In no man's land

Monday, October 2, 2000
Issues

In no man's land
By Ong Ju Lynn

IN 1993, a male transsexual lodged a police report that he was raped by
a police inspector, a senior Immigration officer and an employment
agent.

None of the three were charged with rape. The Attorney-General's
Chambers concluded that the victim was legally a male, and as such
nullifies the accusation of rape.

Under the Penal Code, rape is defined as penetration of the male sexual
organ into the female sexual organ, hence rape can only happen between
man and woman. The male transsexual in this case may have undergone
sexual reassignment surgery and possesses a female sexual organ, but
under the law, she is not a woman thus she is not protected by laws on
rape.

And if a post-operative transsexual willingly has sex with a man, she
will be breaking the law herself. In the first place, she is still a man
in the eyes of the law, and the Penal Code states that a sex act between
two men is "against the order of nature'' and is therefore an offence.

"As far as the law is concerned, the transsexual is in no man's land,''
says lawyer Nora Murat of the All Women's Action Society (Awam), a
non-governmental organisation.

In civil law, there is no mention of transsexuals as an entity.
Previously, non-Muslim transsexuals and transvestites were frequently
arrested by the police and charged under Section 21 of the Minor
Offences Act 1955.

"There have been many cases of transsexuals hauled in despite them just
sleeping in their rooms or having a meal in a restaurant,'' says Leena
Ghosh of the Legal Aid Centre in Kuala Lumpur.

"Cross-dressing is not a crime per se in civil law. Previously,
transsexuals just pleaded guilty and paid the fine. Now, we've had a few
Mak Nyahs claiming trial, which puts the onus on the police to prove
that the accused were involved in 'indecent behaviour' which is an
ingredient of the charge, and not cross-dressing,'' explains Ghosh.

Following dialogues between Pink Triangle, the Legal Aid Centre and the
police, harassment of Mak Nyahs has decreased.

Islamic law, however, specifically prohibits cross-dressing. Muslim
transsexuals can be charged with cross-dressing under state Syariah
laws.

"Under the Federal Territory Syariah Offences Act 1997 relating to
cross-dressing, there is a provision that allows for any convicted
transsexual to undergo rehabilitation,'' says Ghosh.

"Section 7 of this Act can be widely interpreted. Anyone insulting and
bringing into contempt the religion through writing or any visible
representation can be charged under this section. It may be used to
prosecute anyone who has done the sex change surgery.

"The question is, can the transsexual's feminine appearance be
considered 'visible representation' that is a transgression against
religion?

"So far there has been no proper trial involving a case of this nature.
If there is, it would set a precedent that could seriously affect the
fate of transsexual Muslims in this country.''