Special Issue Article: Trans Genealogies

Sexualities
2019, Vol. 22(1–2) 114–130
Mak nyahs and the ! The Author(s) 2018
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DOI: 10.1177/1363460717740256
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Framing empowerment
strategies of Malaysian
male-to-female
transsexuals in the 2000s
Joseph N Goh
Monash University Malaysia, Malaysia

Thaatchaayini Kananatu
Monash University Malaysia, Malaysia

Abstract
The unrelenting ill-treatment suffered by mak nyahs, or Malaysian pre-operative and
post-operative male-to-female transsexuals, indicates a steady process of dehumanisa-
tion that besieges mak nyahs in contemporary Malaysia. Nevertheless, the 2000s have
seen a groundswell of strategies by mak nyahs to dismantle forces that seek to dehu-
manise them, and thus to embrace self-empowerment. By analysing online media
resources, information from communication networks and legal cases pertaining to
mak nyahs, we aim to explain the ways in which the strategies of mak nyahs and their
allies to dismantle dehumanisation and empower themselves are framed and mobilised
in Malaysia in the 2000s. To this end, we draw on a two-fold analytical framework that
comprises David A Snow’s and Robert D Benford’s notion of collective action frames,
and Michael W McCann’s legal mobilisation theory, in order to interpret our analysis.
We argue that although mak nyahs have encountered dehumanising forces such as
violence, pathologisation and reparative therapy, religious denunciations and moral
policing, they have responded with diverse empowerment strategies that include the
telling of personal stories, increasing public visibility, eliciting international recognition
and support, forming alliances and organising collective action and legal recourse.

Corresponding author:
Joseph N Goh, Monash University Malaysia, Jalan Lagoon Selatan, Bandar Sunway, Selangor 47500, Malaysia.
Email: joseph.goh@monash.edu
Goh and Kananatu 115

Keywords
Collective action frames, legal mobilisation, mak nyah, Malaysia, male-to-female
transsexuals

Introduction
Malaysian mak nyahs, or pre-operative and post-operative male-to-female trans-
sexuals (Teh, 1998),1 have been at the brunt of religio-political, politico-legal and
socio-cultural antagonism in recent history. While they were respected in the past
as healers, spiritual leaders, courtiers, mak andam (makeup artists) and public
entertainers who received royal protection (Farish, 2010: 152–153; Greenberg,
1988: 57; Peletz, 2006: 320), the mak nyahs of today are subjected to various
forms of discrimination and violence. Nevertheless, the 2000s have seen a ground-
swell of strategies by mak nyahs to dismantle forces that seek to dehumanise them,
and thus to embrace self-empowerment. By analysing selected online media
resources, information from communication networks and legal cases,2 this article
seeks to investigate, understand and interpret the ways in which the strategies of
mak nyahs and their allies to dismantle dehumanisation and empower themselves
are framed and mobilised in the public sphere. We do not presume that all mak
nyahs have the capacity and opportunity to empower themselves in a radical, con-
spicuous fashion. Instead, we focus on those who publicly demonstrate varying
degrees of empowerment on personal, national and international levels.
The unrelenting ill-treatment suffered by mak nyahs, such as oppressive religious
and civil laws, the denial of gender identity amendments in official documents, job
opportunity discriminations, sexual and physical abuses and pronouncements of
sin and deviance, indicates the consequences of a steady process of dehumanisation
that besieges mak nyahs. Our use of the concept of dehumanisation borrows from
Judith Butler’s statement that ‘the notion of abjection designates a degraded or cast
out status within the terms of sociality’ (Butler, 1993: note 2, 243). Abjection is thus
the dynamic of subjective impossibility for those whose gender and sexual config-
urations fall outside the realm of ‘normalcy’. Dehumanisation is a form of abjec-
tion, in which certain sexual subjects become ‘unintelligible, do not matter, have no
legitimate existence, and, therefore, are unable to materialize’ (Ribeira, 2014: 198).
Thus, mak nyahs are dehumanised ‘non-entities’ (Goh, 2012b: 36) who are irrele-
vant and inconsequential because they do not fall into neat and acceptable cate-
gories of gender, sexuality, religion, law and society. Nevertheless, dehumanisation
does not purely denote abjection, as it also gives rise to ‘a creative and transforma-
tive politics of becoming’ (Bunch, 2013: 40). We deploy the concept of strategies of
empowerment to mean interconnecting individual and collective forms of action
that are geared towards influencing and transforming prevalent religio-political,
politico-legal and socio-cultural mindsets.
As scholars who seek to uphold equality and justice in issues of gender and
sexuality for all, we believe that our analysis is crucial for understanding the
116 Sexualities 22(1–2)

empowering performances of agency among mak nyahs. Studies on mak nyahs

often evince discriminatory tones that depict them as subjects of pathology
(Amran and Suriati, 2013; Nasrudin et al., 2013) or sexual misfits (Mohd et al.,
2013). Notable attempts have been made to present mak nyahs from more balanced
and sound perspectives through careful investigations of their lives (Khartini, 2005;
Teh, 1998, 2002, 2008), including from religious and theological perspectives (Goh,
2012a, 2012b; Kamali, 2011).
In this article, we focus primarily on the empowerment strategies of mak nyahs
in the 2000s. Our choice of this time frame is intentional. Towards the last quarter
of 2007, Malaysia witnessed an unprecedented climate of dissent and political
mobilisation which involved civil society groups, opposition political parties and
activist lawyers or ‘cause-lawyers’ (Harding and Whiting, 2012). During this
period, three major social movements—the Lawyer’s Walk for Justice organised
by the Malaysian Bar Council, the Bersih (‘Clean’) movement or the Coalition for
Clean and Fair Elections (Lee et al., 2010) and the HINDRAF (Hindu Rights
Action Force), an Indian ethno-racial minority movement (Kananatu, 2014,
2016)—organised mass demonstrations, rallies and marches in the urban spaces
of Kuala Lumpur city as well as the government complex at Putrajaya.
Although the three social movements were distinct in their causes and their
claims for grievances, the overarching issues for all were the overbearing executive
arm of the government, the increasingly illiberal nature of the political and legal
system in Malaysia and the necessity of securing constitutional rights and human
rights. The three social movements used civil disobedience strategies such as rallies,
marches and demonstrations, as well as non-direct action strategies, for instance
strategic litigation in the courts (Kananatu, 2014). It was during this social climate
of dissent and acts of mass resistance in the 2000s that other civil society groups
such as the university student movement (Weiss, 2012), and marginalised commu-
nities like the mak nyahs began to be empowered to organise and mobilise them-
selves as a collective.
We analyse and interpret online media resources, information from communi-
cation networks and legal cases pertaining to mak nyahs in the 2000s through a
two-fold analytical framework. First, we draw on the notion of collective action
frames, whereby social movements and their related activities ‘are collective actions
through which aggrieved collectivities give voice publicly to various grievances and
press relevant authorities to attend to the associated claims and/or demands’ (Snow
et al., 2013: Social movements; see also Benford and Snow, 2000; Snow and
Benford, 1988, 1992; Snow et al., 1986). We take a broad, ‘inclusive and elastic
conceptualization . . . of movements . . . as collective challenges to institutional,
organizational, and cultural domains other than just the state or the polity’
(Snow et al., 2013: Social movements). Therefore, our understanding of social
movement in this article considers individual and collective participation in chal-
lenging and reinterpreting structural systems and cultural beliefs in relation to mak
nyahs. Our understanding is accompanied by the belief that specific individuals
who participate as movement adherents harbour implicit and/or explicit knowledge
Goh and Kananatu 117

of the significance of their role as crucial components of a greater movement

towards justice and betterment for mak nyahs. Second, we use Michael W
McCann’s (2004, 2006a, 2006b) socio-legal theory of legal mobilisation which ana-
lyses the role of the law from a bottom-up (or grassroots) perspective that takes
into account the actions, motivations, movement culture, elite participation and
networks of the mobilisers and the mobilised. We adopt Marc Galanter’s definition
of the law as ‘a system of cultural and symbolic meanings’, thereby not merely
identifying the law as ‘a set of operative controls’ (Galanter, as quoted in McCann,
2004: 506). Hence, we take a broader and more inclusive meaning of the law, which
incorporates the ‘legal discourses, conventions and practices in constructive mean-
ing’ (McCann, 2006a: xii) that includes elite discourse and court-centric interpret-
ations of formal law, as well as the mak nyahs’ socio-legal discourses.

The architecturing of mak nyah dehumanisation

Malaysia comprises 61.3% Muslims, 19.8% Buddhists, 9.2% Christians, 6.3%
Hindus and 3.4% of those who constitute ‘other’ beliefs (Department of
Statistics, Malaysia, 2010). In this predominantly Muslim country, issues of
gender and sexuality are extensively monitored by the State (Lee, 2011). Active
hostilities towards mak nyahs have escalated since the political ascendancy of the
erstwhile premier of Malaysia, Mahathir Mohamad, in 1986 and the subsequent
Islamisation of the political machinery of the state due to the efforts of his admin-
istration (Liow, 2009: 46–72; Teh, 2008). One notable outcome of the
‘Mahathirisation’ of Malaysia was the establishment of the Jabatan Kemajuan
Islam Malaysia (JAKIM), or the Department of Islamic Development in
Malaysia. Among other tasks, JAKIM oversees the boundaries of Islamic teach-
ings and practices, and polices issues of sexuality among Malaysian Muslims
(Liow, 2009: 48–52).
Mahathir’s policies were seen as a threat and challenge to the Malaysian Malay
monarchy’s traditional role as rulers of Islam in their respective states. Soon after
Mahathir took over the helm of governance in Malaysia, the Conference of Rulers
issued a fatwa3 to prohibit genital reconstruction surgeries and ‘cross-dressing’
among mak nyahs (Teh, 2008). This situation has led to a representation of mak
nyahs ‘as Islam’s sinful Other and bestowed a carte blanche for exacting injustice in
its many forms’ (Goh, 2012a: 221) on them. Consequently, ‘the paths that religion,
politics, and culture [traversed] have been instrumental in creating a mindset that
fosters internalised transnegativity among Muslim mak nyahs’ (Goh, 2014b: 125)
who feel that they are transgressing their God, their State and a time-honoured way
of life.
For Muslim mak nyahs who constitute approximately 80 percent of more than
10,000 mak nyahs in Malaysia (Teh, 2008),4 the politicisation of Islam in Malaysia
dealt a grievous blow. The Islamisation policy and political agenda (Lee, 2010) led
to several changes in the law—especially the Syariah or Islamic laws in many states
in Malaysia. According to the 1957 Federal Constitution, Malaysia is a secular
118 Sexualities 22(1–2)

nation but allows each state to uphold its own Syariah or Islamic code that governs
its Muslim constituents. However, secular laws, such as the Minor Offences Act
1955 which applies to all Malaysians including non-Muslims, are routinely used to
apprehend mak nyahs and interpret crossdressing as ‘indecent behaviour’ under the
law (Commissioner of Law Revision, Malaysia, 2006a: 21). In this sense, both
religious/Islamic codes and secular laws are repressive tools used by the state to
control, regulate and effectively criminalise and dehumanise the mak nyahs.
The state-based Syariah laws tend to persecute mak nyahs for offences such as
‘cross-dressing’ and ‘impersonating’ women (Commissioner of Law Revision,
Malaysia, 2006b: 28). For instance, in 1992 the state of Negeri Sembilan enacted
Section 66 of the Syariah Criminal Enactment, which expressly stated that:

any male person, who in any public place wears a woman [sic] attire and poses as a
woman, shall be guilty of an offence and shall be liable on conviction to a fine not
exceeding one thousand ringgit or to imprisonment for a term not exceeding six
months or to both.5

Since 2010, Muslim mak nyahs have been persecuted by the state of Negeri
Sembilan and the state’s Islamic authorities for transgressing Section 66 (Mak
Nyah Community of Malaysia, 2010). Clearly, legal provisions like Section 66
are part of the dehumanisation of the mak nyahs. The issue eventually became
legally contentious, and activist lawyers who formed an alliance with the mak
nyahs resolved to test the constitutionality of provisions like Section 66. We discuss
this legal case later in this article.
Various Malaysian politicians have declared that lesbian, gay, bisexual and
transgender (LGBT)6 persons are exempted from constitutional protection due
to Islamic prohibitions (Mazwin, 2012; McCormick, 2015; Shazwan, 2015).
While such attitudes have placed all LGBT persons in precarious situations in
relation to their gender and sexual non-conformities, mak nyahs have become par-
ticularly vulnerable. This is due to their inability to remain ‘hidden’ in public, and
because ‘there is a subtle preferential treatment for men over women in political,
religious and sociocultural quadrants, often culminating in the subordination of
women’ (Goh, 2014a: 606). Mak nyahs, who are perceived by many as (‘superior’)
men who have ‘degraded’ themselves by ‘acting’ as (‘inferior’) women, are thus
located in spaces of ‘unusual vulnerability’ (Goh, 2012b: 217). Mak nyahs have also
been denied the right to self-identification. The late Aleesha Farhana’s application
to the Kuala Terengganu High Court to change her gender identity from male to
female in her Malaysian identity card was rejected, based on the claim that gender
identity is irrevocably determined at birth (Harian Metro Online, 2011).
The mak nyah identity thus becomes a marker of imperfect and lesser human-
ness, because it stands indeterminately at the threshold of the binary between ‘man’
and ‘woman’, ‘male’ and ‘female’ and even ‘heterosexual’ and ‘homosexual’. Little
wonder, therefore, that mak nyahs often find themselves at the forefront of dehu-
manisation. Nevertheless, as the following sections demonstrate, mak nyahs are no
Goh and Kananatu 119

longer contented with a passive acceptance of degradation and violence. Instead,

they are increasingly involved in diverse empowering strategies that speak against
dehumanising dynamics. These strategies include: (i) increasing public visibility; (ii)
securing international recognition and support; and (iii) forming legal and non-
legal alliances.

Framing empowerment strategies

Increasing public visibility
We suggest that personal storytellings that are publicised through various online
means are powerful contributions to the empowerment strategies of mak nyahs. In
2001, mak nyah activist and community leader Sulastri Ariffin was interviewed by
Malaysiakini, in which she lamented the lack of basic human rights for mak nyahs
due to prejudice, stigma and moralistic judgement. Sulastri7 was particularly con-
cerned about the discriminatory measures in health and education that mak nyah
communities were facing, and appealed to Malaysians to treat mak nyahs as human
beings. As she stated:

All we want is to be able to walk into a clinic when we are sick, and not be turned
away because of who we are[, yet] wherever we go, whatever we do, we are reminded
that we are abnormal and not accepted. (Sulastri, as quoted in Yeow, 2001)

In 2009, Sulastri was interviewed by The Nut Graph. She spoke of her life journey as
a mak nyah, including family rejection and eventual reconciliation. She recounted
one incident in which an aunt told her, ‘Even if you were part human and part swine
I would still accept you, you know’ (Sulastri, as quoted in Shah, 2009).8
Through such candid personal (and communal) stories, mak nyahs do
two things: First, their very identities as mak nyahs serve as unapologetic, liberating
and empowering tools to interrogate and challenge the normalcies of gender
and sexuality. Second, mak nyah stories diagnose and unmask social stigma and
antagonistic media depictions as the main culprits behind the violence and accus-
ations of pathology that are constantly hurtling towards mak nyahs. In so doing,
they engage in a subtle dismantling of dehumanisation by dis-identifying them-
selves as Malaysia’s sinful, ‘mis-gendered’ Other, and re-identifying themselves as
bearers of social injustice who deserve the same respect and equal treatment as any
other Malaysian. By weaving personal experiences with the experiences of the
wider mak nyah community, mak nyahs like Sulastri align their individual predica-
ments to more organised collective efforts that seek to remove the silence surround-
ing mak nyahs, and which allow them to speak for themselves. Mak nyahs also
empower themselves by increasing their public visibility as successful and product-
ive members of society. In so doing, they nullify metanarratives of mak nyahs as
aberrant subjects, and replace them with evidence-based examples of ‘success
stories’.
120 Sexualities 22(1–2)

Between 1992 and 2014, PT Foundation, a mostly HIV-focused, community-

based, non-governmental organisation in the Federal Territory of Kuala Lumpur,
ran a Mak Nyah Programme which aimed to inform mak nyahs on issues encom-
passing gender, sexuality, self-empowerment, human rights and sexual health. The
particular significance of this Programme lay in the fact that it was almost com-
pletely staffed by mak nyahs (Bedi, 2011; Sukumaran, 2011; Yeow, 2001; see also
Goh, 2014b: 126). Since 2014, the Programme has been registered as the SEED
Foundation, which operates independently from PT Foundation (PT Foundation,
2014). As ‘an organisation run by the community for the community’ (SEED
Foundation, 2015), many members of staff were once or are still part of various
marginalised communities.
In 2013, Hazreen Shaik Daud became the first mak nyah in Malaysian history to
be appointed as political secretary to the State Legislative Assemblyman of the
Malaysian state of Penang. Hazreen’s main duty was to assist in overseeing a
proposed committee to look after the welfare of mak nyah communities in the
state (Khor, 2013; Tamil, 2013). Initially, the proposed committee fell through
due to lack of political support (Mok, 2014). The committee was eventually
approved and seeks to hold ‘symposiums’ on transgender issues (Mok, 2016).
There are numerous Malaysian online resources that portray mak nyahs in a
positive light. The Star reported on the funeral ceremony of respected Malaysian
mak nyah and community leader M Asha Devi—fondly known as ‘Asha Amma’—
that was attended by hundreds of mourners, including mak nyahs (Lim, 2012).
Citizen Journalists Malaysia covered a Transgender Day of Remembrance memor-
ial service that was held on the premises of the Good Samaritan Kuala Lumpur
Christian community in November 2012 (Joorindanjn, 2012).
Sinar Harian published a report on the participation of 12 mak nyahs from the
Drug Intervention Community (DIC) in a Malaysian independence day march in
the Malaysian state of Pahang in 2013 (Diana, 2013). Says.com, a social news
portal, ran a feature entitled ‘8 Influential Malaysian Transgenders You Didn’t
Know About’ on its website in 2014. A short description of experiences and
achievements accompanied the photos of seven mak nyahs, namely Khartini
Slamah, Nisha Ayub, Hazreen Shaik Daud, Sulastri Ariffin, Yuki Vivienne
Choe, Sharan Suresh and Jessie Chung. A transman, Dorian Wilde, was also
included in the list (Khor, 2014). Additionally, Nisha Ayub, a leading human
rights defender of transgender rights in Malaysia, received the Alison Des Forges
and International Women of Courage Awards in 2015 and 2016 respectively
(Human Rights Watch, 2015; Malay Mail, 2016).
The multiple appearances of mak nyahs through online media resources, and
web and communication networks provide perspectives of mak nyahs that try to
mitigate the stigma and ill-conceived notions that ordinarily surround them.
Moreover, they run counter to claims that mak nyahs are pathological subjects
who can only lead fulfilling and ‘normal’ lives if they reject their mak nyah iden-
tities. The intense visibility of these mak nyahs amplify the existence of ‘living
proofs’ that mak nyahs can succeed as who they are. Therefore, these strategies
Goh and Kananatu 121

seek to transform transnegative misconceptions of deviance and abnormality in

relation to mak nyahs by ‘reframing’, ‘mainstreaming’ and ‘normalising’ them in
the eyes of the Malaysian public.

Securing international recognition and support

Since the 2000s, LGBT Malaysians have become increasingly mobilised, and have
sought recognition and support for their grievances based on the right to sexual
orientation in Malaysia (Lee, 2014), as well as from international non-governmen-
tal organisations such as Human Rights Watch. Mak nyahs are included under the
larger spectrum of LGBT subjects, but are gradually becoming mobilised as a
distinct collective with their own gender identity-based grievances rather than
discrimination-based grievances that result from sexual orientation. This has led
to increasing support from international organisations which acknowledge the
distinct problems of the mak nyahs, and celebrate their activism through official
recognition. In this manner, mak nyahs are able to extend their mobilisations by
linking themselves to like-minded and sympathetic allies.
Human Rights Watch is an international non-governmental organisation which
is registered in various countries such as the United States, Kenya and Japan
(Human Rights Watch, 2015). The main aim of Human Rights Watch is to monitor
and report human rights violations in the world in pursuance of the aims of the
1948 Universal Declaration of Human Rights. The 2014 Human Rights Watch
Report on Malaysia (Human Rights Watch, 2014) paid special attention to the
grievances of the transgender community, and highlighted the main issue as ram-
pant police abuse of mak nyahs. The report iterated that mak nyahs were frequently
arrested by the police for violating Syariah law provisions that include ‘cross-
dressing’. The report also found that mak nyahs were frequently ridiculed and
humiliated, jailed in all-male prisons and subjected to physical and sexual abuse
by police personnel as well as male inmates.
The report showed that mak nyahs were able to highlight their grievances to an
international body and frame their grievances as a human rights abuse. By linking
their grievances to a larger and more international cause—that of universal human
rights—mak nyahs successfully become part of transnational activism that fights
for the rights of all transgender persons. The language of universal human rights
that tends to speak of ‘universal freedoms’ is empowering to mak nyahs in their
efforts towards greater global nexus and framing. However, it should be noted that
the use of rights-based rhetoric by mobilisers or leaders of mak nyah activism is not
only meant to empower, but is also a response to the political and legal backlash
that is meted out by the Malaysian political leaders.
Two years before the Human Rights Watch report was produced,
Malaysian Prime Minister Najib Razak declared that LGBT activities do not
‘have a place in the country’ (Najib, as quoted in Malaysian Bar Council, 2013).
A year later, in 2013, then Deputy Prime Minister Muhyiddin Yassin accused
LGBT rights activists of ‘poisoning’ the minds of Muslims with ‘deviant practices’
122 Sexualities 22(1–2)

(Muhyiddin, as quoted in Zurairi, 2013). Hence, the rights rhetoric seems to be a

powerful response from Malaysian LGBT activism towards the ruling govern-
ment’s efforts to ensure that LGBT rights were excluded from the ASEAN
Human Rights Declaration that was adopted in November 2012 (Outright
International, 2012). The emphasis on human rights not only strategises the
attribution of blame for grievances suffered, but also serves as a motivational
frame and linguistic tool to shift the mak nyahs’ grievances or ‘problems’ from
being ones associated with their ‘gender identity’ to ones that give rise to gender-
based rights.

Forming legal and non-legal alliances

In this section we elaborate on the two different types of alliances formed with the
mak nyahs’ cause—the legal and non-legal alliances. The differentiation made
between the two is useful to show the mobilisation strategies taken by the mak
nyahs in order to organise collective action and seek rights-based legal remedies for
their grievances. As discussed earlier in the article, the constitutionality of Section
66 (the Syariah law enactment of the Malaysian state of Negeri Sembilan that
outlaws cross-dressing) became a useful tool to channel mak nyahs’ grievances
regarding the matter of ‘cross-dressing’. Both the non-legal and legal alliances
surrounded a legal case that was then taken to the High Court of Seremban in
the state of Negeri Sembilan to challenge Section 66 (hereafter referred to as the
Mak Nyah Case).9
In 2011, mak nyahs, with the alliance of activist lawyers or cause-lawyers,
attempted to challenge the constitutionality of Section 66 in a court of law
(Loyarburok, 2015). The provision, which is also referred to as the ‘Syariah provi-
sion’, applies only to the Muslim constituents of Negeri Sembilan. Hence, four
Muslim mak nyahs—Muhamad Juzaili bin Mohd Khamis, Shukur bin Jani, Wan
Fairol bin Wan Ismail and Adam Shazrul bin Mohd Yusoff—decided to apply for
judicial review and seek a declaration from the High Court of Seremban.
The declaration sought that the Syariah provision was void by reason of being
inconsistent with the following articles of the Malaysian Federal Constitution:
Article 5(1) (the right to life and personal liberty); Article 8(1) (the right to equality
before the law and equal protection of the law); Article 8(2) (the right to non-
discrimination on the basis of gender); Article 9(2) (freedom of movement); and
Article 10(1)(a) (freedom of speech and expression). The High Court decided to
dismiss the application made by the mak nyahs. The dismissal was viewed by many
as part of the ‘strategy’ of the mak nyahs, as their intention was to appeal and take
the matter to the higher courts (the Court of Appeal, and the Federal Court which
is the supreme court in Malaysia).
One of the key alliances in the mak nyahs’ politico-legal mobilisation is with the
elites, who possess specialised legal knowledge. These legal elites are mainly lawyers
and the Malaysian Bar Council (Harding and Whiting, 2012). The cause-lawyers
who are themselves involved in the mak nyah movement are a legal resource and
Goh and Kananatu 123

provide pro bono services to aggrieved mak nyahs. The involvement of lawyers also
led to the support given by law-based campaigns such as the Loyarburok which
helped to disseminate and publicise the social, political and legal grievances of mak
nyahs (Loyarburok, 2015). The Strategic Litigation Campaign that is run by the
Human Rights Committee of the Malaysian Bar Council and the Malaysian
Centre for Constitutionalism and Human Rights (MCCHR) (Bon, 2015) had
also led mak nyahs to incorporate a politico-legal strategy in their fight for
rights. This strategy, set within the social climate of dissent and acts of mass resist-
ance in the 2000s, reinforces the use of human rights by mak nyahs and their allies
as a master frame that is ‘wider in scope and inFuence’ (Snow et al., 2013: Social
movements) for the mak nyah cause.
After the High Court’s decision regarding the four mak nyahs in Negeri
Sembilan in 2011, a non-governmental organisation called Sisters in Islam (SIS)
called for a review of the Syariah provision in 2012 (Woon, 2012). The High Court
decision had clearly shown the way in which legal institutions, both civil courts and
Islamic courts in Malaysia, were treating mak nyah issues. The High Court’s con-
tention was particularly regarded as unfavourable by civil society groups like SIS
and Justice for Sisters. The ‘I AM YOU: Be a TransAlly’ transgender awareness
campaign, initiated by the community-based organisation Justice for Sisters,
became a crucial mouthpiece in the mak nyahs’ mobilisation against oppression
and draconian laws in Malaysia (Justice for Sisters, n.d.).
In 2012, the Malaysian AIDS Council, another non-governmental organisation,
iterated in a press statement that they respected the aforementioned High Court’s
decision regarding the four Muslim mak nyahs, but warned that the decision could
lead to ‘increased stigma’, persecution and discrimination (Malaysian AIDS
Council, 2012). The Council’s call for compassion for the mak nyah community,
the appeal to ‘universal values’ and the claim for non-discrimination against
gender-based as well as sexuality-based discrimination signalled the framing of
the issue from an international and human rights perspective entrenched in inter-
national human rights law.
In the Court of Appeal decision of the Mak Nyah Case [2015] 1 CLJ 954, the
mak nyahs were victorious in arguing their case on the basis of the rights-based
provisions in the Federal Constitution. However, lawyers for the mak nyahs also
used the medical or psychological condition known as ‘Gender Identity Disorder’
(GID) in order to put forth the argument that as men with this medical condition,
they should be exempted from the definition of ‘any male person’ under the Syariah
provision. The clinical psychologist called upon to explain GID iterated to the
court that the GID diagnosis refers to the ‘condition’ listed in the Diagnostic
and Statistical Manual of Mental Disorders (DSM IV-TR). DSM-5 has since
revised GID as ‘Gender Dysphoria’, which is ‘the distress that may accompany
the mismatch between one s assigned gender and how a person perceives their true
gender’ (Black and Grant, 2014: 283).
124 Sexualities 22(1–2)

The Court of Appeal judgment agreed with this reasoning. After an examination
of the evidence, which included statements made by psychologists and a sociologist,
the judges reciprocated by stating that:

‘GID is an attribute of the appellants’ nature that they did not choose and cannot
change; and that much harm would be caused to them should they be punished for
merely exhibiting a manifestation of GID i.e. cross-dressing’.

The framing of transgender men as males with an incurable condition was a legal
strategy that was clearly meant to gain the sympathy of the judges. The rights-
based framing of the mak nyahs’ grievances enabled them to amplify the uncondi-
tional rights and dignity for all human beings, argue for constitutional protection
as citizens of Malaysia and legally override the Syariah provision. In the process,
they utilised an identity frame which pegs the mak nyahs as not only an aggrieved
collective but also as the sufferers of a medical or psychological condition.
Nevertheless, we are keenly aware that the use of the medical model as a form of
prognosis framing can lead to the pathologisation of mak nyahs. Lisa Vanhala’s
(2009) study on the rights-based mobilisation of the disability rights movement in
Canada has shown that the movement was successful when mobilisers shifted away
from the medical model which identified the disabled as ‘helpless, defined by their
impairment and objects of charity or pity’. The danger of using a medical model is
that the ‘sufferers’ of the condition can be perceived in policy as a welfare or health
issue, rather than one of citizenship and human rights (Vanhala, 2009). We believe
that future research would do well to investigate the pathological nuances herein,
and their long-term impact on all LGBT Malaysians.
In October 2015, the Federal Court (the highest court in Malaysia) overturned
the Court of Appeal decision, indicating that the mak nyahs’ application for judi-
cial review had procedurally erred in seeking a High Court declaration that meant
to challenge the constitutionality of the Syariah provision (Loyarburok, 2015).
As the Syariah provision was part and prerogative of the Negeri Sembilan state’s
legislative power, the Federal Court found that the High Court of Malaya had no
power to question a State Legislature. In essence, the Federal Court had avoided
looking into the legal substance of the case—which would have been whether
Section 66 (the state-based Syariah law provision) was unconstitutional. The
mak nyahs’ legal case may have ended unsuccessfully, but it magnified international
media publicity and created an awareness of mak nyahs’ grievances not only among
the general public but also among the judiciary and non-legal elites.

Conclusion
In this article, we have striven to foreground the escalating empowerment of
Malaysian mak nyahs. First, we elucidated the dehumanisation of mak nyahs.
Goh and Kananatu 125

Then, we identified, analysed and framed the empowering strategies of mak nyahs
that dismantle these dehumanising dynamics from three major perspectives, chiefly
through increasing public visibility, eliciting international recognition and support
and forming legal and non-legal alliances. The melange of tribulation and triumph
in the lives of mak nyahs suggests that while the battle is far from over, mak nyahs
are gradually resisting dehumanisation forces in favour of more robust and trans-
formative measures that can assist them in securing their rightful place in a country
that continues to hold them in suspicion and disdain.

Funding
The author(s) received no financial support for the research, authorship, and/or publication
of this article.

Notes
1. The word ‘mak’ is a Malay honorific used for senior women. ‘Nyah’ is an abbreviation of
‘nyonya’, a term used for Malaysian ladies of mixed parentage. It is often used in refer-
ence to effeminate male-bodied subjects. Taken together, ‘mak nyah’ can be understood
as a respectful term for effeminate, lady-like men. In 1987, the term ‘mak nyah’ was
appropriated by pre-operative and post-operative male-to-female transsexuals as a sign
of self-definition (Khartini, 2005: 99). Nevertheless, the use of this term is more conspicu-
ous in the urban areas of west (peninsula) Malaysia, as compared to the suburban areas
or east Malaysia (Malaysian Borneo).
2. Due to the magnitude of news reports on mak nyahs, we have found it necessary in this
article to select online media resources that deal explicitly with issues of dehumanisation
and strategies of empowerment among mak nyahs.
3. A fatwa is a religious opinion which is issued by a mufti of a Malaysian state, and which
can be gazetted and take on the force of law (see Lee, 2011: 103).
4. Mak nyah activists Khartini Slamah and Sulastri Ariffin insist that there are between
20,000 and 30,000 mak nyahs in Malaysia (see Khartini, 2005; Sulastri, as cited in Yeow,
2001).
5. See Enactment No. 4 of 1992 Part IV Offence—Of Offences Relating to Decency, avail-
able at: http://www2.esyariah.gov.my/esyariah/mal/portalv1/enakmen2011/Eng_enact-
ment_Upd.nsf/100ae747c72508e748256faa00188094/70e212f0ecaf8e114825763b0027ff0e.
6. While we are aware that the ‘LGBT’ acronym turns the spotlight specifically on lesbian,
gay, bisexual and transgender persons, and thus backgrounds other queer subjectivities,
we use this acronym in recognition of its frequent use in the Malaysian media.
7. Many Malaysians of Malay, Indian and indigenous descent have patronymic names instead
of surnames. Throughout this article, we have sought to represent all patronymic names by
first names except in situations in which surnames have been known to be used specifically.
Nevertheless, the decision to take on surnames remains arbitrary and inconsistent.
8. Authors’ translation.
9. See the High Court of Malaya at Seremban, Judicial Review No. 13-1-2011. See also
Muhamad Juzaili Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors
[2015] 1 CLJ 954 (CA). All legal provisions and legal cases have been referenced accord-
ing to the Oxford University Standard for the Citation of Legal Authorities (OSCOLA).
CLJ refers to the Current Law Journal.
126 Sexualities 22(1–2)

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Joseph N Goh is a Lecturer in Gender Studies at the School of Arts and Social
Sciences, Monash University Malaysia. He holds a PhD in gender, sexuality and
theology, and his research interests include queer and LGBTI studies, human rights
and sexual health issues, diverse theological and religious studies, and qualitative
research. Goh’s personal weblog is at: http://josephgoh.org.

Thaatchaayini Kananatu is a Law Lecturer at the Department of Business Law

and Taxation, School of Business, Monash University Malaysia. She holds
an LLB (Hons) in Law, an LLM in International Law and a PhD in Sociolegal
Studies. Her doctoral research involved a socio-legal study of ethno-cultural
mobilisation. Her research interests include law and race, law and gender
identity, as well as rights mobilisation. She can be contacted at:
thaachaayini.kananatu@monash.edu