Types of criminalisation

  • Criminalises sex between men
  • Criminalises sex between women
  • Criminalises the gender identity/expression of trans people
  • Death penalty applies
Commonwealth member state
Penal Code 1936, S. 377A/377B Unnatural Offences

Sections 377A and 377B prohibit “carnal intercourse against the order of nature” with a penalty of up to twenty years imprisonment and whipping. Both men and women are criminalised by this law.1

Penal Code 1936, S. 377D Outrages on Decency

Section 377D criminalises acts of “gross indecency” with a penalty of up to two years imprisonment. This provision applies equally to both men and women.2

Enforcement

2018

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.

2017

The US Department of State Human Rights Report for Malaysia states that S377A and 377B are rarely enforced by authorities. However, the parliamentary opposition leader Anwar Ibrahim was arrested under the basis of this law.

ILGA’s State-Sponsored Homophobia Report for 2017 stated that in additional to federal laws, several states have instated Sharia laws criminalising same-sex sexual conduct with up to three years imprisonment and whipping.

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.

2015

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,

In February, the leader of Malaysia’s opposition, Parti Keadilan Rakyat Anwar Ibrahim, was jailed for five years after losing his appeal against his conviction on sodomy charges.

2014

According to the US Department of State Human Rights Report for 2014, although the law prohibiting same-sex intercourse is rarely enforced, transgender individuals are often charged for “indecent behavior” and “importuning for immoral purposes” in public. Local advocates claimed that those imprisoned served their time in the male prison population and were often mistreated verbally and sexually by police and other inmates.

Statements by Public Figures

2018

In August, after a raid on a small LGBT night club, government minister Khalid Samad said in a statement on the motivation behind the raid: “hopefully this initiative can mitigate the LGBT culture from spreading into our society”.

A week before that, a judge in a Sharia court said after he ordered a lesbian couple to be caned that the judgment was “a lesson and reminder to not just the two of you, but the members of society”.

Deputy Prime Minister, Wan Azizah, has said privately LGBT people should have equal rights so long as they keep their “practice” behind closed doors and do not “glamourise their lifestyle”.

The Minister for Religious Affairs, Mujahid Yusof Rawa, has said the government would “take proactive measures to curb the growing lesbian, gay, bisexual, transgender issues, and help them to return to the right path and lead a normal life”.

The Deputy Minister for Public Affairs, Dr. Lee Boon Chye, stated that LGBT people have an “organic disorder”.

A politician from the ruling coalition, Charles Santiago, said that “These are citizens of our country, they are part of the Malaysian family and they cannot be discriminated against.”

2015

In September, Malaysia’s then Tourism Minister, Datuk Seri Nazri Aziz, reportedly said that: “LGBT people, I am sorry but even though you argue that it your human right to lead your [life] but it will not be allowed here because it is not allowed in Islam”.

LGBT people, I am sorry but even though you argue that it your human right to lead your [life] but it will not be allowed here because it is not allowed in Islam.

Datuk Seri Nazri Aziz, Former Tourism Minister

At a seminar in Bangi in August, former Prime Minister Najib Razak asserted that extremist armed groups and sexual and gender minorities both pose a threat to Malaysian society: “Groups like the Islamic State and lesbians, gay, bisexuals, and transgenders (LGBT) both target the younger generation and seem successful in influencing certain groups in society.” At the same event, Razak said “although universal human rights have been defined, we still define human rights in the country in the context of Islam and the syariah (Sharia law).”

In July, the National Muslim Youth Association (Pembina) launched a campaign in response to the United States Supreme Court’s ruling on same-sex marriage, urging its supporters to change their Facebook profile picture to an image of a crossed-out rainbow flag.

At an event in Pulapo in June, former Prime Minister Razak said: “there is no need for a gay parade [in Malaysia] whatsoever… There is a deviant teaching spreading in our society.”

There is no need for a gay parade [in Malaysia] whatsoever… There is a deviant teaching spreading in our society.

Najib Razak, Former Prime Minister

2014

In June, some Malaysian politicians reportedly threatened to withdraw their support for a bill on “National Harmony and Reconciliation” if it recognised discrimination against a person on the basis of their sexual orientation.

The Deputy Chairman of the National Unity Consultative Council (NUCC) law and policy committee said in June that the NUCC believed the section of the draft National Harmony Bill (see legislative news section below) prohibiting discrimination based on sexual orientation should remain. “Some segments in Malaysian society want to demonise the community… Why is it in Malaysia, LGBT is considered a bad word? Our Penal Code criminalises sodomy but it doesn’t criminalise sexual orientation”.

Former Prime Minister, Mahathir Mohamad, answering a question on the best way to prevent the spread of LGBT rights in Malaysia, responded: “It is good that they are having gay marriages, very soon they will disappear.”

2013

The ruling Barisanl Nasional Coalition printed and distributed anti-gay pamphlets while seeking re-election in May.

It was reported in March that a state-sponsored touring anti-gay theatre company had visited a number of schools in order “to educate the youngsters and their parents[on]the bad things about LGBT”.

2012

In September, the Malaysian Ministry of Education approved a set of guidelines to be used to help determine whether a child is gay or not. Included among the “symptoms” are: “Hav[ing] a muscular body and lik[ing] to show their body by wearing V-neck and sleeveless clothes; Prefer[ing] tight and light-coloured clothes; and lik[ing] to bring big handbags, similar to those used by women, when hanging out.”

Former Prime Minister, Najib Razak, in a June statement talked of the importance of Islam, stating: “any deviant aspects such as liberalism, pluralism and Lesbian, Gay, Bisexual and Transgender would not have a place in the country.”

In June, former Education Minister, Dr. Mashitah Ibrahim, warned that homosexuality goes against Islam and further stated that there is no constitutional freedom from discrimination for gay people living in Malaysia: “Article 8 of the Federal Constitution says there must be no discrimination of citizens in terms of religion or sex. ‘Sex’ has never been interpreted to mean sexual orientation; it has always been interpreted to mean either male or female, and they are [the only ones]protected by the constitution.”

Persecution and Discrimination

2018

In August, in a homophobic crackdown, police and government officials raided Blue Boy venue, a small nightclub in Kuala Lumpur, that was known to be popular with the LGBT community. Twenty men were arrested in this raid. A week before that, two lesbians received the penalty of being caned after they were caught having sex in a car. In the same week, 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.

2015

In September, Nisha Ayub, a prominent and internationally recognised transgender rights activist was assaulted in by two men with iron rods by her house.

2014

In its 2014 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.”

2013

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: “It [homosexuality] is like a disease but it can be cured with early intervention.”

2012

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.

Legislative News

2018

In its third UPR cycle, Malaysia received recommendations to decriminalise consensual sexual relations between adults and to adopt policies that prohibit discrimination and violence based on sexual orientation and gender identity, which it stated it would examine.

2015

In August, a representative of the Malaysian Prime Minister’s Department announced that the proposed National Harmony Bill “is expected to be tabled in Parliament in the coming session”. Some members of the government-appointed National Unity Consultative Council (NUCC) had originally indicated that the Bill would include a prohibition on discrimination on the grounds of “gender, including sexual orientation and identity”. However, in July 2014 a member of the NUCC’s law and policy committee said the phrase “sexual orientation” had been removed from the draft.

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.

2014

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 recently 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.

2013

In its second UPR cycle, the government stated that matters involving lesbian, gay, bisexual, and transgender persons and adherents of other schools of Islamic thought would be handled carefully and consistent with cultural traditions, religious doctrine and societal norms, and domestic laws and regulations. Malaysia went on to reject all recommendations calling for the decriminalisation of same-sex sexual conduct.

Footnotes
1. Penal Code 1936, S. 377A/377B Unnatural Offences

“377A. 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.

377B. 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.” Full text.

2. Penal Code 1936, S. 377D Outrages on Decency

“377D. 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.” Full text.

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