and body shamed in the sheer daylight of their integral rights of self-identity to truly be comfortable in their own skin.
Under freedom of expression, dictating people on what should and should not be worn opposes fundamental rights of an individual. Bodily autonomy or ‘My body is for me; my body is my own’ provides that your body belongs to you. Thus, it is only fair if gender stereotypes on clothes are broken, as everyone, including the LGBTQ community, have the right towards their respective bodies given that cross-dressing does not harm third parties ― gender equality.
In regards to the jurisprudential plethora, HLA Hart, an English Legal Philosopher pressed on legal positivism whereby “Laws are rules made by humans and that there is no inherent or necessary connection between law and morality.” Two circumstances of special justification were underlined as to moral enforcement, namely, preventing harm by means of instilling fear of punishments and avoiding immoral actions without apprehending or harming another.
In Hart’s paradigm, there is an absence of moral obligation to obey the law which contradicts John Austin who quoted that every society is subjected to a supreme authority. In line with Hart, cross-dressing should be permitted in a reasonable manner providing that such attires are decent as to what a common man or woman would be allowed so. Marginalised oppression and hate crimes against cross-dressers from the transgender community should be avoided to protect individual rights.
The misuse of such rights as to security by sharing public toilets are emerging concerns. However, in the author’s opinion cross-dressers identifying themselves as transgenders should be given the discretion to use the bathroom based on their personal and private decision given that this is a subject of human rights, equality and freedom. Roscoe Pound places gravity on the right of life under sociological jurisprudence whereby if private, public and social interests are equal by scrutinising and balancing them from the stance of an individual, State and the society, harmony can be established. Thus, procedures to identify individuals as transgenders who cross-dress through psychiatric and medical evidence should be administered given that LGBTQ is considered immoral and illegal under the legal arm of the State.
However, the possibility of equal rights towards the LGBTQ community in general in the near future seems bleak due to religious constrains that are difficult to shy away from. In Malaysia, a dual justice system under Article 121(1A) of the Federal Constitution governs the population under civil law for non-Muslims and shariah law for Muslims subject to state laws. Thus, constantly putting the Muslim LGBTQ community under threat and hiding.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
