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Discrimination towards LGBT Community in Malaysia - The Bitter Truth

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Written by Tan Zhi Chung
Introduction: Definition of LGBT

LGBT is an acronym for Lesbian, Gay, Bisexual, and Transgender, where the former 3 are the sexual orientations, and the latter "T" is the gender identity of an individual. According to the Preamble of The Yogyakarta Principles, 'sexual orientation' is referred to as an individual's "emotional, affectional, and sexual attraction to…individuals of a different gender or the same gender or more than one gender". While 'gender identity is defined as "to refer to each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body…". The issue of LGBT community rights and conditions has gained attention these recent years in Malaysia. Several countries in Asia, such as Taiwan and Thailand, have taken a significant leap on this issue by recognizing and allowing same-sex unions. The Gender Equality Act B.E. 2558 was enacted to ban discrimination based on sexual orientation and gender identity in Thailand. In 2020, the Thailand Cabinet even approved a civil partnership bill recognizing same-sex unions with almost the same legal rights as married couples. As for Malaysia, although being separated by a strip of water from Thailand, the treatment received by the LGBT community in our country is vastly different.

Malaysia's Jurisdictional Approach towards LGBT Community

In Malaysia, the equality of every citizen is enshrined and protected under Article 8 of the Federal Constitution. It had explicitly stipulated in Clause 2 that there shall be no discrimination against any citizen based on gender. However, the cruel reality is that the LGBT community has fallen apart from the provision's equal protection. Discrimination, demonization, and suppression towards the LGBT community have been pervasive throughout the country, where the Government would always tend to turn a blind eye to this.

Statutory laws 

Malaysia is a country that practices a dual legal system that consists of Civil Laws and Islamic Law. Both legal systems had contained statutory provisions that impose criminal liability on the conduct of the LGBT community

Civil law

In civil law, most people might invoke Section 377A, B of the Penal Code, which criminalizes intercourse of carnal that against the order of nature (sodomy) punishable by up to 20 years in prison and mandatory whipping. However, if we read up the provision and adopt a literal interpretation, the said law is not an entirely "anti-gay law." The provision only criminalizes the act itself, not the individual per se, and is extended to any gender relationship. According to Latheefa Koya, Malaysia is yet to see any prosecution bring upon a homosexual simpliciter under the said section; instead, it is always used to deal with sexual assault cases. However, the said law is still considered a weapon that the Government can use at any time to suppress the LGBT community. 

Islamic law

Islamic law or also known as Syariah Law is said to be more rigid upon this issue. In Islamic teachings and traditional jurisprudence, homosexuality is forbidden and punishable by law. In Malaysia, under the Federal Constitution, any matters regarding Syariah Law are in the hands of the respective states. The Syariah Courts have only jurisdiction upon an individual who professes Islam. Every state has its separate Syariah Enactment that governs matters upon Muslims. However, it appeared that most of the Enactments contain provisions that criminalize the act of the LGBT community. By invoking Syariah Criminal Offences (Federal Territories) Act 1997, Section 25 and 26 outlawed both liwat (sodomy) and musahaqah (sexual intercourse between two women) as they were deemed forbidden in Islam. Furthermore, the said Enactment also prohibits any Muslim male person from dressing feminine under Section 28, which could be imposed with a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding one year or to both if found liable. In other states, such as Pahang, a woman who posed as a man will also be deemed guilty and liable for punishment.

Throughout these years, several judicial challenges towards these provisions have been brought to the Malaysian Court. One of the most significant cases brought by three Negeri Sembilan transgender people who were diagnosed with gender identity disorder had challenged the constitutionality of the Syariah Law that criminalizes the act of Muslim man posing as a woman. Both the High Court and Court of Appeal ruled that the said provision has violated Article 8(2) of the Federal Constitution that governs the equality among gender; hence it is void. It seems like a monument victory and a giant leap for the LGBT community in Malaysia; however, the Federal Court had subsequently struck out the decision, claiming that the case was submitted to the wrong Court and should be reinitiated from the Federal Court. Although the decision has led to some disappointments, this case has undeniably gained public awareness of the LGBT community predicament in Malaysia. Recently, another landmark judgment has been read out by our Chief Justice, Tengku Maimun. The case was regarding a Muslim man who had been arrested for attempting gay sex. The Federal Court had held in a majority that the Syariah Law banning consensual same-sex conduct is unconstitutional as the State authority has no jurisdiction since the Federal Law has already governed on this matter.

From my perspective, I am genuinely pleased and welcome the decision made by the Malaysian Courts. However, the truth is that the court decisions did not actually improve the current situation of the LGBT community as the discriminatory Federal, State laws and policies are continually being enforced in Malaysia. The authorities, especially the religious department, are still using these laws to suppress the community. The silence and overlook from the Government has tacitly allowed sexual orientation and gender identity-based discrimination in our country, which is a violation of their human rights. We are currently in desperate need of the repeal of the notorious sodomy law and a new piece of legislation that could ban any forms of discrimination that include gender identification. Everyone in this country is "Anak Malaysia" and should be entitled to be treated equally without prejudice. The LGBT issue in Malaysia is a challenging topic that this article has barely scratched its surface. But I do hope that through this article, Malaysians could more or less acknowledge the difficulties currently faced by the community and stop being hostile towards them regardless of your stance, as they are ordinary people.

At the end of my article, I would like to shout out to all the LGBT community out there by quoting Lady Gaga's "Born This Way" lyrics which wrote, "No matter gay, straight, or bi, lesbian, transgender life, I'm on the right track baby, I was born to survive." You are on the right path and remember to always love yourself. We are all in this together and looking forward to a better Malaysia that embraces the diversity of different communities.

Bibliography

 

 

 

  • Article 8(2) of Federal Constitution

 

  • Section 377A, 377B of Penal Code

 

  • Section 25, 26, 28 of Syariah Criminal Offences (Federal Territories) Act 1997 

 

  • Section 34 of Syariah Criminal Offences Enactment 2013

 

  • Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors [2015] 3 MLJ 513

 

  • State Government of Negeri Sembilan & Ors v Muhammad Juzaili bin Mohd Khamis & Ors [2015] 6 MLJ 736

 

 

 

 

 

 

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