(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Malaysia has a dual-track legal system. There are two sets of laws in Malaysia: the civil system, which applies to all persons residing in Malaysia; and the state-administered Islamic or Shariah laws which are ostensibly only applicable to Muslims. The Federal Constitution delineates that “matters of Islam” will be handled under the Shariah laws. However, what has been happening in effect is a quiet “redefinition” of what is considered “matters related to Islam.” The scope of Shariah laws in the country has slowly widened, from personal status laws on marriage, divorce, custody, and maintenance to matters related to the individual’s piety, practices, and preferences (such as fasting, Friday prayers, sexual orientation, and consumption of alcohol).
There is no legal recognition of same-sex relationships and no laws currently exist permitting same-sex couples to adopt children. A marriage is void if the parties are not respectively male and female, as provided by Section 69(d) of the Law Reform (Marriage and Divorce) Act (1976). Malaysian men still face whipping and up to 20 years in jail under a British colonial-era law that bans gay sex, known as Section 377A. Liwat (sexual relations between male persons) and musahaqah (sexual relations between female persons) are punishable offences under the Syariah Criminal Offences (Federal Territories) Act 1997.
For a Muslim transgender person, Sharia law prohibits ‘cross-dressing’. In 2014, Malaysia’s Court of Appeal ruled that the state’s Sharia cross-dressing laws are unconstitutional. However, the ruling was subsequently overturned on appeal by the Federal Court on a technicality, citing improper procedures used to challenge the Sharia law and without ruling on the substance of the constitutional challenge. Laws against cross-dressing remain in force in the rest of Malaysia’s 13 states and its Federal Territories and are used to target transgender individuals. Non-Muslim transgender people are targeted under public decency acts, often for attending LGBTI group events.
Malaysia has ratified three international human rights conventions – the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1995, the Convention on the Rights of the Child (CRC) in 1995, and the Convention on the Rights of Persons with Disabilities (CRPD) in 2010. In 2010, the government removed three of eight initial reservations for CEDAW.
In 2010, two gay men from Malaysia received refugee status in the UK. Under Penal Code 377, they could be imprisoned for up to twenty years.
Islamic laws in Malaysia’s thirteen states have been reportedly used increasingly to target the LGBTI community. In 2020, a Malaysian man brought a challenge in the Federal Court against his state of Selangor’s Islamic laws which banned “intercourse against the order of nature”. On 25 February 2021, the Federal Court unanimously declared that the Selangor state law provision which made unnatural sex a Sharia offence was invalid as it contradicted the Federal Constitution and that such offences fall under Parliament’s jurisdiction. While this case did not advance decriminalisation efforts, it does show promise for the curbing of Islamic laws targeting LGBTI individuals.
In 2016, the Kuala Lumpur High Court ordered the National Registration Department (NRD) to update a trans man’s information on his identity card to better reflect his gender identity and chosen name. However, in 2017, the Court of Appeal overturned this decision, after an appeal by the Malaysian government, and set aside the High Court’s ruling.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
Public attitudes towards LGBTI Malaysians are overwhelmingly negative, with only 9% of the population believing homosexuality should be accepted by society, according to a Pew Research Center opinion survey.
Trans individuals face many social and legal issues in Malaysia. A 2014 Human Rights Watch report alleged that transgender people are subjected to “assault, extortion, and violations of their privacy rights” by police, and humiliation, physical and sexual assault by Religious Department officials.
The Malaysian state has little to no capacity to protect LGBTI individuals. In March 2019, Minister of Tourism, Arts and Culture Mohammadin Ketapi denied the existence of LGBTI people in Malaysia, telling German reporters in the 2019 ITB Berlin tourism trade fair, “I don’t think we have anything like that in our country.” In July 2012, Najib Razak, Malaysia’s Prime Minister until 2018, declared “LGBT, liberalism and pluralism as enemies of Islam” and called on the people to defend the government from those foreign influences. Police raids and ‘crackdowns’ have increased since the early 2000’s and homosexual activity is a specific target of this moral policing.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
Pink Triangle Foundation Malaysia
The PT Foundation’s mission is to be the leading community-based organisation in Malaysia working with key affected populations on HIV and AIDS, gender identity and sexual health, providing information, advocacy, HIV prevention, care and support services.
COUNTRY OF ORIGIN SPECIALISTS
Dr. Lynette Chua
Assistant Professor of Law, National University of Singapore
Professor Chua is a law and society scholar with research interests in law and social change, and law and social movements. Professor Chua works on LGBTI issues and activism in Singapore and Myanmar. She is conducting ongoing field research on LGBT issues in Malaysia. Professor Chua has offered expert opinion on LGBTI cases for Myanmar and Malaysia.