Who are you? And why are you wearing those clothes?
Most Americans will never be challenged by such questions, except perhaps on Halloween. We are who we are, and we dress as we choose. It takes a stretch of imagination to arrive at a scenario where exercising the individual right to express ourselves through our clothing and our mannerisms is deemed a serious threat to society, or harmful to others, or immoral. Yet when a person’s “expression” settles into a sustained, coherent, and insistent statement about their identity that runs contrary to what the authorities have declared regarding that person’s identity, the law is called upon to resolve this. After all, identity is where personhood starts, so the law has a stake in getting this right.
But how does the law get it right? And is that enough? And what does sex have to do with it?
On the one hand, it seems peculiar that one should need to turn to the courts to substantiate one’s deepest held sense of identity. On the other hand, when that claim of identity is contested, and something important is at stake, then the courts have a job to do.
Many Americans feel that the courts have accomplished that duty, now that the battle for “LGBT rights” is popularly perceived (although incorrectly) to be largely over but for the mopping up of state and local laws that still need to be aligned with the Supreme Court’s ruling on same-sex marriage. Yet for the “T” part of LGBT the battle for identity recognition and fair treatment is only just beginning. A long journey lies ahead before transgender Americans across this country enjoy the fundamental civil courtesy of being respected as rational, dignified human beings with full and fair rights under law. It was only one year ago here in my state of Maryland that a law took effect to ban anti-transgender discrimination in employment, housing, and public accommodations, but across the nearby Potomac River in Virginia and in the majority of American states there are no such laws protecting transgender people from discrimination. In 33 of our 50 states, transgender people have a legal ordeal ahead before they begin to benefit from fair treatment as parents, renters, employees, and simply as citizens. We’ll get there, but we’ll have to resort to regular requests to our allies for support. Unlike gays and lesbians, transgender people are very few in number, and without the help of allies our cause will generate little attention. Along the way to legal reform, we’ll all need to make progress simultaneously in the much more difficult undertaking – informing the American public about the transgender phenomenon so that perverse stereotypes are destroyed, hearts softened, minds made more aware, and we are no longer seen as “abnormal” people who have made a “choice” to lead a perverse “lifestyle”. We’re just people determined to be authentic.
Authenticity is the goal of transgender persons around the world, but in many countries the quest to have one’s gender identity recognized is not only a struggle against discrimination but quickly becomes a fraught ordeal against the institutionalized overlap of state and religion. In general, secular laws are open to challenge based on reason and fairness, but when the laws are founded on or heavily influenced by theology the realistic prospect for a tiny minority of transgender activists to achieve justice is often an exercise in frustration. When such religious principles are held to be above scrutiny or any challenge that is based on science or reason, the struggle can become one of complete futility. And yes, there’s the question of sex. But I will return to that shortly…first I must cast my sights 9,525 miles away. In Malaysia, October 8th provided a graphic example not only of the sense of futility that transgender activists must endure, but also a clear witness of the determination and resilience of such activists to see this long battle through to a just and fair outcome.
The constitution of Malaysia provides for a unique dual justice system—the secular laws (criminal and civil) largely inherited from the colonial era coexist with Sharia laws. The latter are the basic Islamic legal system derived from the religious precepts of Islam. In Malaysia, the two streams of law have come into conflict, and currently Sharia prevails – to the cost of Malaysia’s transgender community.
Transgender women in Malaysia, under laws influenced by Islamic beliefs, are subject to arrest, detention, and punishment for “cross-dressing”. Last November a small group of transgender Malaysians and allies led by the courageous transgender activist Nisha Ayub, a woman whom I count as a friend (2nd from the left in the photo above), felt that they were nearing the end of five years of legal endeavor. They had won a court victory that put the cross-dressing law aside in a precedent-setting case of three transgender women who faced charges of having been cross-dressers. Remarkably for Malaysia, the court ruled that the cross-dressing law contravened fundamental liberties, including personal liberty, equality, freedom of movement and freedom of expression – although it did not go so far as to acknowledge the legality of the claimed gender of the three women. It was a unique victory in the context of Malaysia, but on October 8th it was undone. The Federal Court overturned the lower court’s ruling, on a technicality. Nisha, her transgender sisters, and allies will begin the long process anew.
But what about sex? Transgender people are fighting for their identity, and their sexual orientation is not the primary issue. In fact, even trying to discuss sexual orientation among transgender persons is an invitation to conceptual chaos. A person who was declared male at birth but who then grows to sexual maturity and is attracted to men would be classified as gay. If that person however is transgender, and their transgender sexual identity is legally recognized as female, they become legally heterosexual. If that same person had originally grown up and was attracted to women, “he” (as then embodied) would be considered heterosexual until such time as “he” transitions to “she” (or to a gender non-binary status) when the homosexual label would be applied. In Islam, homosexuality is abhorrent, but transgender status isn’t seen as anything other than a disorder (which can still often lead to severe punishment and stigma). Being diagnosed as a “transsexual” (a transgender person living full time in their authentic gender identity) makes it a medical condition under some interpretations of Islam, not a moral one. In Iran the difference has been taken to its logical conclusion; Iran performs more sex-change operations than any country in the world except for Thailand. In a country where same-sex relationships are punishable by execution, sex-changing surgeries may mean the difference between life and death.
So Nisha Ayub is left to continue her monumental struggle. Internationally she’s earned widespread respect as a leading human rights defender on transgender rights in Malaysia. And she’s got the horror stories to burnish her deserved stature as a leader. When she was only 21, Malaysian religious authorities sentenced her under the cross-dressing law to three months in a male prison, basing their sentence on Sharia law which “prohibits any male person, who, in any public place, wears a woman’s attire or poses as a woman.” In prison, she endured sexual abuse by the warden and other prisoners. Since her release, Nisha Ayub has been the victim of more violent attacks, one just recently.
Her resilience and courage in the face of such adversity deserves not only our deep respect, but our comprehensive support too. So does the cause she is fighting for.