(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Article 377 of Myanmar’s Penal Code states that the ‘unnatural offence of carnal intercourse against the order of nature’ is liable to be punished with ‘transportation for life’, or with imprisonment for ten years to life as well as a fine. For information about how Article 377 affects LGBTI people in Myanmar, please see this video.
Additional provisions, while not explicitly criminalizing homosexuality, are used to target LGBTI people. These include: negligently spreading sexual disease (Penal Code sections 269 and 270), committing a public nuisance (Penal Code section 290), and the Emergency Provisions Act (section 5j), which bans any activity that may affect the morality of an individual or society in a negative way. The 1945 Police Act, section 35c, criminalizes wearing a disguise or a covered face between sunset and sunrise and has been used in arrests to target transgendered people.
The 2008 Constitution of Myanmar does not refer explicitly to sexual orientation or gender identity, but it does recognise the right to equality before the law regardless of race, sex and religion, and the right to freedom of assembly and association. The latter however is limited by laws enacted for ‘state security’.
Myanmar is not a signatory of the 1951 Convention Relating to the Status of Refugees, ICESCR, or ICCPR.
No case law could be found. We would be grateful if users of this website are able to refer us to any that they know of which involved LGBTI cases from Myanmar.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
There are reportedly about 240,000 LGBTI people in Myanmar. It is a common belief in Myanmar that ‘corrective’ actions may be exercised on LGBTI people, including the use of rape and religious institutionalisation. Many Myanmarese people maintain that the anti-sodomy law reflects cultural values and are opposed to its repeal. According to the US Department of State’s 2013 Country Report, there has been progress for LGBTI rights in Myanmar but discrimination has continued.
In early 2014 The Myanmar Times mis-reported the wedding of two gay men in Yangon. News sources reported the ceremony as a wedding and expressed outrage. Here is a video of the couple’s experience following the celebration. The experience of a lesbian couple’s struggles in Myanmar can be found here.
Laws against homosexuality are rarely enforced, however LGBTI people report that police use the threat of prosecution to extort bribes. LGBTI also people in Myanmar face discrimination and danger. A man who was reportedly stabbed to death as a result of his being gay in Yangon in 2011. In addition, there was an arrest in Hla Ku in February 2012 of a gay man, who was subsequently released in May of that year. There were a few cases filed against LGBTI people as a means of harassment. Harassment is common and may include rape by security forces, as reported regarding a gay man who was gang raped by nine police officers in Yangon. No legal action was taken.
In July 2013, twelve transgender and gay people in Mandalay were charged under section 35(c) in the Police Act of 1945, after allegedly being harassed by police. The police reportedly abused the twelve detainees verbally and physically while in custody, and denied an HIV-positive woman sentenced to access to antiretroviral therapy. Police officers claim they were targeting anyone who was ‘bothering’ the public, not just targeting LGBTI people. Colors Rainbow has filed a case against The Republic of the Union of Myanmar in regards to their abuse of LGBTI people during the arrests in Mandalay and as of 30 July, 2014, the judgment remains pending. Please contact Aung Myo Min for more information about the case.
The stigma and discrimination against of the LGBTI community also has consequences on public health. According to UNAids, about 240,000 people in Burma are affected by HIV/Aids, which is about 0.6% of the population. However, 29% of gay men in Burma are affected by HIV/aids. There are estimates that less than 20% of the people needing anti-retroviral treatment are receiving it. Aids experts say that due to the stigma, the LGBTI community remains in hiding and it is thus difficult to provide gay men with safe-sex information, counselling and testing services.
The Thomson Reuters foundation reports that some LGBTI people flee to Thailand in the hope of living in greater security. LGBTI refugees in Thailand’s Mae La refugee camp have reported abuse and discrimination. LGBTI people are not confident that current reforms in Myanmar will afford them the hope of repatriation (see Moses’ report in Forced Migration Review at page 11).
The Association of Southeast Asian Nations (ASEAN) Human Rights Declaration has been denounced by International Gay and Lesbian Human Rights Commission for making no provision for the security of LGBTI people from persecution in the region.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
Rays of Rainbows
Room No. 27 Kyauk Phyar Street, Bayint Naung Quarter, Kawthaung Township.
Tel: 95 (9) 250799408
Thai Ph: (66) 9 29850976
Colors Rainbow/The Human Rights Education Institute of Burma
Room 302, Building F, Anorahta Housing Compound, Kamayut Township, Yangon, Myanmar
Ph. (Myanmar) +(95) 9 400 44 7181, +(95) 9 731 22522
Ph. (Thailand) +(66) 0 83 180 4811, +(66) 0827612760
The Human Rights Education Institute of Burma (HREIB) is a nongovernmental organization which facilitates a broad range of human rights education and advocacy programs. HREIB was founded in 2000 with the goal of empowering the people of Burma through human rights education to engage in social transformation and promote a culture of human rights. Our network is comprised of representatives from 25 areas throughout Burma and over 23 Burmese LGBT CBOs. Colors Rainbow produces a Burmese-language website, TV program, and magazine covering LGBT rights issues in Burma and abroad. Additionally, each year CR holds community events to commemorate international days of awareness such as the International Day Against Homophobia and Transphobia (IDAHO), Transgender Day of Remembrance (TDoR) and World AIDS Day.
COUNTRY OF ORIGIN SPECIALISTS
Aung Myo Min
Aung Myo Min is the founder and Executive Director of Equality Myanmar formerly known as the Human Rights Education Institute of Burma (HREIB) and the Colors Rainbow LGBT Rights Project. He is a 1993 graduate of the Human Rights Advocate Program at Columbia University and the former head of the Human Rights Documentation Unit of the National Coalition Government of the Union of Burma. He was a student leader in Burma’s 1988 revolution and the first openly gay man among the democratic movement. Aung Myo Min has been awarded seven international awards for his human rights and LGBT rights work, including the 1999 Felipa De Souza award from the IGLHRC and the Honor of Courage award from the San Francisco City Board. Today, he conducts human rights trainings, advocacy, and research in both Thailand and Burma, where has recently returned for the first time after twenty-four years in exile.
Prof Lynette J Chua
Assistant Professor, Faculty 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 is conducting fieldwork on and writing about the emergence of LGBT rights mobilization in Myanmar at a time of political transition. She has also initiated a broader collaborative project to examine the development of LGBT rights activism across various Asian countries. She co-authored the upcoming piece (2015) “Sexual and Gender Minorities in Transition: LGBT Rights and Activism in Myanmar”. Professor Chua has provided expert opinions for LGBTI cases from Myanmar and Malaysia.
David Gilbert is a politics scholar focussing on LGBTI culture and society in Myanmar with interests in identity, regulation and everyday life. David has been doing fieldwork on and writing about the negotiation of trans belonging in Yangon. He previously worked in the non-profit sector on programs supporting Burmese activists and displaced people to gain access to higher education. He has worked in a variety of roles teaching, writing curriculum and establishing scholarship programs. David’s research on LGBT issues in Myanmar have appeared in a number of journals and blogs and he co-authored the upcoming piece (2015) “Sexual and Gender Minorities in Transition: LGBT Rights and Activism in Myanmar”. He has provided expert opinion for LGBTI cases from Myanmar in Australia.
Hla Myat Tun
Hla Myat Tun is heading Colors Rainbow. He has eight years of experience working on development programs in Myanmar and Thailand. During his time with the United Nations Population Fund in Burma, he conducted trainings throughout the country on issues such as reproductive health, gender, and human trafficking. In Thailand he has worked with local and national LGBT organizations as well as human rights documentation projects through the International Center for Transitional Justice. He is a leading LGBT rights activist as a head of Colors Rainbow and as well as coordinating Myanmar LGBT Rights Network since 2012 and has navigated the at times challenging environment of working with the many different groups belonging to the LGBT community and has created respect around LGBT’s work locally, nationally and internationally.
Researched by: Cassidy Rappaport and Katherine Burrows