Types of criminalisation

  • Criminalises sex between men
  • Criminalises the gender identity/expression of trans people
Penal Code 1860, S. 377 Carnal Intercourse Against the Order of Nature

Section 377 criminalises “carnal intercourse against the order of nature” with a penalty of “transportation for life” or up to ten years imprisonment. This provision applies to both men and women.1

Police Act 1945, S. 35(c) Disguise

Section 35(c) of the Police Act 1945 criminalises any person found with his face covered or disguised with a penalty of up to three months imprisonment. This law is used to penalise transgender persons.2

Enforcement

2017

The US Department of State Human Rights Report for Myanmar states that the law was rarely enforced during the year. However, LGBT persons reported that police used the threat of prosecution to extort bribes. Transgender women were most frequently charged under so-called shadow and disguise laws. These laws use the justification that a person dressed or acting in a way that is perceived as not being in line with their biological gender is in “disguise.”

Statements by Public Figures

2017

In June, Border and Security Affairs Minister for Mandalay region, Dr. Myint Kyu, said: “The existence of gay men who assume they are women is unacceptable and therefore we are constantly taking action to have the gays detained at police stations, educate them, then hand them back to their parents… [W]e will be including in our operations the area as a special case”. 

2014

A number of individuals spoke for the decriminalisation of homosexuality whilst celebrating the International Day against Homophobia. Daw Swe Zin Htike, a former actress and human rights defender was quoted as saying: “We have lived in an insecure and unsafe situation for many years. We were afraid to speak out and make new changes though we knew that devaluing gay dignity was not the right way. But now it is a blessing that we see some changes, and it is important to go forward”.

Following an alleged “gay marriage” that took place in the country in March, a number of individuals spoke out against homosexuality. One abbot of the Magway Monastery commented: “Our Buddhism doesn’t allow it. It’s not appropriate naturally. We [Buddhist monks] also do not agree with it. We will not support any misconduct that is against the democratic system. It’s also against the Buddha teaching. It’s not appropriate… We should outlaw it extensively”. Aung Myo Min, director of the local LGBT group HREIB defended the couple from claims they had broken the law: “They only made the ceremony to show they have been loyal to each other for 10 years among their friends. Our country doesn’t allow same-sex marriage. They explained that their marriage is not in accord with the law”.

2013

In November, Nobel Peace Prize Winner and then opposition leader of Burma, Aung San Suu Kyi, called for the decriminalisation of consensual same-sex sexual relations: “Because of stigma, many people do not come to receive life-saving treatment or prevention services. This is costing lives”.

Because of stigma, many people do not come to receive life-saving treatment or prevention services. This is costing lives.

Aung San Suu Kyi, Politician

Persecution and Discrimination

2018

In January, Myanmar hosted its first ever public LGBT festival.

2017

The US Department of State Human Rights Report for Myanmar suggested that recent political reforms have made it easier for the LGBT community to hold public events and openly participate in society, yet discrimination, stigma and a lack of acceptance among the general population persisted. For instance, there were reports of discrimination against LGBT persons in employment and healthcare.

Legislative News

2016

In its second UPR cycle, Myanmar noted all the recommendations that it received concerning decriminalisation of consensual same-sex relations.

2011

There were no references to sexual orientation during Myanmar’s first UPR cycle.

Footnotes
1. Penal Code 1860, S. 377 Carnal Intercourse Against the Order of Nature

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Full text.

2. Police Act 1945, S. 35(c) Disguise

“(c) any person found between sunset and sunrise having his face covered or otherwise disguised, who is unable to give a satisfactory account himself;

may be taken into custody by any police-officer without a warrant, and shall be punishable on conviction with imprisonment for a term which may extend to three months.”

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