The Malaysian LGBTQ+ community has been subjected to substantial discrimination, injustice, and abuse in recent years. The legitimising of state violence against transgender people by the Minister of Religious Affairs, Zulkifli Mohamad Al-Bakri, illustrates the vulnerability of the country’s minority groups.
On 10 July 2020, the Minister of Religious Affairs made an announcement on Facebook that the Federal Territories Islamic Religious Department (JAWI) will be given a “full licence to carry out its enforcement actions” against transgender people. The announcement also suggested that following arrest it is necessary for transgender people to be given “religious education” and be “brought back to the right path”, which has been frowned upon by activists.
Jahid Al-Khalidi, a doctor at the Manarah Islamic Medical Centre recently published a guide with suggested therapies for homosexual and lesbian re-education, which included methods such as spraying the patient’s eyes with chewed black pepper. Such practices used to “convert” transgender people to cisgender should be banned as it is damaging to those who undergo it. Conversion underpins the belief that non-heterosexual orientations are anomalies that stem from disease, mental disorder, as well as being sinful. Those who have undergone such practices have experienced a decrease in self- esteem, episodes of significant anxiety, depressive tendencies, depressive syndromes, social isolation, self-hatred, sexual dysfunction, and suicidal thoughts.
INTERNATIONAL PERSPECTIVE
The current prejudice against the transgender community in Malaysia has been greatly censured by the International Commission of Jurists (ICJ). The ICJ voiced its unease with the Minister’s proposal to not only arrest members of the transgender community but to also, provide them with “religious education”. Instead of bringing transgender people to the “right path”, the focus should be shifted towards recognising them for who they are as the “… strict conformity to the binary classification of gender has resulted in discrimination against LBGT community that led to many violations of their human rights.”
At present, there is a great concern for the safety and security of the transgender community as they could be victimized for not being on the “right path”. The National Registration Department in Malaysia has been urged to grant National Registry Identity Cards (NRIC) to transgender people based on the gender that they identify with. The failure to do so by the authorities has led to issues such as trans women being placed in male medical wards, trans men being placed in female medical wards, and trans women criminally charged for “posing as a woman”.
In response to the announcement, the ICJ has urged the Minister to revoke the order immediately and take measures to ensure that all persons including the LGBTQ+ community is protected from discrimination and inequality. The government of Malaysia has been directed by the ICJ to observe it’s obligations under international law, and persevere with its undertaking to advocate and protect human rights. Amnesty International Malaysia commented that such practices should be outlawed as they cause great “psychological distress and harm to the recipient”.
“This unacceptable transphobic and homophobic attack from a government official highlights the societal prejudices and the lack of legal protections against discrimination faced by transgender persons in Malaysia,” said Ambiga Sreenavasan, a prominent Malaysian lawyer and Commissioner of the ICJ.”
Victor Madrigal-Borloz, UN Independent Expert on Protection against violence and discrimination based on sexual orientation and gender identity, in his call to ban gay ‘conversion therapy’ said "They are inherently degrading and discriminatory and rooted in the belief that LGBT persons are somehow inferior, and that they must at any cost modify their orientation or identity to remedy that supposed inferiority."
SECTION 66 OF THE SYARIAH CRIMINAL ENACTMENT 1992 (NEGERI SEMBILAN): AN ATTACK ON TRANSGENDER PEOPLE
The persecution of the minority groups in Malaysian precedes this recent announcement. According to Section 66 of Syariah Law, it is an offence for any male person to wear a woman’s attire, or to pose as a woman in a public place. Those convicted can be liable to a fine not exceeding RM 1,000.00 ($241 USD) or to imprisonment for a term not exceeding six months or both.
Further, in Muhammad Juzaili Mohd Khamis and others,a landmark case concerning the rights of transgender persons in Malaysia, three transgender bridal assistants sought a declaration that the ban on cross-dressing was unconstitutional. This declaration came after the claimants arrested a few times by the Islamic State Authorities under Section 66. The Court of Appeal held that Section 66 of the Act was unconstitutional because it infringed several provisions of the Constitution: Article 5(1)freedom of life and liberty, Article 8(1) equality before the law, Article 9(2) freedom of movement, and Article 10(1)(a) freedom of expression of the Federal Constitution. However, the Federal Court decided to set aside this decision and ignore a vital opportunity to improve transgender rights.
Another discriminatory law that should be reviewed is Section 377A of the Penal Code (Malaysia), which criminalizes homosexuality. Homosexual activity is illegal under the religious and secular laws of Malaysia. In June 2019, same-sex marriage has been described by the former Prime Minister, Dr. Mahathir Mohamad as a “regressive way of thinking” in his Cambridge Union talk. As such, the rights of the LGBTQ+ community remain undetermined.
The former Deputy Prime Minister of Malaysia, Dr Ahmad Zaid bin Hamidi attributed the 2018 earthquake in Palu, Indonesia to members of the community who were involved in “LBGT activities”.This statement reflects the extent of discrimination the trans-community is exposed to, as well as the pressing need for the protection of those under the LGBTQ+ banner. In actual fact, it is the general public that needs to be educated on the lack of transgender rights in Malaysia in tandem with an overhaul of the discriminatory laws governing the LGBTQ+ community.
In February 2017, Sameera Krishnan, a trans- woman who was a victim of a kidnapping in 2015, was brutally murdered. She had four fingers on her right hand severed, severe head injuries, and was shot in the posterior. The police have dismissed the possibility that the murder was a hate crime. However, Nisha Ayub, the founder of transgender rights group Justice for Sisters, said the murder of Sameera Krishnan was a prime example of how people tend to hate transgenders for no reason. For context, Justice for Sisters disclosed that at least four murders of trans women were reported from November 2018 to October 2019.
In November 2019, four Malaysian men were caned for having gay sex under Syariah law as it amounted to “intercourse outside the order of nature”. In August 2018, the minister of Islamic Affairs, Mujahid Yusof Rawa ordered the removal of two portraits of LGBT activists from a public photo exhibition. The Minister said “the promotion of LGBT culture was not supported in Malaysia.”
The LGBTQ+ community currently lives in fear, uncertainty, and indignity. It is trite and obvious that much remains to be done towards the recognition and protection of rights of the LGBTQ+ community in Malaysia. Transgender people will continue to live in distress and disrepute if such discriminatory laws, attitudes, and practices remain in force. The Malaysian Government needs to crack down on the rampant violence and hate crimes against the LGBTQ+ community by the people and the State.
Ahimsya has an LLB from the University of Essex and is currently doing the Bar Professional Training Course at UWE Bristol. Her fields of interests are international trade law and administrative law. She aspires to be a human rights activist in the future.