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. 

End arbitrary arrests and repeal laws that criminalize transgender persons

For immediate release

March 7, 2016

Justice for Sisters is extremely concerned and appalled by the arrests of 12 trans women, including an Indonesian trans woman in a police raid in Penang on 2 March 2016. The 12 are being investigated under various charges, including gang robbery, violation of social pass, and Section 28 of the Penang Syariah Criminal Offences Enactment 1996, which criminalizes male person posing as a woman.

Five women investigated for robbery, have been remanded for 6 days until 8 March 2016. No further information is available at the moment, including their cells, and the exact sections that they are being investigated for.

In a positive move in November 2015, Penang State EXCO for Youth and Sports; Women, Family and Community Development, and Member of Parliament for Bukit Mertajam YB Chong Eng recommended separate cells for transgender persons to protect their safety. Based on her correspondence with the Penang Police chief Datuk Abdul Rahim Hanafi in August 2015, she noted that there is currently no guideline for detainees who are transgender, however placed in separate cells based on sensitivity and discretion of the police.

We echo YB Chong Eng’s recommendation, and urge the Penang Police Department to ensure that the detainees are being treated humanely. We further call Members of Parliament and State Assemblypersons to support the recommendations, as all detainees and prisoners have the right to humane treatment, including being treated as per self-determined gender identity. There is overwhelming anecdotal evidence of the multiple forms of violence experienced by trans women in detention, including disregard of gender identity (being treated as a cisgender man), physical and sexual violence, and lack of access to trans specific healthcare needs, which increases anxiety and stress due to changes in appearance and body.

Article 9 of the Universal Declaration of Human Rights states that no one shall be subjected to arbitrary arrest, detention or exile. Some of the trans women were arrested in their hotel rooms, while they were asleep. Six trans women, who are being investigated under ‘Section 28 Male person posing a woman’, which criminalizes any male person who wears women’s attire or poses as a woman in a public place for immoral purposes, were released on 3 March 2015 by the Penang religious department.

These on-going arbitrary arrests of trans women further affirm Justice for Sisters’ call for the repeal of all laws that criminalize transgender persons based on gender identity. These laws are not only discriminatory and violate fundamental human rights of transgender persons— including right to self determination, freedom of movement and freedom of expression—but these laws are also open to abuse. In this case, although the women were asleep while they were arrested in their hotel rooms, they are still being investigated under Section 28.

We strongly emphasize that gender is not determined by genitals. In fact, it is a widely accepted and evidence-based fact that gender is a spectrum signifying personal sense of belonging and identification (as a girl/woman, boy/man, both, neither, other gender identities). Transgender persons do not pose, pretend or cross dress. Transgender people are merely expressing their identities, like cisgender persons. Parallel with this, gender recognition legislations in many countries now, no longer require medical intervention.

Dehumanizing Media Coverage of the Arrests

We are also extremely appalled by the media coverage of the arrests. The media cannot continue to dehumanize, dismiss and erase identities of trans people by misgendering (using the wrong pronouns) and using derogatory terms, like transvestite and cross dressers to refer to trans women. Further, it is disappointing to note that some media, which had in the past used trans affirming language, has reverted to using discriminatory, dehumanizing and outdated terms in their coverage.

At least one media outlet, The Star Online had published a photo of one of the detainees. Trans women are often subjected to public humiliation and violation of privacy during raids and arrests, including through the presence of media. I am scared to be woman, a report by Human Rights Watch that documented violence against transgender persons in Malaysia included an experience of a woman who lost her job after her photo and news of her arrest was released in the media.

Anecdotal evidence shows that arrests and disclosure of details, including name as per identification card and photo in the media causes increased mental health issues, like trauma, anxiety, stress and isolation; and has the effect swaying support provided by family members. It exacerbates further humiliation and condemnation by friends and family members, and impacts future livelihood through the loss of employment.

In addition, we strongly emphasize that hate crime and violence against transgender persons are real. The lack of positive portrayal of trans people, and the overwhelming negative and sensationalistic articles further increase anxiety and fear over personal security and safety among transgender persons. It further creates an unhealthy and unsafe environment for trans people in this country.

Justice for Sisters firstly calls on all media outlets to treat transgender persons with dignity, and use respectful language to refer to trans people. We also call the media to play a role in public education to reduce intolerance and hatred towards communities already marginalised, misunderstood, and deprived of access.

media guides – panduan media BM | GLAAD media reference guide

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For more details, please contact justiceforsisters@gmail.com