a local organisation advocating for the rights of LGBT people through outreach and public awareness campaigns.
Types of criminalisation
- Criminalises LGBT people
- Criminalises sexual activity between males
- Criminalises sexual activity between females
- Criminalises the gender expression of trans people
Same-sex sexual activity is prohibited under the Penal Code 1936, which criminalises acts of ‘carnal knowledge against the order of nature’ and ‘gross indecency’. These provisions carry a maximum penalty of twenty years’ imprisonment with whipping. Both men and women are criminalised under this law. Although the law does not explicitly criminalise transgender people, they are often arrested under the Penal Code.
The law was inherited from the British during the colonial period, in which the English criminal law was imposed upon Malaysia. Malaysia retained the provision upon independence and continues to criminalise same-sex sexual activity today.
There is evidence of the law being enforced in recent years, and transgender people are particularly vulnerable to arrest under the law. Since the 2018 election a crackdown on the LGBT community has been underway, with several reports of arrest, prosecution, and the imposition of corporal punishment. A high-profile case saw a prominent transgender woman flee the country in 2021 following threats of arrest against her based upon her gender identity.
There have been consistent reports of discrimination and violence being committed against LGBT people in recent years, with transgender people again being particularly vulnerable to physical and verbal abuse.
In September, the Court of Appeal restored a ban on the book Gay is OK!: A Christian Perspective, which was quashed by the High Court in its February 2022 judgment. The book, authored by Malaysian writer Ngeo Boon Lin, was originally banned by the Home Ministry on the grounds of preserving public order, morality and public interest. The Court of Appeal agreed with the government, stating that freedom of expression may be restricted if necessary for reasons such as public order or morality.
In January, Deputy Minister in the Prime Minister’s Department (Religious Affairs), Ahmad Marzuk Shaary, suggested that stricter penalties could be imposed on LGBT people, arguing that the current punishments are not harsh enough. The Minister stated that he believed it is necessary to amend the existing Syariah Courts Act of 1965 or Act 355, which limits the sentences the Syariah courts can impose, to address “wrongdoings” and allow stricter punishments. The Deputy Minister further noted that all state religious enforcement agencies have been instructed to take against LGBT people who don’t “behave accordingly”.
Human Rights Watch said in January that all 13 states and the federal territory criminalise same-sex relations and gender non-conformity, in addition to the federal Penal Code.
In February, a gay man won a landmark court challenge against an Islamic ban on sex ‘against the order of nature’ in the Malaysian state of Selangor. In a unanimous decision, Malaysia’s top court ruled that the Islamic provision used in Selangor was unconstitutional and authorities had no power to enact the law.
In June, a government taskforce proposed amendments to Sharia law that would allow action to be taken against social media users for insulting Islam and “promoting the LGBT lifestyle”. The proposal was in response to social media posts celebrating pride month.
In March, Malaysia voted in favour of a failed Russian draft decision at the UN General Assembly’s Fifth Committee (Administrative and Budgetary) that would have had the Secretary-General withdraw his bulletin providing UN staff benefits for same-sex couples.
In August, the National Unity Minister announced that a ‘National Harmony Bill’, which had been debated since at least 2014 and was intended to tackle discrimination against protected groups, was to be dropped. The Minister stressed that the government believed existing laws were adequate. While sexual orientation and gender identity were once said to be included in the Bill, reports in June 2014 suggested they were to be removed.
A report published by the Asia-Pacific Transgender Network asserted that 14 Malaysian states criminalise men wearing women’s attire and posing as women, while three states criminalise women wearing men’s attire and posing as men. Penalties for these offences range from fines to imprisonment.
In November, the Putrajaya Court of Appeal of Malaysia declared a provision in the state’s Sharia law, which criminalised ‘cross-dressing’, unconstitutional. However, this landmark decision was overturned by the Federal Court on a technicality citing improper procedures used to challenge the Sharia law and without considering the substance of the constitutional challenge. The case began in 2011, when three Muslim transgender women challenged the provision in the state of Negeri Sembilan, claiming it violated their constitutional rights. The now overturned 2014 judgment of the Court of Appeal had noted that while states are empowered to enact laws involving matters of Islam, such laws cannot contravene the Federal Constitution. Despite that ruling, laws against ‘cross-dressing’ remained in force in the rest of Malaysia’s 13 states and its Federal Territories and are used against transgender people.
We’ve also assessed Malaysia’s sexual offence laws against international human rights standards. Not only does Malaysia criminalise same-sex sexual activity and expression of gender identity, it also fails to properly protect other vulnerable groups, such as women and children, from sexual offences.
In October, police raided a party being held by LGBT people, arresting at least 20 individuals for ‘cross-dressing’ and allegedly encouraging vice. Officials report that the arrests were made under Section 28 of the Syariah Criminal Offences (Federal Territories) Act 1997, which criminalises a “male person posing as a woman” and can incur a penalty of 1,00 ringgit (£185) and/or a imprisonment for a term not exceeding one year. Reports suggested that 40 religious officers backed by the police came into the venue which held some 1,000 participants. Following the raid Assistant Police Commissioner Noor Dellhan Yahaya vowed to “step up operations and inspections on clubs.”
In February, the Minister for Islamic Affairs called for action to be taken against a prominent transgender entrepreneur, who posted pictures of herself in women’s clothing at a religious event. After the woman failed to appear in court, Selangor state issued a warrant for her arrest, announcing it was deploying 122 religious affairs officers to detain her. The woman was later revealed to have fled the country, to Thailand where she was grated asylum, despite Malaysian authorities seeking her extradition. Malaysian authorities insisted efforts to return her to to Malaysia were not intended to “punish” but rather to “educate” her.
A report noted that according to LGBT activists, Islamic laws have increasingly been used to target gay people in Malaysia, with a rise in arrests and prosecutions.
The US Department of State report found that transgender people are often charged with ‘indecent behaviour’ offences, and face fines and a prison sentence.
The US Department of State report noted that in November, the Selangor State Sharia court sentenced five men to six to seven months’ imprisonment, six strokes of the cane, and a fine for ‘attempting to have intercourse against the order of nature.’ The sentencing of the men was later challenged, leading to the Federal Court issuing a ruling invalidating the state law that criminalised consensual same-sex relations (see Law and Legal Development, above).
The US Department of State report suggested that the criminalising provisions were ‘rarely enforced’.
In May, opposition leader Anwar Ibrahim was released from detention after receiving a royal pardon for same-sex sexual activity charges, a charge he denied and one viewed internationally as politically motivated. Ibrahim had been in prison since 2015.
Following the new government coming into power in May, a serious crackdown on the LGBT community began, and reports of arrests and assaults of LGBT people increased. In August, an LGBT venue was raided and twenty men were arrested. In the same week, a Sharia court ordered a lesbian couple, who were allegedly caught having sex in a car, to be caned. The report noted this was the first time in years that such a punishment had been handed down. Human Rights Watch cited human rights activists who said that the courts had never actually imposed caning sentences before 2018.
In February, the leader of Malaysia’s opposition, Anwar Ibrahim, was jailed for five years after losing his appeal against his conviction on sodomy charges.
In June, a Sharia court in the north-eastern Malaysian state of Kelantan convicted nine transgender women under a law that prohibits “a male person posing as a woman”. All of the women received fines, and two were sentenced to jail terms of two months.
The US Department of State report found that detained transgender women served sentences in male prisons and were subjected to verbal and sexual abuse. State authorities allegedly forced LGBT people to participate in conversion therapy, which had been endorsed by the government (see below). LGBT people reported discrimination in employment, housing, and access to services.
A survey by a local transgender group found that more than two-thirds of transgender women experienced some form of physical or emotional abuse.
In August, a trans woman was brutally beaten on the street in Seremban while seven others watched. The attack left her with broken ribs, a broken backbone and a ruptured spleen.
In February, it was reported that the government openly endorsed conversion therapy after a government department released a video indicating that sexual orientation may be changed with “extensive training and guidance”.
In September, Nisha Ayub, a prominent and internationally recognised transgender rights activist was assaulted in by two men with iron rods by her house.
In its world report, Human Rights Watch commented on the persecution of trans people in Malaysia: “Police regularly arrest transgender persons, especially Muslims who are considered to be violating Sharia law provisions against cross-dressing, ridicule and humiliate them, and jail them in lock-ups where they are subject to physical and sexual abuse by police staff and male inmates.”
In February, an estimated 16,000 parents and teachers attended a seminar on how to curb LGBT behaviour that took place in Politeknik Seberang Prai. After opening the seminar, Malaysia’s then Deputy Education Minister told a press conference: “[homosexuality] is like a disease but it can be cured with early intervention.”
An Equal Rights Trust report documents many instances of persecution and discrimination of Malaysian sexual minorities, including discriminatory police conduct and violence as well as other forms of discriminatory conduct.
a community organisation supporting people living with HIV, including LGBT people.
Singapore criminalises same-sex sexual activity between men. Sentences include a maximum penalty of two years’ imprisonment.
Two provinces of Indonesia criminalise same-sex sexual activity between men and between women. The gender expression of trans people is criminalised under the federal law. Sentences include a maximum penalty of eight years’ imprisonment and 100 lashes.
Brunei criminalises same-sex sexual activity between men and between women. The gender expression of trans people is also criminalised. Sentences include a maximum penalty of death by stoning.
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