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Situation of LGBTI People in Malaysia

Trotz gravierender Menschenrechtsverletzungen ist Malaysia das diesjährige Partnerland der Internationalen Tourismus Börse (ITB). Hier geben wir einen kurzen Überblick über die Situation von Lesben, Schwulen, Bisexuellen und Transgender in Malaysia.

This short briefing paper gives an overview on the situation of LGBTI people in Malaysia based on reports from ILGA, Foreign Ministries, the United Nations and mayor Human Rights NGOs.

In August and September 2018 the story of two Muslim lesbians who were publicly caned under Sharia law in a public forum in the state of Terengganu despite international and social protests made international headlines. [1][2]. #This torture is not yet reflected in major reports like from the US State Department and Amnesty International who were published before.  

Suara Rakyat Malaysia (Englisch "Voice of the Malaysian People “ – Abbreviation SUARAM) together with FIDH – International Federation for Human Rights (FDIH) published an annual report on human rights in Malaysia[3], on two pages many local reports from 2017 are listed of discrimination and persecution of LGBTI people.

In the ILGA State Sponsored Homophobia Report 2017 pages 130-131 there is information on the criminalization under Section 377A of the penal code and also that in addition Sharia law criminalizes homosexuality[4].

Penal Code (Consolidated version 1998)[5].

Section 377A. Carnal intercourse against the order of nature.

“Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.

Explanation: Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.”

Section 377B. Punishment for committing carnal intercourse against the order of nature

“Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.”

Section 377D. Outrages on decency

“Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years”

Several states in Malaysia have instated Islamic Sharia laws[6], applying to male and female Muslims, criminalising male/male and female/female sexual acts with up to three years imprisonment and whipping. The Sharia Penal law in the Malaysian state of Pulau Pinang [7]confers penalties for sodomy [Liwat] and lesbian relations [Musahaqat] with fines of RM 5,000.00, three years imprisonment and 6 lashes of the whip. All these penalties can be combined.

In Reports from Foreign Ministries, the United Nations and Mayor Human Rights NGOs the effect of this criminalization for LGBTI people is spelled out.

The United States State Department in its Country Reports on Human Rights Practices for 2017 - Malaysia of 20. April 2018[8] criticizes Malaysia’s record:

Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity”, 

Homosexual acts are illegal regardless of age or consent. The law states that sodomy and oral sex acts are “carnal intercourse against the order of nature,” though authorities rarely enforced this provision.

It was, however, the basis for the controversial case against parliamentary opposition leader Anwar Ibrahim (see section 1.e.). Religious and cultural taboos against same-sex sexual conduct were widespread (see section 2.a.).

Authorities often charged transgender individuals with “indecent behavior” and “importuning for immoral purposes” in public. Those convicted of a first offense faced a maximum fine of 25 RM ($5.77) and a maximum sentence of 14 days in jail. The sentences for subsequent convictions may be maximum fines of 100 RM ($23.10) and a maximum of three months in jail. Local advocates contended that imprisoned transgender women served their sentences in prisons for men where police and inmates often abused them verbally and sexually.

A survey by a local transgender rights group reported more than two-thirds of transgender women experienced some form of physical or emotional abuse. In February, Sameera Krishnan, a transgender woman, was shot and killed and her body mutilated in the eastern city of Kuantan. Police arrested five suspects in April but later released them on bail. Sameera had been previously kidnapped, beaten, and raped in 2015. Court proceedings against two men charged in her 2015 kidnapping continued as of November. According to a local transgender rights NGO, two other transgender women were killed in the year through November.

 

The Australian Foreign Ministry (DAFT) sees the situation of LGBTI people as critical in its Malaysia-Report of July 2016[9]:

Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attracts a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.

The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships

The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.

Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a ‘re-education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.

Transgender Individuals

Cross-dressing is not technically illegal, however transgender individuals are arrested under the Minor Offenses Act for public indecency and immorality, and, where Muslim, under sharia-based law for impersonating women. These laws are predominantly applied to biological men dressing as women. The National Fatwa Council banned gender reassignment surgery in 1983 and the Registration Department stopped the practice of changing names and gender for transgender individuals on national identity cards.

Where transgender women were identifiable as Muslim, and as male, as demonstrated on their national identity card, they were occasionally arrested by state religious authorities or the Royal Malaysian Police. While the majority of arrests occurred in public places, state religious officials occasionally conducted raids on private premises. Members of the Royal Malaysian Police had on occasion accompanied such officials.

In October 2015, regarding the case of three Muslim transgender women from Negeri Sembilan, the Federal Court reversed a lower court ruling that had found Negeri Sembilan’s state-Level prohibition on men dressing as women to be unconstitutional.

The Federal Court advised the defendants to exhaust their case in the sharia court, where it had originated. In June 2015, nine transgender women were convicted by a sharia court in Kelantan state under cross-dressing prohibitions. In 2011, a transgender woman was arrested for cross-dressing and was sexually assaulted by religious department officials in Negeri embilan. In 2012, religious department officials forcibly entered the home of a transgender woman in Seremban. The woman, a non-Muslim—as confirmed by a check of her national identity card—was not arrested. However, her Muslim transgender friends were arrested for cross-dressing.

State religious officials have been known to subject transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are held in male prisons and have occasionally been subjected to sexual assault by wardens or fellow detainees. Societal violence also occurs. On 10 September 2015, Malaysia’s most prominent transgender activist, Nisha Ayub, was brutally beaten by two Indian Malaysian men with iron bars outside her apartment building. She reported the hate crime to police but no suspects have been identified.

 

The United Nations Special Rapporteur on Health Dainius Pūras has criticized Malaysia because of its treatment of LGBTI people [10]:

22. The Special Rapporteur on health stated that discriminatory societal attitudes towards lesbian, gay, bisexual and transgender persons prevailed in Malaysia and had been exacerbated over the past few decades by the use of a stigmatizing rhetoric by politicians, public officials and religious leaders. The criminalization of same-sex conduct and of different forms of gender identity and expression had reinforced negative societal attitudes and led to serious human rights violations of the rights of that group of the population.[11]

 

The United Nations Special Rapporteur in the field of cultural rights Karima Bennoune has also criticized Malaysia because of its treatment of LGBTI people[12]

40. Although more socially accepted in the past, homosexuality and gender fluidity is now considered a crime. Article 377 A of the Penal Code criminalizes same-sex activity between men, with punishments of up to 20 years in prison and whipping. In all states, as well as in the Syariah Criminal Offences Act, there are provisions which penalize transgender individuals on the basis of their gender identity and expression and which have led to arrests by the police and state religious departments. Lesbian, gay, bisexual, transgender and intersex persons have been repeatedly called “deviant”, and films portraying homosexual or transgender persons in a positive manner have been censored. In the months leading up to the Special Rapporteur’s visit, at least three LGBTI events, including a film screening, were cancelled, one of them following online protest by conservative and fundamentalist groups. Statements from the Government rejecting discrimination and bullying of lesbian, gay, bisexual, transgender and intersex persons, such as that posted by the Federal Department of Islamic Development(JAKIM) on social media on 19June 2017, while important, are rendered meaningless if measures taken by the authorities themselves are discriminatory and intolerant.

72. However, many sectors of Malaysian society, including diverse government officials themselves, expressed concern at what they saw as the growing Islamization and Arabization of the society and polity, based on an increasingly rigid and fundamentalist interpretation of Islam which represents a significant break with the past and is giving rise to cultural engineering. One lawyer said, “I fear for my country.” A writer said, “There is a fire here. Wahhabism is creeping fast and deep into our society.” Some experts indicated that this tendency was infusing the educational system and affecting the corps of teachers, as well as “corroding values”among young people. It has reportedly also had deleterious consequences for the cultural rights of religious minorities, of indigenous peoples, of women, of human rights defenders, including women human rights defenders, of lesbian, gay, bisexual, transgender and intersex persons, of artists and cultural experts and of many others in society, and most especially for the cultural rights and the freedom of religion or belief of Muslims and people of Muslim heritage.

75. The Special Rapporteur is alarmed that Parliament has been considering adopting legislation under the RUU355billexpanding the punishments –including corporal punishments that violate international human rights law –that can be imposed by Syariah Courts to up to a 30-year prison sentence, a RM 100,000 fine (approximately $23,920 in November 2018) and 100 lashes. She greatly regrets that some religious authorities with whom she met clearly support this expansion. Such punishments are difficult to rationalize with stated commitments to moderation and progressiveness. Experts fear that any such legislation would be used to discriminatory effect, with particular impact on lesbian, gay, bisexual, transgender and intersex people among others. The future of the RUU355bill was uncertain as the present report was being finalized

82. The Special Rapporteur is gravely concerned about the misuse of the concept of extremism to repress activities undertaken in accordance with international human rights standards. She was very sorry to receive reports that progressive Muslim groups and lesbian, gay, bisexual, transgender and intersex rights defenders had erroneously labelled extremists, or “like Daesh”,in certain instances by authorities. This undercuts the struggle against actual extremism and the critical efforts of these human rights defenders.

 

Mayor Human Rights Organisations like Human Rights Watch[13], Amnesty International[14] and Freedom House [15] have been very critical regarding the situation of LGBTI people in their recent annual reports:

Discrimination against LGBT people remains pervasive in Malaysia. Federal law punishes “carnal knowledge against the order of nature” with up to 20 years in prison, while numerous state Sharia laws prohibit both same-sex relations and non-normative gender expression, resulting in frequent arrests of transgender people. While the new minister for religious affairs called for an end to workplace discrimination against LGBT people, he also made clear any visible expression of an alternative sexuality or gender identity will be prosecuted under existing laws, and that he supports programs, broadly discredited, designed to change personal sexual orientation.

In August, the religious affairs minister ordered the removal of portraits of transgender activist Nisha Ayub and LGBT activist Pang Khee Teik from an exhibit in Penang celebrating influential Malaysians, claiming the government’s policy is to not promote LGBT activities. The controversy unleashed a wave of verbal abuse against transgender people. On August 18, eight men brutally beat a transgender woman in Negeri Sembilan, causing internal injuries, broken ribs, and injuries to her head and back.

In September, a Sharia court in Terengganu state ordered two women be given six strokes of the cane for alleged same-sex conduct. The sentence was carried out in a courtroom in front of 100 witnesses, prompting global criticism.  

On September 21, Prime Minister Mahathir stated that Malaysia “cannot accept LGBT culture,” raising concern about the government’s commitment to protect the rights of LGBT people. (Human Rights Watch)

Discrimination against LGBTI people continued both in law and practice. Section 377A of the Penal Code criminalizes consensual sexual relations between adult men. In June, the Health Ministry received local and international criticism for its decision to launch a video competition for teenagers on how to “prevent gender confusion” which included “gay, lesbian, transgender, transvestite and tomboy”. The wording was subsequently removed. (Amnesty International)

LGBT Malaysians face widespread discrimination and harassment. Same-sex sexual relations are punishable by up to 20 years in prison under the penal code, and some states apply their own penalties to Muslims under Sharia statutes. The Ministries of Health and Education conduct campaigns to “prevent, overcome, and correct” homosexuality in children, while the Ministry of Information has banned television and radio shows depicting gay characters. The Malaysian Islamic Development Department operates camps to “rehabilitate” transgender Muslims. (Freedom House)



[1] HRW – Human Rights Watch: Malaysia: Two Women Face Caning for Same-Sex Conduct, 21 August 2018. https://www.hrw.org/news/2018/08/21/malaysia-two-women-face-caning-same-sex-conduct

[2] BBC World News, LGBT rights: Malaysia women caned for attempting to have lesbian sex, 3 September 2018 https://www.bbc.com/news/world-asia-45395086  

[3]SUARAM (Author), published by FIDH – International Federation for Human Rights: Suara Rakyat Malaysia (SUARAM) - Malaysia Human Rights Report 2017, 7 December 2017, Seiten 45-46. https://www.fidh.org/IMG/pdf/hr_overview_2017_digital_edition_.pdf

[4] International Lesbian, Gay, Bisexual, Trans and Intersex Association: State Sponsored Homophobia 2017: A world survey of sexual orientation laws: criminalisation, protection and recognition, May 2017 https://ilga.org/downloads/2017/ILGA_State_Sponsored_Homophobia_2017_WEB.pdf

[9]DFAT – Australian Government - Department of Foreign Affairs and Trade: DFAT Country Information Report Malaysia, 19 July 2016 https://www.ecoi.net/en/file/local/1419314/4792_1512559885_country-information-report-malaysia.pdf

[10]HRC – UN Human Rights Council (formerly UN Commission on Human Rights): Compilation on Malaysia; Report of the Office of the United Nations High Commissioner for Human Rights [A/HRC/WG.6/31/MYS/2], 3 September 2018 https://www.ecoi.net/en/file/local/1446073/1930_1539259125_g1826597.pdf

[11] HRC – UN Human Rights Council (formerly UN Commission on Human Rights): Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Pūras; Addendum; Visit to Malaysia (19 November-2 November 2014) [A/HRC/29/33/Add.1], 1 May 2015 https://www.ecoi.net/en/file/local/1184874/1930_1432733324_a-hrc-29-33-add-1-en.doc

[12]HRC – UN Human Rights Council (formerly UN Commission on Human Rights): Visit to Malaysia; Report of the Special Rapporteur in the field of cultural rights [A/HRC/40/53/Add.1], 10. January 2019
https://www.ecoi.net/en/file/local/1457545/1930_1549457787_g1900413.pdf

[13] HRW – Human Rights Watch: World Report 2019 - Malaysia, 17. January 2019 https://www.hrw.org/world-report/2019/country-chapters/malaysia

[14] AI – Amnesty International: Amnesty International Report 2017/18 - The State of the World's Human Rights - Malaysia, 22 February 2018 https://www.amnesty.org/en/countries/asia-and-the-pacific/malaysia/report-malaysia/

[15]Freedom House: Freedom in the World 2018 - Malaysia, January 2018 https://freedomhouse.org/report/freedom-world/2018/malaysia