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.