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.