Inside The Fight Against Transphobia In Malaysia
By Fehmida Zakeer
Nisha Ayub was 21 when she first felt the long arm of the law that would alter the very direction of her life. “My friends and I were walking, making plans for dinner, when suddenly a van pulled up and some officers stepped out. At first, I didn’t understand what was happening. We thought it was the police and obeyed the command to get into their vehicle. Then I realized that it was not the police and I was actually relieved. I told my friends not to worry.”
“I did not know what our offense was, but since it was not the police, I did not think it was much of an issue. I was young, naive, and unaware of the law. I certainly did not know that cross-dressing was unlawful.”
The officers, as it turned out, were from the religious police.
Sulastri Ariffin, a vocal advocate for trans issues in Malaysia, offers insight into this religious arm of Malaysian law, surfacing nuanced complications around the legality of these arrests. “In Malaysia, we have two laws, civil and Sharia. Religious police or religious enforcement is part of the government machinery and they have the authority to arrest. They are required to act along with the police; however, they always abuse their power by arresting without the presence of police officers.”
Nisha’s family was also incredulous that she was taken in just because she was dressed as a woman; they believed she must have been arrested for another offense. Aston Paiva, a lawyer who has represented many cases on behalf of the trans community, explains that Nisha’s arrest may be infuriating, but it was decidedly legal:
“Malaysia is a Federation of 13 States. States are empowered to enact laws that codify offenses against the precepts of Islam. One such precept is that a male person is not to dress like a female person and vice versa. This has been enacted as secular law under which Nisha was arrested. Under the same legal framework, the States have also created a public office, i.e. the Chief Enforcement Office of Islamic Affairs. He is empowered to arrest anyone committing a precept offense. There was therefore a legal basis for Nisha’s arrest.”
According to the Human Rights World Report 2015, discrimination against lesbian, gay, bisexual, and transgender (LGBT) people is pervasive in Malaysia. An earlier report issued by the Human Rights Watch in September 2014 entitled, “I’m Scared to be a Woman: Human Rights Abuses against Transgender People in Malaysia,” states how transgender persons face arbitrary arrest, physical and sexual assault, imprisonment, discriminatory denial of health care and employment, and other abuses.
Nisha Ayub had to spend three months in prison — in the men’s section — because the judge wanted her to repent and come back as a “real” Muslim man. On October 24, 2014, Nisha took to Facebook to write a harrowing recount of her “crime” and the time she spent in jail, tormented by ongoing ridicule and sexual assault [sic]:
“I was crying and asking for forgiveness . . . they pull me back and the last person that hug me was my mum before I was drag back to the black lorry. I was crying the whole journey in the lorry thinking of what is going to happen in future ? Im going to be an inmate, im going to loose my job , who is going to take care of my mum, who is going to pay the bills for 3 months, who will give me a job after this? It was a 2 hours journey drive where I was losing my mind. I still remember when we arrived at the Kajang prison. I was extremely scared by just looking at the steel closed gate that reminds me of Jurassic Park. The gate open and the horrific experience begin . . . I was sitting in the middle where I can see all those man was staring at me . . . The next thing my name was called , and I walk in the room. They gave me my number and shouted “ Ada pondan baru “ “ We have a new tranny “ and laughed . . .
I was than brought to the clinic where I was examine for drugs which I was so confuse bcs I told them I don’t take any drugs. The guy actually force me to strip down naked in front of other inmates and some warden. I was using both my hands to cover both my private parts . . . than the most painful part happened where my dignity was taken away from me , he did an anal drug examination to me , he ask me dont worry . . . its not pain bcs he just use a finger . . . they were all laughing and the I rmbr the guy telling me, don’t worry . . . we are all man . . . so what to be shy. I was silent but my heart and mind is such in pain I can’t bare anymore., I wanted to die . . . I can’t take this humiliation anymore. It was as if my soul was not in my body anymore. The only thing that is alive was my tears . . . I was crying the whole way until I passed through the first protocol . I taught it was over but I was wrong . . .”
After her release, Nisha vowed to learn about her rights and the law, and entered the forefront of the fight against discriminatory laws targeted toward transgender people in Malaysia.
Nisha’s experience — while humiliating and traumatizing — served as a powerful catalyst for her to help others; her advocacy work on behalf of her community has been celebrated and recognized for its potent bravery and success.
In 2015, Human Rights Watch honored Nisha Ayub with the Alison Des Forges Award for Extraordinary Activism, and in March 2016, the U.S. State Department conferred her the International Woman of Courage Award, making her the first trans woman to win the prestigious title.
Later in San Diego, she was conferred the Jose Julio Sarria Civil Rights Award by the San Diego City commissioner Nicole Murray Ramirez. The city also honored her by declaring her birthday, April 5, as Nisha Ayub day. Nisha and her friends came together to form Justice for Sisters soon after her release from prison. Their aim was to address legal issues faced by trans women and women from marginalized communities.
Nisha says her idea for the organization is to empower women with knowledge about their legal rights and to help them seek legal redressal when subjected to oppression and abuse. “Victims are most often fearful of approaching the police; we guide them on the ways they can seek help when subjected to abuse or violence.”
She first thought about such a forum when three trans women approached her for help in fighting a case challenging the law that criminalizes gender expression.
“The women would be jailed if we did not do anything. My friends and I decided to host programs to raise funds so that we could hire a lawyer to fight the case.” They lost that first case, but four years later, Nisha and her supporters were ecstatic when the Court of Appeals ruled that it was unconstitutional to penalize people on the basis of their dressing.
“It was a landmark judgement that brought much cheer to all of us,” Ayub says. “But even though we won with a very strong judgement, it was challenged again the next year in the Federal Court. The court overturned the ruling on a technical issue. Now we are back to square one, but the fight will go on.”
Lawyer Aston Paiva adds, “The Court of Appeal found the law criminalizing gender expression to be inconsistent with the constitutional rights guaranteed by the Malaysian constitution, i.e. dignity, livelihood, movement, equality, non-discrimination, and freedom of expression. It was a landmark decision. The case was subsequently set aside by the Federal Court on a contentious technicality. The issue therefore still remains unresolved.”
Citing the latest numbers, Justice for Sisters reports, “Arbitrary arrests of trans women has not stopped and is ongoing. Between January and May 2016, at least 63 women have been arrested for simply being themselves.”
In addition to Justice for Sisters, Nisha also founded the Seed Foundation, which provides services to members of marginalized communities in Kuala Lumpur. “Through this foundation, we help marginalized groups such as transgender people, female sex workers, drug users, people living with HIV/AIDS, and the homeless, through counseling and referrals to hospitals, social welfare, and shelters.”
As many as 20 to 30 people walk in every day to their office located in Chow Kit in Kuala Lumpur; from the day they opened their doors in 2007, they have helped close to 6,000 people.
“[We help] HIV/AIDS patients who have nowhere to go to,” explains Nisha. “Trans women subjected to abuse because of their identity, the homeless and the helpless who have nobody to turn to — they drop into our office to seek help or to seek refuge.” Of all the complaints they receive, though, Nisha says the most heartrending ones are most often from Muslim trans women.
When I ask her if there has been a change in people’s perceptions from the time she started her advocacy she says, “There is more awareness, especially among the younger generation. Change happens when people start talking and yes, there is more talk now about equality — it is a slow change, but at least there is a movement toward change.”
Nisha says that in her work she has come across many roadblocks, obstacles, and backlashes. In spite of it all, the ability to stay positive is her greatest strength. “You have got to believe in yourself, you have got to believe that things are going to get better and go forward.” The support and love of the people who contact her and thank her for the work she is doing heartens her. “I know then that I am doing something right.”
Lead image courtesy of Nisha Ayub