The continuous persecution of Nur Sajat underscores growing extremism in Malaysia

We, members of civil society, are deeply concerned about the developments surrounding Nur Sajat’s case. On 8 September 2021, Nur Sajat was arrested by the Thai Immigration Department following a request by the Malaysian authorities. These dangerous developments, taking place against the backdrop of growing restriction of freedom of religion and increasing anti-LGBTQ sentiments, have a wide ranging impact on all people, not just Sajat and LGBTIQ persons. 

Since the exposé by Harian Metro on 20 September 2020, several state actors have responded with alarming alacrity. Bukit Aman Criminal Investigation Department Director Datuk Seri Abd Jalil Hassan stated that PDRM is working with the Foreign Ministry and the Attorney-General’s Chambers to extradite Nur Sajat. According to a PDRM media statement, Nur Sajat is wanted for the following charges: 

  • Deriding verses of Al-Quran or Hadith (S. 9 of the Selangor Syariah Criminal Offences Enactment) 
  • Obstructing public servant in discharge of his public functions (S. 186 of the Penal Code) 
  • Using criminal force to deter a public servant from discharge of his duty (S. 353 of the Penal Code) 

We note that Nur Sajat was earlier reported of being charged under Section 10 of the Selangor Syariah Criminal Offences Enactment for insulting islam. However, the PDRM reported that she is wanted for Section 9 instead of Section 10 of the Syariah Criminal Offences Enactment.

The latter two charges are allegedly related to a scuffle that took place on JAIS premises, when JAIS officers proceeded to arrest her after taking her statement. Nur Sajat reported that she was violently pinned down and handcuffed. Nur Sajat also made a police report against the JAIS officers on January 13. However, the status of the investigation remains unknown. 

In a communication to the Malaysian government on Nur Sajat’s case (JUA MYS 4/2021)​​,  UN Special Mandate holders stated that, “Ms. Sajat cannot be discriminated against and be restricted in the exercise of her right to freedom of religion or belief solely based on her gender identity. As provided in Article 29(2) of the UDHR, in the exercise of one’s rights and freedoms, one shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society, none of which is negatively impacted in regard to the activities of Ms Sajat.” 

 In this communication the government was asked to provide the following information: 

  • What steps have been taken to guarantee Ms Nur Sajat’s right to freedom of religion or belief without discrimination and harassment by non-state actors and State agents.
  • The measures taken by the Government to protect Ms Nur Sajat and her family from further intimidation, harassment or pressure and to ensure their safety.
  • What measures are planned or implemented to combat the growing pattern of incitement to violence?

The Permanent Mission of Malaysia replied on 24 March 2021 by saying that they have “transmitted the Joint Urgent Appeal (JUA) to the urgent attention of relevant Malaysian authorities.” 

Wide Ranging Impact 

Since the release of the Harian Metro expose, various state actors have expressed restrictive measures against trans and LGBTQ persons, which have been gradually escalating since the introduction of fatwa prohibiting trans people’s rights to self-determination and bodily autonomy in 1982.

  • The Perlis Fatwa Committee released a fatwa, titled Hukum Berinteraksi Dengan Mukhannath (Pondan/Mak Nyah/Bapuk/Pengkid/Tomboi/Transgender) or a guide on interaction with mukhannath (Pondan/Mak Nyah/Bapu /Pengkid/Tomboy/Transgender), which considers transgender and LGBQ people in general as fasik or someone who violates Islamic law because of their gender identity and gender expression as well as perceived sexual orientation. The committee’s views on gender identity, gender expression and sexual orientation is inaccurate, not evidence and rights based and most importantly extremely harmful. Among the harmful things in the fatwa are prohibition of transgender people from entering mosques and performing haj and umrah because of their gender identity. 
  • YB Nik Abduh (MP Bachok, Kelantan) called for more state-sponsored rehabilitation programmes for LGBT persons in Parliament on 21 September 2021. Rehabilitation or conversion practices are widely discredited because of its long lasting harmful impact not just on LGBTIQ persons but also people who are connected to them. 

This comes after the Prime Minister, in answering a question in parliament, noted that the government has rolled out a range of activities to ‘bring LGBT people back to the right path’. 

The continuous and escalating anti-LGBT sentiments in Malaysia is extremely concerning. 

A Suhakam study on the discrimination against transgender people based in Kuala Lumpur and Selangor found that 72 of 100 respondents thought of migrating to countries with better legal protection, legal gender recognition, accepting environment, among others. 54 respondents said that they don’t feel safe living in Malaysia. According to the Ministry of Home Affairs, between 2017 and 2018, over 50% of people who sought asylum in Australia were reportedly Malaysians. ’LGBT’ and discrimination on the grounds on ethnicity and religion are two of the four main reasons cited by the Malaysian applicants. Other reasons include domestic violence and family pressure. 

We recall that in its bid to secure a seat at the Human Rights Council, Malaysia made several pledges during the Human Rights Council pledging session on 8 September 2021. Malaysia reiterated its unequivocal commitment to advancing human rights. In line with this, the Malaysian government must respect the principle of non refoulement and Nur Sajat’s right to seek asylum.  

We call on the state and members of the public to end all investigations and harassment against Nur Sajat, and respect her right to seek asylum as stated under Article 14 of the Universal Declaration of Human Rights. The threats and risks against Nur Sajat because of her gender identity are blatant. Over the years, Nur Sajat has experienced bullying, doxing, harassment with impunity by both state and non-state actors, which have escalated by the day. 


Endorsed by 

  1. Justice for Sisters 
  2. Agora Society
  3. All Women’s Action Society (AWAM)
  4. Amnesty International Malaysia
  5. Association of Women Lawyers (AWL) 
  6. Center for Independent Journalism
  7. Deaf LGBTIQ community 
  8. Diversity Malaysia
  9. EMPOWER Malaysia
  10. JEJAKA
  11. KRYSS Network 
  12. Legal Dignity
  13. PLUHO (People Like Us Hang Out!)
  14. North South Initiative
  15. Sisters in Islam (SIS)
  16. Shh… Diam!
  17. Parti Sosialis Malaysia
  18. PELANGI Campaign
  19. Persatuan Sahabat Wanita Selangor (PSWS)
  20. Our Journey
  21. Transmen of Malaysia
  22. Tenaganita
  23. The KLSCAH Women Division
  24. UMANY
  25. Women’s Center for Change (WCC)

Appendix 1: Summary of government activities on LGBT issues (Source: Jawapan bertulis by Ismail Sabri, Prime Minister of Malaysia, Parliament Malaysia, 14 September 2021)

  • Pelan Tindakan Sosial Islam, Jabatan Kemajuan Islam Malaysia (PTSI JAKIM) 2019-2025 or Action Plan on Social aspects of Islam, Jabatan Kemajuan Islam Malaysia (PTSI JAKIM) 2019-2025 was developed to address social ills among Muslims in Malaysia, including LGBT issues. The action plan has led to the creation of a task force made up of a few ministries and agencies who are working together to address LGBT issues 
  • Support and Guidance programmes. This includes 
    • Mukhayaam or religious camps, which aims to provide “spiritual guidance and awareness” and health information, particularly HIV related information to LGBT persons. As of June 2021, at least 1,733 LGBT people have participated in the camps. As a result of the camps, 12 NGO komuniti Hijrah or ex-LGBT NGOs consiing of Muslim LGBT persons have been established. 
    • Follow up and support programmes through religious sessions or classes and seed funds for business by the state Islamic departments and councils, among others. 
    • Education and advocacy programmes in relation to LGBT issues, which includes seminars targeting school and university students, school counsellors, parents, volunteers and representatives of islamic NGOs, health providers. The seminar provides information in relation to how to stay away from LGBT behaviour, how to help someone to abandon their LGBT behaviour, among others. On 4 September 2021, a Pre-Workshop Conference for a Nusantara Religious Camp with LGBT community from Malaysia, Indonesia, Thailand and Singapore was held. 
    • Donations through the Musa’adah Fund for LGBT people. 525 Mukhayyam participants benefited through the fund. 
  • Establishment of a social center. The Family and social community service center or Pusat Khidmat Keluarga dan Sosial Komuniti (PKKSK) under JAKIM provides syariah counseling, islamic psychospiritual therapy and Ilaj syarie (Islamic treatment). These services are available nationwide 
  • Development of publications by JAKIM, which includes the Ilaj Wa Syifa (Treatment and Rehabilitation) module.  

Appendix 2: Laws

Selangor Syariah Criminal Offences (Selangor) Enactment 1995

Section 9. Deriding etc., verses of Al-Quran or Hadith.

Any person who derides, insults, ridicules or brings into contempt by his words or acts the verses of Al-Quran or Hadith shall be guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both .

Section 10. Insulting or bringing into contempt, etc., the religion of Islam.

Any person who by words which are capable of being heard or read or by drawings, marks or other forms of representation which are visible or capable of being visible or in any other manner-

(a)insults or brings into contempt the religion of Islam:

(b)derides, apes or ridicules the practice or ceremonies relating to the religion of Islam: or

(c)degrades or brings into contempt any law relating to the religion of Islam for the time being in force in this State

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Penal Code

186. Obstructing public servant in discharge of his public functions.

Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment for a term which may extend to *two years or with fine which may extend to *ten thousand ringgit or with both.

353. Using criminal force to deter a public servant from discharge of his duty

Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.

Penganiayaan berterusan terhadap Nur Sajat menandakan peningkatan ekstremisme yang semakin membimbangkan di Malaysia

Kami, kumpulan masyarakat sivil, memandang serius perkembangan kes Nur Sajat. Pada 8 September 2021, Nur Sajat ditahan oleh Jabatan Imigresen Thailand berikutan permintaan pihak berkuasa Malaysia. Perkembangan berbahaya ini di sebalik pembatasan kebebasan beragama yang semakin meningkat dan peningkatan sentimen anti-LGBTQ, mempunyai kesan yang luas kepada semua orang, bukan sahaja kepada Sajat dan individu LGBTIQ.

Sejak pendedahan oleh Harian Metro pada 20 September 2020, beberapa pelaku negara memberikan respon yang membimbangkan. Pengarah Jabatan Siasatan Jenayah Bukit Aman, Datuk Seri Abd Jalil Hassan telah menyatakan bahawa PDRM sedang bekerjasama dengan Kementerian Luar Negeri dan Jabatan Peguam Negara untuk membawa pulang Nur Sajat. Menurut sebuah kenyataan media oleh PDRM, Nur Sajat dikehendaki atas tuduhan-tuduhan berikut:

  • Mempersendakan Islam (S. 9 Enakmen Kesalahan Jenayah Syariah Selangor)
  • Menghalang penjawat awam pada menjalankan kerja-kerja jawatannya (S. 186 Kanun Keseksaan)
  • Menggunakan kekerasan jenayah untuk menakutkan pegawai awam daripada menjalankan kewajipannya (S. 353 Kanun Keseksaan)

Terdahulu Nur Sajat dilaporkan dituduh di bawah Seksyen 10 Enakmen Jenayah Syariah Selangor untuk menghina Islam. Akan tetapi, PDRM melaporkan bahawa Nuru Sajat dikehendaki di bawah Seksyen 9, dan bukan Seksyen 10 Enakmen Jenayah Syariah Selangor. 

Dua pertuduhan terakhir adalah berkaitan dengan pergelutan fizikal yang berlaku di JAIS, selepas pegawai JAIS menangkap Nur Sajat setelah mengambil keterangannya. Nur Sajat melaporkan bahawa dia ditahan dan digari secara kasar. Nur Sajat juga membuat laporan polis terhadap pegawai JAIS pada 13 Januari. Bagaimanapun, status siasatan tersebut masih tidak diketahui.

Dalam satu komunikasi kepada kerajaan Malaysia berkenaan kes Nur Sajat (JUA MYS 4/2021), pemegang Mandat Khas PBB menyatakan bahawa, “Cik Sajat tidak boleh didiskriminasi dan dihalang daripada mempraktikkan haknya kepada kebebasan beragama atau kepercayaan semata-mata berdasarkan identiti gender. Seperti yang diperuntukkan dalam Perkara 29(2) UDHR, hak dan kebebasan seseorang hanya boleh dikenakan batasan seperti ditentukan oleh undang-undang semata-mata untuk tujuan mendapatkan pengiktirafan dan penghormatan atas hak dan kebebasan orang lain serta untuk memenuhi syarat moral, ketenteraman awam dan kesejahteraan umum yang adil dalam masyarakat demokratik, tidak terkesan secara negatif oleh aktiviti Cik Sajat.”

Dalam komunikasi ini, kerajaan diminta untuk memberikan maklumat berikut:

  • Langkah-langkah yang telah diambil untuk menjamin hak Cik Nur Sajat terhadap kebebasan beragama atau kepercayaan tanpa diskriminasi dan gangguan oleh pelaku bukan negara dan pelaku negara.
  • Tindakan yang diambil oleh kerajaan untuk melindungi Cik Nur Sajat dan keluarganya daripada ugutan, gangguan atau tekanan lebih serius serta untuk memastikan keselamatan mereka.
  • Apakah tindakan yang dirancang atau dilaksanakan untuk memerangi pola hasutan terhadap keganasan yang semakin meningkat?

Permanent Mission of Malaysia pada 24 Mac 2021 telah menjawab komunikasi tersebut dengan menyatakan bahawa mereka telah “mengirimkan Permohonan Segera Bersama (JUA) untuk perhatian segera pihak berkuasa Malaysia yang relevan.”

Kesan yang meluas 

Sejak pendedahan Harian Metro, pelbagai pelaku negara telah mengambil peluang ini untuk mengenakan pelbagai kengkangan terhadap individu transgender dan LGBTQ, yang secara bertahap meningkat sejak pengenalan fatwa  pada tahun 1982 yang memberi kesan kepada hak individu trans ke atas penentuan nasib sendiri dan otonomi badan.

  • Jawatankuasa Fatwa Perlis mengeluarkan fatwa, bertajuk Hukum Berinteraksi Dengan Mukhannath (Pondan / Mak Nyah / Bapuk / Pengkid / Tomboi / Transgender) atau panduan interaksi dengan mukhannath (Pondan / Mak Nyah / Bapu / Pengkid / Tomboy / Transgender), yang menganggap individu transgender dan LGBQ secara umum sebagai fasik atau seseorang yang melanggar undang-undang Islam kerana identiti gender dan ekspresi gender serta anggapan orientasi seksual. Pandangan jawatankuasa berkenaan identiti gender, ekspresi gender dan orientasi seksual adalah tidak tepat, tidak berdasarkan bukti dan hak, dan yang paling penting ialah ianya sangat berbahaya. Antara perkara berbahaya dalam fatwa adalah larangan individu transgender daripada memasuki masjid dan menunaikan haji serta umrah oleh sebab identiti gender mereka.
  • YB Nik Abduh (MP Bachok, Kelantan) mencadangkan lebih banyak program pemulihan yang ditaja oleh kerajaan bagi individu LGBT di Parlimen pada 21 September 2021. Amalan pemulihan atau penukaran tidak berasaskan fakta dan ditolak secara meluas kerana kesan buruk yang berpanjangan terhadap bukan sahaja individu LGBTIQ tetapi juga individu dalam lingkungan mereka.

Hal ini menyusul jawapan Perdana Menteri di Parlimen, di mana beliau menyatakan bahawa kerajaan telah melancarkan pelbagai kegiatan untuk membimbing  golongan LGBT ‘kembali ke pangkal jalan’.

Sentimen anti-LGBT yang berterusan dan meningkat di Malaysia adalah amat membimbangkan.

Kajian Suhakam berkenaan diskriminasi terhadap individu transgender di Kuala Lumpur dan Selangor mendapati bahawa 72 daripada 100 responden pernah terfikir untuk berhijrah ke negara-negara yang mempunyai perlindungan undang-undang yang lebih baik, pengiktirafan gender yang sah, persekitaran yang menerima mereka, antara lain. 54 responden mengatakan bahawa mereka tidak rasa selamat tinggal di Malaysia. Menurut Kementerian Dalam Negeri, antara 2017 dan 2018, lebih 50% orang yang meminta perlindungan politik di Australia dilaporkan adalah rakyat Malaysia. ‘LGBT’ dan diskriminasi atas dasar etnik dan agama adalah dua daripada empat sebab utama yang dikemukakan oleh pemohon Malaysia. Sebab-sebab lain termasuklah keganasan rumah tangga dan tekanan keluarga.

Kami mahu mengingatkan kerajaan bahawa dalam usaha Malaysia untuk mendapatkan kerusi di Majlis Hak Asasi Manusia, Malaysia telah membuat beberapa janji semasa sesi berjanji Majlis Hak Asasi Manusia pada 8 September 2021. Malaysia mengulangi komitmennya secara tegas untuk memajukan hak asasi manusia. Sejajar dengan ini, kerajaan Malaysia haruslah menghormati prinsip non-refoulement (larangan pemulangan semula pencari suaka ke negara asal di mana mereka rentan terhadap pencabulan hak asasi manusia) dan hak Nur Sajat untuk mencari suaka.

Kami meminta kerajaan dan masyarakat untuk menghentikan semua penyiasatan dan gangguan terhadap Nur Sajat, serta menghormati haknya untuk mencari suaka seperti yang dinyatakan dalam Perkara 14 Deklarasi Hak Asasi Manusia Sejagat. Ancaman dan risiko terhadap Nur Sajat kerana identiti gender adalah jelas. Selama bertahun-tahun, Nur Sajat telah mengalami pelbagai bentuk penganiayaan, termasuklah dibuli, penyebaran maklumat peribadi tanpa kebenaran (doxing), gangguan oleh pelaku negara dan bukan negara, yang semakin meningkat dari hari ke hari.


Disokong oleh 

  1. Justice for Sisters 
  2. Agora Society
  3. All Women’s Action Society (AWAM)
  4. Amnesty International Malaysia
  5. Association of Women Lawyers (AWL) 
  6. Center for Independent Journalism
  7. Deaf LGBTIQ community 
  8. Diversity Malaysia
  9. EMPOWER Malaysia
  10. JEJAKA
  11. KRYSS Network 
  12. Legal Dignity
  13. PLUHO (People Like Us Hang Out!)
  14. North South Initiative
  15. Sisters in Islam (SIS)
  16. Shh… Diam!
  17. Parti Sosialis Malaysia
  18. PELANGI Campaign
  19. Persatuan Sahabat Wanita Selangor (PSWS)
  20. Our Journey
  21. Transmen of Malaysia
  22. Tenaganita
  23. The KLSCAH Women Division
  24. UMANY
  25. Women’s Center for Change (WCC)

Lampiran 1: Ringkasan aktiviti oleh kerajaan berkaitan dengan isu-isu LGBT seperti yang dinyatakan di Parlimen pada 14 September 2021 oleh Ismail Sabri, Perdana Menteri

  • Pelan Tindakan Sosial Islam, Jabatan Kemajuan Islam Malaysia (PTSI JAKIM) 2019-2025 atau Action Plan on Social aspects of Islam, Jabatan Kemajuan Islam Malaysia (PTSI JAKIM) 2019-2025 dibangunkan untuk menangani masalah sosial di kalangan umat Islam di Malaysia, termasuk isu-isu LGBT. Pelan tindakan telah membawa kepada pembentukan pasukan petugas yang terdiri dari beberapa kementerian dan agensi yang bekerjasama untuk menangani masalah LGBT
  • Program sokongan dan bimbingan. Ini termasuk
  • Mukhayaam atau kem agama, yang bertujuan untuk memberikan “bimbingan rohani dan kesedaran” dan maklumat kesihatan, terutama maklumat berkaitan dengan HIV kepada orang LGBT. Sehingga Jun 2021, sekurang-kurangnya 1,733 orang LGBT telah menyertai kem ini. Hasil dari kem tersebut, 12 NGO komuniti Hijrah atau bekas NGO LGBT yang terdiri daripada orang LGBT Muslim telah ditubuhkan.
  • Menyusuli dan menyokong program melalui sesi atau kelas keagamaan dan dana benih untuk perniagaan oleh jabatan dan majlis Islam negeri, antara lain.
  • Program pendidikan dan advokasi berkaitan dengan isu LGBT, yang merangkumi seminar yang mensasarkan pelajar sekolah dan universiti, kaunselor sekolah, ibu bapa, sukarelawan dan wakil NGO Islam, penyedia kesihatan. Seminar ini memberikan maklumat berkaitan dengan bagaimana menjauhkan diri dari tingkah laku LGBT, bagaimana untuk membantu seseorang untuk meninggalkan tingkah laku LGBT mereka, antara lain. Pada 4 September 2021, Persidangan Pra-Bengkel untuk Kem Agama Nusantara dengan komuniti LGBT dari Malaysia, Indonesia, Thailand dan Singapura diadakan.
  • Sumbangan melalui Dana Musa’adah untuk orang LGBT. 525 peserta Mukhayyam mendapat manfaat melalui dana tersebut.
  • Penubuhan pusat sosial. Pusat Khidmat Keluarga dan Sosial Komuniti (PKKSK)  atau Family and social community service center di bawah JAKIM menyediakan kaunseling syariah, terapi psikospiritual Islam dan Ilaj syarie (rawatan Islam). Perkhidmatan ini tersedia di seluruh negara
  • Pembangunan penerbitan oleh JAKIM, yang merangkumi modul Ilaj Wa Syifa (Rawatan dan Pemulihan).

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