MEMORANDUM: Anti-LGBT amendments by the Prime Minister’s Department (Religious Affairs) have wide-ranging impact on all persons in Malaysia

We, the undersigned human rights groups, are deeply concerned over the statement by Ahmad Marzuk Shaary, Deputy Minister at the Prime Minister’s Department (Religious Affairs), following a special task force meeting to address LGBT issues facilitated by the Department of Islamic Development Malaysia (JAKIM). The meeting was attended by the Ministry of Communications and Multimedia, Home Ministry, Malaysian Multimedia and Communications Commission (MCMC), and Royal Malaysian Police (PDRM). 

In the statement, the Deputy Minister stated that the task force will: 

  1. Identify problems and constraints faced by authorities in implementing integrated enforcement;
  2. Propose amendments to the Syariah Criminal Procedure (Federal Territories) Act 1997 (Act 560) and the state Syariah Procedure Enactments to allow enforcers to act against Muslim persons who insult Islam and commit Syariah offences by using network facilities, services and applications; and
  3. Develop a comprehensive Standard Operating Procedure (SOP) or guideline on procedures to deal with offences in relation to insult of religion and promotion of LGBT lifestyle. 

This memorandum outlines both the concerns with the proposed amendments as well as the problematic and arbitrary methodology used for implementation, the impact on LGBTIQ persons and businesses, the infringement and violation of multiple rights enshrined in the Federal Constitution and international human rights standards, and how they contribute to religious extremism in Malaysia. 

Given the magnitude of harm of the proposed amendments on all persons, the state must cease all plans to move ahead with the amendments. 

Moreover, we are also concerned that prevailing anti-LGBT sentiments by the authorities will be used as a pretext to push through these amendments and bypass responsible law making processes. The State has a duty to explain the full extent and impact of the proposed amendments on all persons before proposing and tabling such amendments. Members of Parliament must call for a cost-benefit analysis and a human rights assessment of the proposed amendments, and insist on public consultations to fully explain the extent of the proposed amendments if the legislature were to proceed with the tabling of the proposed amendments when Parliament reopens.

At a time when Malaysia should be focused on the post-pandemic recovery process, it’s decision makers must focus on legislative amendments that serve and benefit everyone, without further marginalising communities that are already vulnerable.

Proposed amendments on state Syariah Procedure Act and Enactments violate Federal Constitution 

The proposed amendments come after the Federal Court decision on the Selangor state’s competency to enact Section 28 of the Selangor Syariah Criminal Offences Enactment, which criminalises sex against the order of nature. In the case, the Federal Court stated: 

  • [74] It is quite clear… Articles 74(3), 75 and 77 (state) that the primary power of legislation in criminal law resides in Parliament. 
  • This is further borne out by the State List in terms of the powers of the State Legislatures to enact criminal laws, namely that the powers are subjected to the preclusion clause in item 1 of the State List and item 9 of the State List.       
  • [81] … it can be postulated that having regard to the preclusion clause in item 1 of the State List, when the two Legislatures (Federal and State) legislate a law concerning the subject-matter of criminal law, and the two laws touch on the same matter, the said laws cannot co-exist even if the said law is said to be against the precepts of Islam.       
  • [87] As suggested during the hearing of this petition and by way of example: corruption and corrupt practices, rape, theft, robbery, homicide (including murder and culpable homicide) are all offences against the dictates, injunctions and precepts of Islam. The existence of the preclusion clause however serves to restrict the States from making laws on these subjects which, as rightly conceded by the respondents, remain within the domain of Parliament to regulate and enact within the general design curated by our Federal Constitution.

Many of the provisions in the state Syariah Criminal Offences Act and Enactments are currently inconsistent with Article 74, 75 and 77 of the Federal Constitution as stated in the Federal Court decision. 

The proposed amendments to the Procedure Act (Act 560) and Enactments will give effect to the state Syariah Criminal Offences Act and Enactments to be expanded to the online sphere. This means that all provisions in the state Syariah Criminal Act and Enactments, such as religious publication deemed against Islamic law–insults against Islam, opinions contrary to fatwas, prostitution, gambling, acts prepatory to sexual intercourse–could be applied in the online space. Consequently, the state Islamic officers are empowered not only to police the online behaviour of Muslim persons, but also to arrest Muslim persons for commiting the above-mentioned offences. 

According to a briefing paper on blasphemy provisions in Malaysian law by Article 19, the following acts have been used to censor and punish expressions in relation to blasphemy/religion online and offline: 

  • Sections 298 and 298A(1) of the Penal Code penalise the insult of any religion; 
  • Section 233 of the Communications and Multimedia Act 1998 (CMA) prohibits, among others, improper use of network facilities or network services; and
  • Sections 3(1) and 4(1) of the Sedition Act 1948; 
  • Section 7(1) of the Printing Presses and Publications Act 1984 (PPPA).

In a report by Article 19 and Civicus, at least nine cases of alleged insults to religion were documented, eight of which were in relation to alleged insults to Islam or the Prophet Muhammad. The cases were investigated under Section 233 of the CMA and Section 298A of the Penal Code.

Article 19 has called for Section 298 and 298A(1) of the Penal Code, the Sedition Act and the PPPA to be repealed and Section 233 to be reformed because these provisions are both inconsistent with international human rights standards, are arbitrary and open to abuse. 

By expanding Act 560 and other state enactments to the online sphere, Muslim persons will be subjected to additional policing and prosecution for the same ‘offence’ under Syariah and civil laws. This violates the rights of Muslim persons to equality before the law as guaranteed under Article 8(1) of the Federal Constitution. 

As such, the logical course of action for the Deputy Minister and state agencies would have been to review the compatibility of the Syariah Criminal Offences Act and Enactments with the Federal Constitution and international human rights standards, instead of proposing amendments that conversely fuel more discrimination and violence against the LGBTIQ community and violate the Federal Constitution. 

Arbitrary use of insulting Islam and other provisions 

Based on monitoring of reported cases of alleged insult to Islam, the State has consistently applied an expansive and broad interpretation in identifying what it deems an insult to Islam. Provisions like ‘insulting Islam’ and ‘encouraging vice’ under the state Syariah laws are used arbitrarily and expansively by state Islamic departments against LGBTIQ persons. In Sajat’s case, she was charged for insulting Islam because of gender identity and gender expression, in particular for wearing an abaya at a charity event that she organized for a tahfiz (Islamic) school. Meanwhile, ‘encouraging vice’ has been used against event organisers for organising events for or attended by trans women, restricting the freedom of expression and assembly for both the organisers and attendees. 

These prosecutions reinforce and expand the criminalisation of LGBTQ persons. These cases result in multiple human rights violations, particularly that of freedom of religion and belief, freedom of expression, equality and non-discrimination, right to privacy, right to live with equal dignity and access to economic opportunities, among others. 

Freedom of religion and belief is a fundamental right enjoyed by everyone, including LGBTIQ persons. LGBTIQ persons also rightfully believe that they are created in the image of their Creators and are fully accepted for who they are. There are many LGBTIQ persons who are devoted believers of religion. Many are respected imams, pastors and religious leaders who contribute to the ideals of inclusion, non-discrimination and equality within religion and in other spaces. 

Impact of proposed amendments on LGBTIQ persons 

The proposed amendments, which seek to expand the understanding of an ‘insult to Islam’ to include the promotion of a so-called LGBT lifestyle on social media, have been persistently advanced by PAS since 2018. The amendments violate multiple human rights, including: 

  • Freedom of expression and assembly as guaranteed under Article 10 of the Federal Constitution and Article 19 of the Universal Declaration of Human Rights (UDHR);
  • Right to privacy, dignity, to be free from violence, and access to justice; 
  • Equality and non-discrimination; and 
  • Freedom of religion and belief. 

The state must correct the misconception that “LGBT people are promoting their ‘lifestyle’ on social media”. What the state deems as ‘lifestyle’ is our very existence as human beings. As human beings, we are entitled to determine who we are and express ourselves accordingly. 

There is overwhelming evidence that affirms the diversity of human gender identity, gender expression, sex characteristics and sexual orientation. This diversity is a natural occurrence in life, and it is not an anomaly, deviance, sin or mental illness. Any actions taken to suppress or correct sexual orientation, gender identity, gender expression and sex characteristics is a form of violence and can amount to torture. 

Similar to a cisgender heterosexual person—who is free to share social media posts about themselves, their relationship, children or cats; and to participate in social media actions to promote human rights—a lesbian, gay, bisexual, trans, intersex, queer, non-binary person and others across the gender identity and sexual orientation spectrum can also express the same things, as all persons have equal rights to fundamental liberties. It is a double standard to restrict and penalise LGBTQ persons for posting on and participating in social media because of sexual orientation and gender identity. The state must recognise its role in perpetuating this double standard, and address the inequalities and harms caused by it.  

We also wish to clarify that Pride is a global reminder of progress and struggles that LGBTIQ persons have experienced and are still experiencing as a result of discrimination. It is a celebration of equal dignity, the right to self-determination and life, freedom of expression and assembly, which are all guaranteed under Articles 5, 8 and 10 of the Federal Constitution, respectively. LGBTIQ persons in Malaysia especially are deprived of their right to live with dignity because of criminalisation, marginalisation and other forms discrimination that we experience daily. Pride is a reminder to every LGBTIQ person in Malaysia to live with pride, and the progress that we can achieve in doing so.

Chilling effect on rights and opportunities for all persons 

The impact of the proposed amendments goes beyond Muslim persons. These are some of the broader impacts on all persons, specifically LGBTIQ persons regardless of religion: 

LGBTIQ persons already lack access to justice because of criminalisation and the multiple forms of discrimination that they face. The Monitoring Report: LGBTIQ+ Rights in Malaysia documents the challenges faced by Muslim queer women in reporting cases of violence by family members due to fear of prosecution under state Syariah laws. As a result, the women were subjected to forced marriages by their family members. These proposed amendments are concerning as they will further restrict access to justice and isolate LGBTIQ persons. 

The current administration must assess the broader impact of these amendments especially in relation to religious extremism. Malaysia has seen a rise in religious extremism over the past few years, and these proposed amendments may provide leeway for anti-rights and anti-LGBT groups to act with impunity. The current administration’s extreme position on LGBTQ persons reflects poorly on Islam, which in reality acknowledges diversity of gender, sex and sexual orientation. 

  • Loss of economic opportunities & economic marginalization of LGBTIQ persons. The social media space also serves as a space for LGBTIQ persons to circumvent employment discrimination and create economic opportunities for themselves and others, as acknowledged by Datuk Zahidi bin Zainul Abidin, the Deputy Minister of Communication, in a Parliament response on 3 August 2020. Many LGBTIQ businesses employ people from economically marginalised communities, including people living with HIV, single mothers, and other LGBTIQ persons, to uplift them. 

Over the last few years, trans women business owners have been suffering major losses as a result of boycott campaigns, increasing anti-LGBT sentiments, and state prosecution. The proposed amendments will have a negative economic impact on LGBTIQ businesses online and shrink spaces for them to seek economic opportunities. In the current COVID-19 pandemic, where economic stress, mental health and domestic violence are on a rise, it is extremely irresponsible for the current administration to propose these amendments. 

  • Increased hostility and threats against human rights defenders. Over the years, many human rights defenders, regardless of their sexual orientation and gender identity, have been reported to the police and the state Islamic Departments for being associated with LGBTIQ activism or affirming the human rights of LGBTIQ persons.The state has also taken heavy handed actions against human rights defenders for promoting inclusion of LGBTIQ persons and questioning state policies and activities in relation to LGBTIQ persons. Case in point, the organizers of the Women’s March were investigated under the Sedition Act and the Peaceful Assembly Act because of the visibility and presence of LGBTIQ persons. 

These amendments raise many concerns in relation to human rights defenders’ ability to carry out their human rights work, as inclusion of LGBTIQ persons or efforts to hold the state accountable could be deemed as acts against the law. We are concerned that the increasing hostile environment against LGBTQ persons will legitimize use of other laws and punitive measures against human rights defenders. 

In conclusion, we reiterate our call for:

  1. The Prime Minister’s Department to drop the proposed amendments given the adverse impacts on all Muslim persons and LGBTIQ persons in Malaysia. 
  2. Suhakam to carry out a study on the compatibility of the state Syariah Criminal Offences Act and Enactments with the rights protected under the Federal Constitution and international human rights standards set by the United Nations, as articulated in international instruments and conventions. 
  3. Members of Parliament (MP) to call for a cost-benefit analysis and a human rights assessment of the proposed amendments if they are tabled when Parliament reopens. Further, MPs should also call on public consultations to fully explain the extent of the proposed amendments. 

Endorsed by:

  1. Justice for Sisters 
  2. All Women’s Action Society (AWAM)
  3. Amnesty International Malaysia
  4. Association of Women Lawyers
  5. Beyond Borders Malaysia
  6. Center for Independent Journalism (CIJ) 
  7. Community Women & Workers Network (CWWN)
  9. Freedom Film Network
  10. KRYSS Network
  11. Legal Dignity
  12. Lingkaran Islam Tradisional (LIT)
  13. PELANGI Campaign
  14. Persatuan Sahabat Wanita, Selangor (Friends of Women Organisation, Selangor)
  15. PLUHO, People Like Us Hang Out!
  16. The KLSCAH Women Division
  17. Sarawak Women for Women Society
  18. Sisters in Islam (SIS)
  19. UMANY

A Response to Criticism Against SUHAKAM’s Study “Feasibility of Having Legislation of the Recognition of a Third Gender in Malaysia”

Legal gender recognition is the process of changing the name and gender information on official key documents and in registries, in order to recognize a person’s gender identity. This process recognizes transgender and non-binary persons as equal human beings with dignity and affirms their right to identity and self determination. 

Discrimination caused by lack of legal gender recognition 

The non-recognition of gender identity in legal documents opens transgender persons up to multiple forms of discrimination, violence, degrading and humiliating treatment, fraud and other forms of exploitation. Simple, every day tasks like going to the bank can cause extreme anxiety for a trans person who has to reveal that they are transgender and answer questions regarding their gender identity. 

Another example documented in ARROW’s  LGBT Monitoring Report relates the humiliating experience of a trans woman and her friends who were made to stand in gender-segregated lines based on their gender marker in their identification cards during a club raid. They also faced verbal violence, including being told that they are men. 

The Suhakam study “Discrimination Against Transgender Persons based in Kuala Lumpur and Selangor (2019) shows that 57% of the respondents faced pre-employment discrimination. Respondents were, among other things, subjected to intrusive questions about their gender identity, bodies and appearance, and the difference between their physical appearance and the gender identity stated in their identity cards. 

Doxing or non-consensual disclosure of transgender persons’ gender identity, as well other forms of violation of privacy by state and non-state actors takes place with impunity. There are many instances of Malaysian state agencies that have directly violated transgender and intersex persons’ privacy by disclosing their gender identity in to the public. In 2020, state religious agencies obtained Nur Sajat’s legal documents from the National Registration Department, disclosing her deadname and assigned sex to the media without her consent, resulting in the deadnaming and misgendering of Sajat in the media, and prosecution against her based on her gender identity. Similarly, doxing can also potentially expose transgender persons to vigilantism.

In the past, state agencies have also proposed medical tests that are not evidence- or rights-based to determine a person’s gender identity. Gender identity is self determined. Just like cisgender people, transgender, non-binary and gender diverse persons do not need to be subjected to tests to determine their gender identity. Research shows that as human beings we are able to articulate and express our gender identity from childhood. 

The International Classification of Diseases (ICD-11) removed all trans-related diagnoses from the mental disorders chapter as “evidence is now clear that it is not a mental disorder, and indeed classifying it in this way can cause enormous stigma for people who are transgender…” 

86% of the respondents of the Suhakam study stated that they would prefer to change their gender marker in their identification cards. These are the provided reasons:

  • Their physical features conformed to male or female but this was not reflected in their identification card;
  • To be recognised as woman or man;
  • To avoid discrimination based on gender;
  • To ease daily affairs such as movement, access to education and religion;
  • To reflect current identity in their identification card;
  • It would give benefits, advantages, comfort, confidence and boldness to them;
  • It would be easier to obtain jobs;
  • To avoid confusion of the (respondents) gender identity. 

Legal gender recognition will have a positive impact on transgender persons lives:

  1. Ability to live with dignity and feel a sense of safety and security. The Suhakam study shows 46% of the respondents stated that they don’t feel safe living in Malaysia because of lack of acceptance, discriminatory laws, discrimination, lack of life security, unable to change gender marker in IC, increased vulnerability to arrest, among others. Meanwhile, 72%  have thought of migrating to countries that provide better protection for trans people, legal gender recognition, accessible trans healthcare services, and an environment where trans persons are able to express themselves without hesitation. A gender recognition law will acknowledge transgender persons’ gender identity and contribute to transgender persons’ safety. 
  1. Significantly improve mental health and well-being. Transgender persons and other marginalized groups face minority stress as a result of the discrimination, violence and marginalization that they experience. In addition, transgender and non-binary persons experience varying levels of gender dysphoria, a form of anxiety and stress as a result of binary norms that trans and non-binary people are subjected to. For a transgender person, minority stress and gender dysphoria can surface when they are misgendered and mistreated because of their gender identity. 
  1. Strengthen families and foster family acceptance. Legal gender recognition can help lead to acceptance from family members, and reduce the isolation faced by transgender persons, thereby strengthening  the family institution. One of the main drivers of discrimination, violence and suppression of gender identity and gender expression against transgender persons by family members is fear of discrimination, violence and marginalization of transgender persons. Thus, legal gender recognition and affirming laws can foster wider acceptance of transgender persons. 
  1. Opens doors for protection and access to all areas. Legal gender recognition will address multiple forms of discrimination and contribute to transgender persons gaining greater access to employment, healthcare services, housing, education and other areas of life without discrimination and fear. 

Myth Busting! Debunking JAKIM’s 6 reasons against legal gender recognition in Malaysia 

  1. Membuka ruang kepada perkahwinan sejenis meruntuhkan institusi keluarga (Giving opportunity to same-sex marriage which destroys family institutions)

Families exist in a variety of forms, including nuclear families, single parent families, extended families, step families, and same-sex families. The notion that the ideal family is made up of one mother and one father is outdated, heteronormative and cisnormative, and undermines the reality in which many families find themselves today. 

In Malaysia, many transgender persons experience isolation, discrimination and violence at the hands of family members because of the fear of social stigma.  Legal gender recognition will encourage family acceptance, and be the first step towards addressing the discrimination and marginalization that transgender persons experience.

Transgender persons also have the right to create families and become parents. Research reveals that transgender parents are just as fit parents as heterosexual cisgender parents, and there is no difference between children raised by cisgender heterosexual parents and non cisgender parent, proving that good parenting is not based on gender identity and cisnormative gender roles. 

In reality, there are many children raised by transgender parents who respect and love their parents regardless of their gender identity. The US National Discrimination Survey (2011) shows that 58% of transgender parents found their relationships with their children to be the same or better and 13% found that some things were better and some things were worse after transitioning or sharing their gender identity with their children.    

Research also shows that the quality of the child’s relationship with a parent or parents, the quality of parents’ relationship with each other or other adults and economic factors are among major factors that influence a child’s development and happiness. 

While there are diverse views on the marital institution, marriage equality does not destroy the family institution. Instead, it expands and recognizes the diversity of relationships and family units. Furthermore, it provides adequate protection for persons in diverse relationships. Research shows marriage equality brings positive outcomes in society, among others, decreased mental health burden, increased access to health care among LGBTIQ persons. 

The same sex marriage panic or the anxiety around recognition of transgender persons by a group of people must not be a barrier in addressing discrimination against transgender persons. As we have seen in other countries that have allowed marriage equality or any other forms of union between people of diverse gender, cisgender heterosexual people and LGBTIQ persons co-exist peacefully. 

  1. Menyebabkan jenayah hubungan sejenis (Causes same-sex crime)

Firstly, consensual sexual relations between adults should not be a crime. While consensual sexual relations between adults are criminalized under the laws in Malaysia, such criminalization violates the right to live with dignity, privacy and freedom to be free from violence under international laws and the Federal Constitution. 

Secondly, the notion that transgender persons engage in ‘same sex activities’ reinforces stigma, discrimination and violence against trans people and their partners. Regardless of who trans people are in a relationship with, they are seen as being in a same sex relationship. This can have an othering effect, and often denies the gender identity of the trans person. By using the term ‘same sex activity’ to describe transgender relationships, it forces trans people into their sex assigned at birth, thereby negating trans people’s identities. 

  1. Ketidakadilan kepada jantina asal (An unfair advantage)

Transgender persons do not have any advantage over persons of other gender identity. In reality, transgender persons are denied access in all spaces, be it education, sports, economy, politics, among others. As a result, they are left behind in all areas because of their gender identity. 

The assumption of unfair advantage stems from the conflation of sex and gender as well as flawed biological assumptions of transgender persons. This often results in further discrimination, denial of opportunities, and access to services and facilities. 

There is no scientific evidence that shows trans people have an advantage in the area of sports. The assumption that testosterone levels allow better performance of transgender athletes is unfounded. Scientific evidence shows “studies of testosterone levels in athletes do not show any clear, consistent relationship between testosterone and athletic performance. Sometimes testosterone is associated with better performance, but other studies show weak links or no links. And yet others show testosterone is associated with worse performance.” Biology is only one factor among many other factors that determine the ability to excel in sports, including time, resources, training, and support. 

The notion of ‘jantina asal’ or ‘original sex’ must be unpacked. If sex and gender are two seperate categories, the notion of ‘original sex’ does not make sense. 

More often than not, sex and gender are often confused as being the same thing, due to lack of access to accurate information, limitations in language, and the lack of comprehensive sex education in schools cirriculums

Sex or sex characteristics refers to a combination of genitals, gonads, hormone levels and chromosome patterns. Sex is often is seen as binary, XY is for male and XX is for female, but we also see more combinations than that in real life. Likewise, the existence of intersex individuals are just as natural. Gender can vary in individuals regardless of the sex they are born with.

Gender refers to how we identify in terms of our identity as girl/woman, boy/man, non-binary, or others. Gender, for many, is not a clear cut box or category, which they can fit themselves in. Gender is unique, personal and complex. Often, our gender identity is guessed and assumed at birth based on our genitals as a guide. However, it is important to clarify that our genitals do not determine our gender identity. This categorization of gender identity based on genitals is a categorization based on perceived ideas of procreation. 

The study of gender is multidimensional, and not limited to sociology. Gender, in particular gender identity, is studied in the field of psychology and neuroscience. Multiple research show that sex and gender identity are two seperate categories. 

  1. Menyebabkan penipuan jantina (Causes fraud)

Regardless of gender identity and sexual orientation, any individual can experience crime and violence of any form. However, LGBTIQ persons enjoy limited access to justice and due process because of discrimation from law enforcers, the criminalization of their identities under civil and syariah laws, social stigma and media sensationalism of LGBTIQ related news. 

LGBTIQ persons find it especially challenging to report cases that involve other LGBTIQ persons as perpetrators due to fear of perception of the non-LGBTIQ persons, risks of further stigmatizing and sensationalizing the LGBTIQ population. 

When conservatives use crimes reported by LGBTIQ persons against LGBTIQ persons, it causes adverse harm on LGBTIQ persons, from restriction of access to justice, reinforcement of negative perception of LGBTIQ persons by the general public and fear mongering. Likening gender recognition with fraud can cause further stigma and make it challenging for transgender people to live with dignity and safety, as transgender persons will continue to be seen as frauds and criminals, which in turn puts the lives of transgender persons at great risks. 

Catfishing, fraud and other crimes affect transgender persons and must be addressed separately. Such incidents cannot be used to punish and deny an entire community from having recognition of their gender identity, which will allow them to live with dignity. 

  1. Menafikan prinsip agama Islam yang melarang perbuatan transgender (Denying the teachings of Islam that forbids transgender acts)

There are diverse views on gender identity and sexual orientation in religion. During the Prophet Muhammad’s (pbuh) time, there were no prosecutions of gender diverse persons based on their gender identity. In fact, the Prophet prohibited excessive and punitive punishments against believers..   

Both the Qur’an and hadith indicate that there is a precedent that the mukhannaths or gender-diverse people were treated as women and allowed to be in the same room as women, in this case, being with the Prophet’s wives in their living quarters prophet’s room:

Sunan Abi Dawud 4107 states, ‘A mukhannath used to enter upon the wives of the prophet. They (the people) counted him among those who were free of physical needs.’

“And tell the believing women to… guard their private parts and not expose their adornment except that which appears thereof and to wrap [a portion of] their head covers over their chests and not expose their adornment except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess, or those male attendants having no physical desire, or children who are not yet aware of the private aspects of women-“ Qur’an 24:31

This particular Hadith in reference to being transgender has been narrated by many Islamic scholars like Ibn Majah, Al-Bukhari, Al-Tirmidhi, Ibn Hanbal and Abu Dawud. There is considerable evidence that in pre-colonial Islamic communities, mukhannath served as servants as long as they had no sexual interest in women. They would be allowed to enter women-only spaces, such as harems and other exclusively female spaces. Males whose effeminate qualities are innate and natural, and who do not experience sexual attraction towards women, receive no blame, guilt or shame as they are not considered sinners and should not be punished. Because of the regularity of mukhannath hired in women’s spaces, there were men who sought to take advantage because they lusted after women and pretended to be mukhannath in order to gain access into women’s spaces. 

Al Tabari took it as an example that the Prophet did not forbid a particular mukhannath, Hit, from entering the women’s quarters until he overheard the servant giving a description of the women’s bodies in great detail. Hit was later prohibited from the house because they had breached the trust of the Prophet, but not because of their effeminate identity. Rather the Prophet’s prohibition was a response to their actions in this particular situation. Clearly, just like any other person, the principles of moral and ethical behavior were also applied to them and did not entitle them to speak or behave inappropriately. This hadith narration is commonly used by conservative Muslim scholars to justify hatred for effeminate men and transgender people as it is used as proof that Muslims should not allow them in their houses

Islam has always taken sides with the oppressed rather than with the oppressor since the day of its establishment, and this includes taking a stand against transphobia, xenophobia and misogyny. Conservative scholars argue that changes to one’s body are only allowed under medical circumstances, such as in the case of khunsa (intersex people), but is this not in contradiction of the principle that “God does not make mistakes”? Not only that, the fact that being transgender has been vigorously explored in a variety of science discourses in the last century as a medical, psychological and socio-cultural phenomenon automatically nullifies the conservative argument that “changes in one’s body are only allowed under medical circumstances”. With this coherent argument, Muslim transgender people should be allowed to receive treatment too, as clarified by Sheikh Tantawi, the Grand Mufti of Egypt in his 1988 fatwa that allowing for sex reassignment surgery. 

  1. Mencemari hak asasi manusia (Desecration of human rights)

Suhakam’s aim in conducting the research is to promote and protect the human rights of all persons, including transgender persons. Legal gender recognition upholds transgender and non-binary persons’ right to self-determination, dignity, equality, and non-discrimination, which are guaranteed under Article 5 and 8 of the Federal Constitution. 

In an application by a trans man to change his name and gendered details in his identification card before the Kuala Lumpur High Court in 2016, Justice Nantha Balan affirmed the applicant’s constitutional rights under Article 5 of the Federal Constitution.  

“The Plaintiff has a precious constitutional right to life under Article 5(1) of the Federal Constitution and the concept of ‘life’ under Article 5 must necessarily encompass the Plaintiff’s right to live with dignity as a male and be legally accorded judicial recognition as a male.” 

Similarly, in India’s Supreme Court decision in the case by the National Legal Services Authority of India (NALSA) to legally recognize transgender and gender diverse persons, the Court noted that the non-recognition of gender identity deprives transgender persons of the right to dignity, equality, non discrimination and freedom of expression. The Judge referred to international human rights treaties and the Yogyakarta Principles in its decision. In particular, the Judge noted that: 

“Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender [person’s] sense or experience of gender is integral to their core personality and sense of being. Insofar as I understand the law, everyone has a fundamental right to be recognized in their chosen gender.”

The United Nations recommends the following five legal obligations for governments in order to protect the rights of LGBTIQ persons:  

  • Protect people from homophobic and transphobic violence. 
  • Prevent the torture and cruel, inhuman and degrading treatment of LGBT persons 
  • Prohibit discrimination on the basis of sexual orientation and gender identity, including enacting legal gender recognition laws 
  • Safeguard freedom of expression, association and peaceful assembly for LGBT and intersex people
  • Repeal laws criminalizing homosexuality, including all laws that prohibit private sexual conduct between consenting adults of the same sex.

End all persecution against Sajat immediately

Justice for Sisters (JFS) is extremely concerned about the latest development in relation to Sajat’s prosecution by Selangor Islamic Religious Department (JAIS) for insulting Islam and wearing female attire under the Selangor Syariah Criminal Offences Enactment 1992. In an announcement by JAIS Director, Datuk Mohd Shahzihan Ahmad, JAIS had deployed 122 officers to search and arrest Nur Sajat. 

We are astonished by the financial and human resources that are being allocated for this search and arrest operation against Sajat. All these actions by JAIS are extreme and demonstrate their overzealousness in arresting and detaining Sajat at all costs for merely expressing herself and her gender identity. 

JFS questions the two charges against her. Her charges are allegedly connected to a religious charity event that she organized in 2018, where she wore a baju kurung. Her wearing a baju kurung is deemed as an insult to Islam. Further, as a result of the series of doxing efforts by both state and non-state actors, the recorded identity on her birth certificate as well as her identity card was disclosed to the public, setting the stage for her prosecution. 

The continuous prosecution against Sajat based on her gender identity is a violation of Article 8, which safeguards persons from gender-based discrimination. While the state attempts to view gender through a binary lens, gender is a multilayered and umbrella term which includes, among others: 

  • gender identity – how a person identifies themselves. Gender identity is different from sex. Sex refers to our body [structure], meanwhile gender identity refers to how a person sees themselves along the feminine masculine spectrum. Gender identity manifest through self expression; 
  • gender expression – how a person expresses themselves; and 
  • gender stereotypes – harmful roles, generalizations and assumptions based on gender identity that may result in discrimination, violence and marginalization.  

Underlying the state persecution against Sajat is the criminalization and non-recognition of trans, intersex and non-binary persons. The persecution also raises serious questions regarding Muslim trans, intersex and non-binary persons’ freedom of religion in Malaysia. It appears as if the state only allows LGBT persons to exist if they fall into the state’s definition of a Muslim person, and requires non-gender conforming individuals to ‘change’, ‘supress’ or ‘rehabilitate’ themselves, all of which have been rejected by international medical and human rights bodies due to its harmful effects on the well-being of LGBT people. In fact, many countries now have laws against conversion therapy or practices to change a person’s actual or perceived gender identity and sexual orientation. Malaysia’s practices and treatment of LGBTQ persons in Malaysia are in contravention with these international laws, norms and practices. 

While some may say that Sajat had brought this upon herself for not complying with court dates, there are deeper structural issues that need to be questioned and unpacked. 

It is also important to understand and empathize with the mental health burden and stress experienced by persons who are prosecuted because of their gender identity, gender expression and/or sexual orientation. The gendered and gender binary practices in the syariah courts deny trans people their dignity and as result add barriers for them to seek redress and remedies. 

The issues that we are seeing in relation to Sajat’s case are all too common based on our experience in providing urgent response for trans and LGBTQ persons. Many facing persecution have taken risky and harmful coping measures when they are experiencing state prosecution, as the fear–of being imprisoned in male prisons, having their head shaved, the societal condemnation, being stripped away of their autonomy, freedom and dignity–are all too real for them. 

Given all these harms, we call on the Selangor state government to end all prosecution against Sajat immediately.             

We also ask the media to not deadname (use of name assigned at birth without consent) and misgender trans, intersex and non-binary persons. It is extremely important that the media takes measures to respect the identity and privacy of a person’s identity based on respect for the universal principle of self determination.

The Federal Court decision on Selangor’s Section 28 upholds constitutional protection for all

The LGBTQ+++++ Network in Malaysia welcomes and applauds the decision by the Federal Court today in the review of Section 28 of the Selangor Syariah Criminal Offences Enactment 1995. Section 28 is one among many state and federal laws that criminalise consensual sex “against the order of nature,” with a maximum punishment of RM5,000, three-year jail term, six strokes of cane or a combination of them. This section has often been used against marginalised and persecuted communities on the basis of sexual orientation and gender identity. The judgment provides justice for them, as well as upholding clearly, the democratic principles that underpin the primacy of the Federal Constitution. This decision not only has an impact on the LGBTQ community who face multiple forms of discrimination and abuse, but also for all in this country as it clearly reaffirms democratic checks and balances needed for enacting criminal laws that have huge and lasting impact on our life and freedoms. 

“We are extremely pleased with this historic development. It marks a monumental progress for LGBTI rights in Malaysia. We have worked hard for so many years to live in dignity without fear of prosecution,” said Numan Afifi. 

In a unanimous decision, the judges declared that the Selangor state legislative assembly does not have the legislative competence to enact Section 28. The decision makes clear that state legislative assemblies do not extend to making criminal law as it falls under the jurisdiction of the Parliament as per the Federal List. 

“At first I was very nervous and worried that there would be a decision not in favour of us, but the final result was very exciting. I think this decision is absolutely empowering, it will definitely empower the minority community in Malaysia. This decision reminds everyone, LGBTQ people are human like every person living in Malaysia. We deserve our basic human rights to be protected in our country too.

With today’s decision, we are reclaiming our rights, and it will definitely encourage us to continue our journey in reclaiming our rights. Really thanks to the legal team, NGOs, volunteers that have made a lot of effort on this,” said Chong Yee Shan, Diversity

The decision upholds the primacy of the Federal Constitution, that no laws shall contravene the Federal Constitution. Section 28 and similar Syariah provisions have disproportionately subjected individuals with perceived diverse sexual orientations and gender identities to various forms of state enacted violence, including arbitrary arrest, violation of privacy, dignity and equality under the law. These laws have been used to increasingly target LGBTQ people, who have faced raids, arrests, imprisonment, and recently, public caning. Before this judgement, LGBTQ people are vulnerable to state prosecution and targeted persecution from multiple directions – the Penal Code, and the many iterations of Syariah law that penalises consensual private acts. This is a critical move towards ending double criminalisation and arbitrariness under the law.  

Discriminatory impact also extends to the decreased quality of mental health and well-being, as well as increased financial burden amongst marginalized communities. Consequently, this has resulted in parts of the community that have resorted to self-harm and taking life threatening risks to avoid arrest and humiliation. The judgement brings justice to persons who are vulnerable to prosecution and persecution because of their identities, and for engaging in consensual private acts. 

“Over the course of time, we have dealt with many victims who have suffered under this law – some of them lost their jobs, were kicked out by family members, ended up being homeless, and became suicidal as a result of the enactment and implementation of this law. After years of hopelessness and suffering, they finally can receive an ounce of justice from this decision,” said Gavin Chow, PLUHO

This decision truly paves the way to upholding human rights and justice for all. It restores confidence in the judiciary and reaffirms the democratic principles underlying the law. The Federal Constitution guarantees the rights of everybody, no matter our race, religion, gender, or sexuality. We call for the Selangor state and other states to follow the decision by the Federal Court. Justice must be served for all.

With this, we are reminded of the recent deportation of 1086 Myanmar nationals by the Immigration Department this week even after the stay was obtained from the High Court. It is important for the Malaysian government to comply with court rulings, to ensure justice, equality and dignity for all. We stand firmly in solidarity with the migrant and refugee communities. 

We also request for the media to anonymize the name of the applicant and refer to the case as the Selangor Section 28 case. 

Proposed amendments to further criminalize LGBTQ persons by Deputy Minister of Religious Minister are unconstitutional

Justice for Sisters is extremely concerned by the continuous and escalating discriminatory statements against trans and LGBT persons by Ministers at the Prime Minister’s Department. In the latest statement on Tuesday, Ahmad Marzuk, the Deputy Minister of Religious Affairs proposed amendments to the Syariah Courts (Criminal Jurisdiction) Act 355 in order to increase punishments against LGBT people. In a follow up statement yesterday, Marzuk added that the amendments will focus on three things:

  1. Increasing punishment that can be imposed under the Syariah Criminal Offences Enactment 
  2. Including gender change as an offence 
  3. Social media content that are deemed indecent and obscene will be placed under syariah online offences, a new category 

The proposed amendments call into question the state Islamic Department’s jurisdiction, the state legislature’s legislative competence, and the current administration’s commitment to promotion, protection and fulfillment of human rights. 

Provisions in the Syariah Criminal Offences Enactment have been criticised for criminalizing identities and acts that are victimless, for not being in compliance with the Federal-State lists in the Federal Constitution, and for violating international human rights standards. The proposed amendments intersect with federal citizenship, national registration, health, and freedom of expression, all of which fall under the Federal List, not the state list. 

Many of the provisions related or commonly used against LGBTQ persons overlap with Federal laws. Case in point, the constitutional challenge of Section 28 of the Selangor Syariah Criminal Offences Enactment at the Federal Court argues that the State Legislative Assembly does not have the power to enact laws that do not fall under the State List. Further, Section 28 overlaps with Section 377 of the Penal Code.  

The proposal by Marzuk to introduce a syariah online offences component demonstrates overreach, as it overlaps with MCMC’s roles and functions, including: 

  • Regulating all matters relating to communications and multimedia activities not provided for in the communications and multimedia law;
  • Consider and recommend reforms to the communications and multimedia law   

In addition, the Malaysian Multimedia and Communication Commission’s (MCMC) Content Code, a self-regulation guideline with good practices and standards for content dissemination for industry players, under multiple sections discourages abusive and discriminatory content, hate speech in relation to sexual orientation and gender among others. The Code also discourages negative portrayal of groups of persons based on sexual orientation and gender. The MCMC’s Consumer Complaints Bureau allows members of the public to make complaints against offensive and abusive content. Social media platforms already have internal mechanisms that allow reporting of abusive content based on sexual orientation and gender, although its efficacy can be improved. In July 2020, Facebook and Instagram announced that the platforms will prohibit posts that promote conversion therapy of LGBTQ persons, which the Malaysian government actively promotes.

Meanwhile, many of the punishments stipulated under the Enactment already amount to torture. In addition, many violations of human rights against LGBT persons by enforcement officers of state religious departments have been documented during arrest and detention, including verbal abuse, sexual violence, physical violence, among others with impunity. Thus, not only is this proposal potentially unconstitutional, it will also mark another step backwards for human rights standards in Malaysia. 

Meanwhile, the proposal to criminalize ‘gender change’ effectively criminalizes a person’s identity and decision to transition. This fundamentally violates trans and non-binary persons’ right to self-determination, bodily autonomy, dignity, privacy, access to healthcare, ability to seek employment, housing, education and other fundamental rights, services and opportunities, resulting in further marginalization of trans and non-binary persons. A series of fatwas on trans people released from 1982 onwards declare trans people as haram (illegal) and prohibit gender affirmation procedures. These fatwas have had an adverse and overwhelming impact on availability and accessibility to trans specific health care, as well as their ability to change their name, gender marker and other gendered details in their legal documents. 

Impact of criminalization and structural discrimination 

The 2019 Suhakam Study on Discrimination against Transgender Persons based in Kuala Lumpur and Selangor documents that 20 of 100 respondents have tried to change their gendered details in their legal documents, however, only 6 were fully or partially successful. 13 respondents shared that their applications were rejected or not successful. More recently, in 2017, the Court of Appeal overturned a decision by the Kuala Lumpur High Court, which allowed a trans man to change name and gendered details in his legal documents, following an appeal by National Registration Department (NRD). 

86 respondents shared that they would prefer to change gendered details in their legal documents so that their gender identity is recognized, to avoid gender based discrimination, ease daily activities and  movement, increase self-esteem and confidence, among others. The study also shows 72 respondents have thought of migrating to other countries due to among others, lack of openness and legal framework to protect trans people, ability to change their gender marker, access to trans related healthcare services, access of employment, freedom of movement in Malaysia. 

It is clear that these proposed amendments are not evidence and rights based, punitive in nature and rooted in majoratian views. Overall, these proposed amendments will further marginalize and violate LGBTQ persons’ freedom of expression, right to self determination, right to be free from violence, right to equality and to live with dignity. . 

We are also deeply concerned by the call by the Deputy Minister to report LGBT people, his instructions to the Islamic Departments to enforce the laws on LGBT people and the establishment of a task force for Muslim LGBT related issues. We believe these are completely counterproductive to the national and global efforts to flatten the COVID-19 curve and ensure all persons have access to healthcare services, especially as we are moving towards vaccination. These unwarranted discriminatory statements and actions further erode trust in public institutions and create barriers in accessing healthcare services. A CERiA research shows low health seeking behaviour, lower self esteem and poor mental health in queer men because of fear of prosecution under Federal and state syariah laws, familial and societal pressure to marry and ‘return to the right path, among others.

Justice for Sisters has documented multiple accounts of trans women outside of Kuala Lumpur and various religious backgrounds feeling anxious and fearful of being in public places, using public facilities, being reported to authorities by their neighbours, and seeing police officers and vehicles following Dr Zulkifli ‘s statement in which he gave full license to JAWI to arrest and educate or rehabilitate transgender women. Similarly, Marzuk’s statement has also resulted in many feeling of exhausted and exasperated by the continuous political scapegoating and persecution, increased anxiety among Muslim LGBT persons over the prospective impact of the amendments, among others. 

In this time of rising cases of COVID-19 and climate disruption, the state must more so ensure all measures by the government are legal, proportionate, necessary, and non-discriminatory. Through the Trans Solidarity Fund, Justice for Sisters and SEED’s COVID-19 relief effort, we have gathered that trans women in some context lack of access to humanitarian aid. Some, on the other hand, were hesitant to access humanitarian aid due to fear of stigma and discrimination because of their gender identity and expression. 

LGBTQ human rights groups have been seeing a surge in cases of LGBTQ persons seeking housing as a result of being disowned or violence and restrictions by family members as well as termination of employment. Related to that, LGBTIQ groups are also observing higher mental health burden among LGBTQ persons and are receiving higher requests for mental health support, including anxiety, depression and suicidal ideation and attempts. These continuous and escalating statements have a profound impact on the already deteriorating well-being and health of LGBTQ persons in Malaysia. With the increased vulnerability to violence and increasing trust deficit towards public institutions as a result of these statements and other state actions, LGBT human rights groups bear the burden of responding to these cases and filling massive gaps in services for LGBT persons with no or very limited resources. 

It is the present administration’s duty and obligation to ensure the rights of all persons are respected, fulfilled and protected. As such, we urge the government to immediately: 

  1. Stop all prosecution and initiatives to prosecute LGBT persons based on sexual orientation, gender identity and gender expression  
  2. End all discriminatory speeches towards LGBTIQ persons 
  3. Engage Suhakam and LGBT human rights groups to understand and address the systemic impact of criminalization and pathologization of LGBTQ persons in Malaysia 
  4. Place a moratorium on current laws that criminalize LGBT people to ensure access to healthcare, justice, and to assure personal security and safety as well as freedom from violence 

We reiterate the calls by other civil society organizations and Suhakam to ensure equal dignity and protection of LGBTQ persons. As highlighted by Lawyers for Liberty, there are many good practices from which Malaysia could learn from, including the Pakistan Transgender Persons (Protection of Rights) Act of 2018. Finally, we once again urge the government to be guided by evidence, lived experiences of LGBT persons and human rights standards in addressing increasing homophobia and transphobia in Malaysia as well as discrimination, violence and marginalization of LGBTIQ persons. 

Adopt an evidence and rights based approach in addressing the increasing violence against trans and gender diverse persons

In conjunction with Transgender Day of Remembrance (TDOR) on 20 November 2019, we commemorate the lives of trans and gender diverse persons lost to hate crimes and anti-transgender violence. 

According to the Trans Murder Monitoring (TMM), globally, 350 trans and gender diverse people were reportedly murdered between 1 October 2019 and 30 September 2020, a 6% increase in reported murders from last year. The report shows: 

  • 98% of those murdered globally were trans women or trans feminine people;
  • 62% of murdered trans people whose occupation is known were sex workers;
  • 38% of the murders took place on the street and 22% in their own residence;
  • The average age of those murdered is 31 years old; the youngest being 15 years old.

In Malaysia, at least 2 cases of murder of trans women were reported between November 2019 and October 2020:

May/June 2020 – a trans woman from Indonesia was found dead in her room after she went missing for a few days. Her neighbours noticed the odor of her decomposing body and notified the police. She was allegedly murdered by her boyfriend, who is also a foreigner. 

June 2020 – a young trans woman in Johor Bahru was found dead in her home after her friends contacted her house owner as she was ‘missing ‘ for a few days. The case was investigated by the police. The outcome of the case is unknown. 

These are some key cases and trends of violence against trans women that we have documented in 2020:

  1. Violence by family members. In January 2020, a young trans woman’s plea for help circulated in WhatsApp groups and social media. She was physically assaulted and imprisoned in her house by her family members. The police, who had initially made a home visit reportedly threatened to arrest and beat up the victim if she continues to be herself. They advised her to listen to the family members. Following some interventions by human rights groups, the police rescued the young trans woman. 
  1. Violence from members of the public. In February 2020, three cases of physical assaults by groups of men were reported – two cases occurred in Kedah and one case in Perak. The cases involve stabbing and physical assaults. In one of the cases in Kedah, the trans woman was assaulted by a group of men pretending to be police officers in a public place. In the case in Perak, a trans woman was assaulted with a metal rod. Of the 3 cases, only one of them lodged a police report. The outcomes of the case are unknown. The other two did not lodge a police report due to trauma and fear of self-incrimination. 
  1. Trans women sex workers are especially vulnerable to violence. A number of cases of assault by clients or people pretending to be clients have been reported all over Malaysia. The criminalisation of sex work and transgender women under the law create multiple barriers for trans women sex workers to access redress and report cases of violence. 
  1. The sexual objectification and stereotype of trans women as sex workers increases their vulnerable to sexual violence and harassment in public, private, online and other spaces. This includes among others, being stalked, harassed, molested, and flashed. In one case, a trans woman who owns a shop faced sexual harassment and violence by multiple men who visit her shop. In another case, a man broke into a trans woman’s house multiple times to coerce her into having sex with him. She eventually moved to a different state to escape the harassment. Both women did not report the cases due to personal previous negative experience with the police when lodging police reports, fear of victim blaming, lack of confidence in the police, among others.
  1. Trans women are vulnerable to doxxing and having their photos being used for online scams. In several cases, trans women have been confronted by strangers who were affected by the scam with hostility, increasing concerns of violence. 

Trans and gender diverse people are also hard hit by the Covid-19 pandemic. Aside from being disproportionately affected economically, many trans and gender diverse living with unaccepting family members are vulnerable to violence and increased mental health issues. SEED Malaysia observes an increase in trans women seeking shelter due to violence and lack of acceptance by family members.

Our documentation shows while trans and gender diverse persons face multiple forms of violence, most cases are not reported. Many trans women, especially sex workers lack access to justice due to the multiple forms of criminalisation under the laws, state policies that promote ‘rehabilitation’, and the increasing social stigma, perception and attitudes towards transgender people. 

In addition, previous negative and traumatic experiences with the police and state officials deter trans and gender diverse persons from seeking support and assistance. As a result, these violence that could have been prevented, are prolonged with impunity and remain invisible. Further, trans and gender diverse persons are burdened to resolve the violence and violations that they face on their own, deepening their marginalisation.

The sense of marginalisation, neglect, and lack of security and safety experienced by trans and gender diverse persons is further aggravated by exclusionary, non evidence and rights based statements by state actors. In line with the government’s vision of shared prosperity and commitment to leave no one behind, we recommend:

  1. Human rights and gender sensitisation training for police officers and government staff to reduce stigma and mistreatment against trans and gender diverse persons. 
  2. Cases of crimes against trans and gender diverse persons are currently recorded based on their gender identity, instead of according to the assigned identity on the national registration identity card (NRIC). As a result, there is a lack of documentation and analysis of cases of crimes against trans and gender diverse persons. 
  3. Allow trans and gender persons to change their gender marker on their legal documents
  4. The government to implement the CEDAW Concluding Observation in relation to trans women, which include: 
    • Adopt anti-bullying policies based on alternative strategies to address bullying, such as counselling services and positive discipline, and undertake awareness-raising measures to foster equal rights for LBTI students;
    • Amend all laws which discriminate against LBTI women, including the provisions of the Penal Code and Syariah laws that criminalise same-sex relations between women and ‘cross-dressing’;
    • Apply a policy of zero-tolerance with regard to discrimination and violence against LBTI women, including by prosecuting and adequately punishing perpetrators;
    • Expedite measures to discontinue all policies and activities which aim to “correct” or “rehabilitate” LBTI women.

download & share these Transgender Day of Remembrance (TDoR) visuals

In conjunction with Transgender Day of Remembrance (TDOR) on 20 November 2019, we commemorate the lives of trans and gender diverse persons lost to hate crimes and anti-transgender violence.

This year, at least 2 cases of murder of trans women were reported and many cases of hate crimes were documented in Malaysia. Globally, 350 trans and gender-diverse people registered murdered between 1 October 2019 and 30 September 2020. Of which,

  • 98% of those murdered globally were trans women or trans feminine people;
  • 62% of murdered trans people whose occupation is known were sex workers

Together we can end violence against trans and gender diverse persons in Malaysia and globally. We encourage you to download and share these visuals via social media or other platforms with your friends and family members to help raise awareness regarding the violence experienced by trans and gender diverse people.

TDoR visuals in BM

TDoR visuals in English

Respect trans women & end all prosecution against them

We are deeply concerned by a raid of a birthday party by the Kedah Islamic Department on 27 October 2020, where 30 transgender women attendees of the 100 attendees were singled out and given notice to report back at the Kedah Islamic Department on separate dates to be investigated under Section 26, which penalises ‘male persons wearing female attire in a public place’.

The organiser, who was celebrating his birthday, was also handed a notice to report back to the department to be investigated under Section 31 for ‘encouraging vice’. 

The raid also resulted in the private event being abruptly ended due to instructions by the state Islamic Department. The raid was carried out with the police, and news reports suggest that some media outlets were also present at the raid.

Following the constitutional review of Section 66 of the Negeri Sembilan Syariah Criminal Offences Enactment in 2015, there has been a significant reduction of cases of arrest under the ‘posing as a man’ state enactments based on our collective monitoring. However, we have observed a resurgence  of raids and arrests of transgender women in the last year. In most cases, the raids are a result of an alleged ‘tip-off’ or complaint, and the trans women are mostly subjected to ‘counselling’. This is a concerning trend.

Trans women are women & gender is diverse

First and foremost, trans women are not pretending, posing or acting as women. They are women, and as such express themselves in a way that is authentic and representative of who they are and their identity. There is countless evidence in history, science and other fields that clearly show the existence of gender diversity through the ages and that gender diversity is a normal occurrence in life.

As such, arresting and subjecting transgender women to counselling or any punishment or correction because of their gender identity and gender expression is deeply unnecessary and is a gross violation of human rights. 

While compliance with even the Standard Operating Procedures by the arresting agency is imperative, our fundamental concern is with the very act of arresting, summoning, investigating or prosecuting trans women based on their gender identity and gender expression. These actions have a wide-ranging impact and a chilling effect on the rights of transgender women, in particular, their right to live with dignity, restriction of public participation, access to social and cultural life, and right to privacy, among others.

Inconsistencies of Section 26 of the Kedah Syariah Criminal Offences Enactment and similar laws with the Federal Constitution

Section 26 of the Kedah Syariah Criminal Offences Enactment and similar laws that prohibit non-cisnormative gender identity and gender expression violate multiple fundamental rights guaranteed under the Federal Constitution and continue to arbitrarily prosecute transgender women for being who they are.

We recall the landmark Court of Appeal’s decision on Section 66 of the Negeri Sembilan Syariah Criminal Offences Enactment. Section 26 of the Kedah Syariah Criminal Enactment is worded similarly as the previous version of Section 66 of the Negeri Sembilan Enactment. In the decision, which was later set aside by the Federal Court on procedural grounds, the Court of Appeal found Section 66 to be inconsistent with the following articles in the Federal Constitution:

–     Article 5 safeguards the rights to personal liberties, including the rights of trans women to live with dignity. The court agreed that ‘the existence of a law that punishes the gender expression of transsexuals (transgender persons) … directly affects … right to live with dignity, guaranteed by Art. 5(1), by depriving them of their value and worth as members of our society.’

–       Article 8 (1) and (2) guarantees equality before the law and non-discrimination, in particular gender-based discrimination. The raid in Kedah clearly shows that trans women do not enjoy equality before the law, as only the transgender women attendees were issued the notice for an investigation on a later date.

–       Article 9 guarantees freedom of movement

–       Article 10 guarantees the right to speech and assembly. In the decision, the Court noted that freedom of expression includes the way we dress or our gender expression.

We are also deeply concerned by the investigation of the organiser for ‘encouraging vice’ and the instructions by the Kedah Islamic Department to end the event seemingly due to the inclusion and attendance of transgender women. This is a dangerous trend as it punishes event organisers, allies or people for being inclusive of transgender women. It further perpetuates the harmful stereotypes of trans women being deviants, sinners and criminals, leaving no room for social integration of transgender women in society. The state action is counter-productive to building an inclusive, safe and equal society.

We call for the Kedah Islamic Department to drop the investigation, and cease all forms of prosecution of transgender women. The state must acknowledge transgender women as autonomous and equal members of society, and dismantle prejudice, stereotypes and misinformation about transgender people.

Unethical and bias media reporting

We are also deeply disappointed by the sensational reports of the raid by Harian Metro and New Straits Times (NST). The title of the NST article which is a translation of the Harian Metro article, is degrading and sensational. The title essentially mocks the identity of transgender women, and implies that they are ‘distressed men’. We strongly recommend NST to amend the title of the article. 

The Harian Metro article and video report not only misgendered trans women multiple times, but also contained bias, disrespectful and inaccurate statements, language and title. For example, the article reinforces the notion that trans women deserve the consequences for expressing themselves. The article overlooked the unequal power dynamics between the state and transgender women, and the systemic impact of the laws that criminalise transgender people.  

The report only contained quotes by the state Islamic Department, which uses a pejorative term for transgender women. The article could have also featured voices of the transgender women attendees or transgender human rights groups in order to provide different perspectives on the raid.

Harian Metro was also reportedly at the raid. We have many questions surrounding the presence of the media at the raid, including how did the media learn about the raid, and what was their intention of covering the raid?

We have contacted Harian Metro to make changes to the article in order to remove the prejudicial and sensational elements, and maintain a factual, ethical and non-bias reporting. However, no changes have been made so far, and we have not received a reply from Harian Metro.

Endorsed by

  1. Justice for Sisters 
  2. SEED Malaysia 
  3. Pelangi Campaign 
  4. People Like Us Support ourselves (PLUsos)   
  5. Queer Lapis 
  6. Tenaganita 
  7. Amnesty International Malaysia 
  8. Sisters in Islam (SIS)
  9. Women’s Aid Organisation (WAO)
  10. Sarawak Women For Women Society (SWWS)
  11. Sabah Human Rights Center 
  12. Society for Equality, Respect And Trust for All (SERATA) 
  13. Sabah Women Action Resource Group (SAWO)
  14. All Women’s Action Society (AWAM)
  15. Center for Independent Journalism (CIJ)
  16. Persatuan Sahabat Wanita Selangor (PSWS)
  17. Pertubuhan Kesihatan Dan Kebajikan Umum (PPKUM)

Pembetulan bagi artikel Harian Metro

Pembetulan 1

Padah berlagak wanita untuk ditukar kerana bahasa yang digunakan mempunyai konotasi menyalahkan dan menghukum wanita transgender kerana mengekspresikan diri mereka. Tajuk ini tidak mengambil kira undang-undang yang menjenayahkan wanita transgender dan kesannya, serta pematuhan undang-undang tersebut dengan Perlembagaan Persekutuan dan undang-undang hak asasi manusia antarabangsa.


–       Wanita transgender disiasat atas alasan mengekspresikan diri mereka

–       Ekspresi wanita transgender disekat undang-undang

Pembetulan 2

Lagak mereka seperti wanita, namun hakikatnya mereka adalah lelaki. Itu tindakan sekumpulan individu yang menyertai majlis sambutan hari jadi yang diadakan di sebuah hotel di Bandar Darulaman di sini, malam tadi.

Bagaimanapun, semua 30 lelaki dipercayai pondan itu hanya mampu terkedu apabila premis itu diserbu anggota penguat kuasa Jabatan Agama Islam Kedah (JAIK).

Sebuah majlis sambutan hari jadi yang dihadiri oleh 30 individu transgender di sebuah hotel di Bandar Darulaman di sini, malam tadi diserbu anggota penguat kuasa Jabatan Agama Islam Kedah (JAIK).

Pembetulan 3

Kesemua pondan berusia antara 20-an hingga 40-an itu didapati berpakaian wanita seperti gaun dan berbaju kebaya.

Kesemua wanita transgender berusia antara 20-an hingga 40-an .

Pembetulan 4

“Bagaimanapun, kami meminta mereka yang tidak berkenaan bersurai dan hasil pemeriksaan mendapati, terdapat 30 lelaki yang berpakaian wanita dan disyaki pondan.

“Bagaimanapun, kami meminta mereka yang tidak berkenaan bersurai dan hasil pemeriksaan mendapati, terdapat 30 lelaki yang berpakaian wanita dan disyaki “pondan”*.

*pondan ialah istilah yang mempunyai konotasi negatif yang digunakan untuk merujuk kepada golongan wanita transgender atau lelaki gay, biseksual dan queer. Istilah ini tidak sesuai digunakan untuk terhadap golongan wanita transgender kerana ianya merendahkan martabat diri mereka. Istilah yang lebih sesuai dan menghormati identiti mereka ialah wanita transgender atau mak nyah.

Pembetulan 5

Dalam pada itu, Radzi berkata, kesemua pondan berkenaan didapati menetap sekitar daerah ini, selain ada yang berasal dari Selangor dan negeri lain.

Dalam pada itu, Radzi berkata, kesemua wanita transgender berkenaan didapati menetap sekitar daerah ini, selain ada yang berasal dari Selangor dan negeri lain.

Hentikan Initimidasi terhadap Pembela Hak Asasi Manusia yang Mempertikaikan Dasar Kerajaan Berkaitan LGBTIQ 

Kami amat khuatir dengan reaksi melampau pihak kerajaan dan badan bukan kerajaan terhadap sebuah kiriman media sosial berkenaan terapi ‘pemulihan’ bertarikh 30 Julai 2020. Kami percaya kiriman tersebut telah diambil di luar konteks oleh individu yang berniat memburukkan komuniti LGBTQ. Hal ini telah menyebabkan laporan polis dibuat terhadap pembela hak asasi manusia yang mengarang hantaran tersebut.

Dakwaan JAKIM dan beberapa individu lain yang telah membuat laporan polis bahawa kiriman media sosial itu menyamakan Kem Mukhayyam yang didanai oleh kerajaan dengan kaedah terapi ‘pemulihan orientasi seksual dan identiti gender yang lain telah menimbulkan kekeliruan. Kiriman media sosial tersebut, sebaliknya, memberi gambaran menyeluruh berkenaan terapi pemulihan orientasi seksual dan identiti gender, serta kaedah terapi pemulihan yang diamalkan di seluruh dunia oleh pihak kerajaan dan bukan kerajaan. Dakwaan bahawa kiriman media sosial tersebut telah “memfitnah” JAKIM dan Jabatan Agama Islam Negeri (JAIN) adalah tidak berasas.

Dalam konteks Malaysia, kiriman media sosial tersebut dengan jelas telah menyenaraikan terapi ‘pemulihan’  yang didanai kerajaan seperti berikut:

  • Program atau Kem Mukhayyam
  • Seminar dan aktiviti
  • Pemulihan Islamik sebagai rawatan untuk “memulihkan” LGBT
  • Pelan Tindakan Menangani Gejala Sosial Perlakuan LGBT
  • Sumber termasuk e-buku dan aplikasi untuk “hijrah diri” atau “mengubah diri”

Setiap maklumat di dalam kiriman tersebut telah dipetik daripada kajian yang diterbitkan, Hansard Parlimen dan laporan media yang boleh diakses di atas talian.

Terdapat banyak kaedah terapi ‘pemulihan’ yang menggunakan nama yang berlainan di seluruh dunia. Di Malaysia, istilah seperti ‘balik ke pangkal jalan’, ‘kembali ke jalan yang benar’ dan ‘hijrah’ digunakan dengan meluas untuk merujuk kepada perubahan atau penekanan orientasi seksual dan identiti gender. Hal ini termasuk program didanai kerajaan yang disebut di atas.

Seperti yang disebut oleh bekas Menteri Hal Ehwal Agama, Mujahid Yusof Rawa pada tahun 2019, program didanai kerajaan berniat untuk “memulih, memperbaiki, mengubah tingkah laku mereka dan cara hidup mereka yang songsang”. Begitu juga, pada sesi parlimen ke-17 pada tahun 2012, Timbalan Menteri di Jabatan Perdana Menteri ketika itu Dr. Mashitah Ibrahim berkongsi bahawa JAKIM telah menggunakan dua pendekatan untuk “membanteras LGBT” iaitu pencegahan menggunakan kaedah dakwah dan penguatkuasaan undang-undang.

Dalam sebuah visual yang diterbitkan oleh JAKIM pada Julai tahun ini, Ketua Pengarah JAKIM dipetik berkata Program Pendidikan, Rawatan dan Pemulihan Kecelaruan Gender telah mendekati sebanyak 1700 individu LGBT sejak permulaannya pada tahun 2011. Beliau menyatakan bahawa ramai daripada mereka yang didekati telah berhijrah. Kenyataan seperti ini jelas menunjukkan bahawa matlamat JAKIM dalam melaksanakan program yang mensasarkan individu LGBTQ adalah selari dengan matlamat terapi ‘pemulihan’ yang difahami seluruh dunia meskipun ia mempunyai nama dan kaedah yang berbeza.

Berkaitan persoalan tentang penyertaan individu dalam program Mukhayam, kiriman daripada pembela hak asasi manusia itu TIDAK PERNAH menyatakan bahawa penyertaan adalah secara bukan sukarela atau sebaliknya. Ia juga tidak membuat spekulasi, mencerca atau mempersoalkan niat dan motivasi peserta yang mengikuti program itu.

Walau bagaimanapun, kita masih memerlukan pemahaman yang lebih mendalam tentang maksud “penyertaan sukarela”. Meskipun penyertaan seseorang dalam mana-mana program tersebut dikatakan ‘sukarela’, ia tidak bermaksud program tersebut selari dengan piawaian hak asasi manusia. Penyertaan dan kaedah program adalah dua perkara berbeza yang perlu dinilai.

Di Malaysia, kewujudan undang-undang, dasar dan program pemulihan yang menyasarkan individu LGBTQ atau berperilaku LGBTQ menyumbang kepada stigma sosial terhadap individu LGBTQ. Keputusan ramai individu LGBTQ yang hidup dalam persekitaran yang homofobik dan transfobik untuk mengubah atau menekan orientasi seksual dan identiti gender mereka supaya mereka boleh diterima masyarakat adalah sesuatu yang boleh difahami. Oleh itu, kita perlu bertanya soalan ini; apakah tahap kesukarelawanan individu LGBTQ yang menyertai program itu sekiranya mereka hidup dalam masyarakat yang meminggir, mencetus stigma dan menjenayahkan mereka di sisi undang-undang?

JAKIM dan pihak lain juga telah mendakwa bahawa pengarang kiriman itu menafikan kebebasan beragama individu yang ingin mengambil bahagian dalam program tersebut. Kami ingin menyatakan bahawa pengarang kiriman tersebut tidak mempunyai kuasa untuk menafikan kebebasan mereka untuk beragama, dan beliau juga tidak mencabar Islam atau agama lain. Sementara itu, melaporkan beliau kepada pihak polis berdasarkan kesalahtafsiran kiriman beliau, mereka telah menafikan hak beliau untuk bersuara. Menulis tentang terapi pemulihan, program pemulihan yang didanai kerajaan, dan pengalaman individu LGBTIQ yang lain sama sekali tidak bermaksud menghalang individu lain untuk mengamalkan agama mereka. Beliau hanya menyuarakan kekhuatiran tentang program dan pendekatan yang didanai kerajaan untuk memulihkan individu LGBTQ. Sistem demokrasi yang sihat dan berfungsi harus memberi ruang kepada individu untuk mempersoal program yang didanai kerajaan seperti mana agensi kerajaan harus bertanggungjawab untuk memberi respons terhadap persoalan ini tanpa intimidasi.

Tindakan terburu-buru JAKIM membuat laporan polis adalah  keterlaluan. Ia mengundang seruan kepada rakyat Malaysia bahawa kita tidak dibenarkan mempersoal dasar dan program kerajaan, dan berniat untuk menyekat kebebasan bersuara dan hak kita terhadap maklumat dan informasi. Hal ini sekali gus akan menyekat penglibatan terbuka rakyat dalam isu berkaitan undang-undang, dasar, arahan dan program kerana mereka takut dikenakan tindakan. Ketakutan terhadap tindakan yang akan dikenakan selalunya memberi kesan lebih buruk kepada komuniti terpinggir seperti LGBTQ, dan mengakibatkan mereka berdiam diri. Ini secara efektifnya merendahkan piawaian akauntabiliti kerajaan dan pemerintahan yang baik.

Program pemulihan dan pendekatan lain pihak kerajaan yang berkaitan dengan individu LGBTQ telah mendapat kritikan meluas daripada pelbagai pihak. Pada tahun 2018, Jawatankuasa Konvensyen Penghapusan Segala Bentuk Diskriminasi Terhadap Wanita (CEDAW) telah mencadangkan supaya Malaysia “mempercepatkan tindakan untuk menghentikan segala dasar dan aktiviti yang bertujuan untuk “membetulkan” atau “memulihkan” wanita LBTI.”

Sejajar dengan piawaian hak asasi manusia antarabangsa, CEDAW dan cadangan relevan lain yang diutarakan oleh Pelapor Khas PBB, kami menyarankan kerajaan untuk menggunakan isi kandungan tersebut sebagai sebuah peluang untuk melaksanakan satu penilaian impak hak asasi manusia yang bebas bagi program sedia ada dan pendekatan kerajaan berkaitan isu LGBTQ. Untuk memastikan ia lebih bermakna, kami mencadangkan kerajaan melibatkan diri dan mendapatkan khidmat nasihat daripada kumpulan hak asasi manusia LGBTQ yang menegakkan dan mempertahan hak asasi manusia sejagat supaya semua individu dapat melibatkan diri dalam menjadikan Malaysia selamat dan saksama bagi semua lapisan masyarakat. Individu LGBTQ tidak perlu mengubah diri mereka. Namun bersama-sama kita boleh mengubah Malaysia menjadi lebih baik.

Disokong oleh :

  1. Justice for Sisters
  2. PELANGI Campaign
  3. Gay Community Welfare Network
  4. People Like Us Hang Out (PLUHO)
  5. Amnesty International Malaysia
  6. Aliran
  7. ASEAN SOGIE Caucus (ASC)
  8. Beyond Borders Malaysia
  9. Center for Independent Journalism (CIJ)
  10. Jaringan Kampung Orang Asli Semenanjung Malaysia (JKOASM)
  11. Persatuan Promosi Hak Asasi Manusia (PROHAM)
  12. Pergerakan Tenaga Akademik Malaysia (GERAK)
  13. Sisters in Islam (SIS)
  14. Sabah Women’s Action Resource Group (SAWO)
  15. Tenaganita