Civil Rights Protections for LGBTQ Persons in Malaysia Under the Federal Constitution: The Elephant in the Room

lgbtq rights in malaysia
By: Tan Yoong Sern (Shawn)

Abstract

Malaysian Constitution is designed for all Malaysians to enjoy the fundamental liberties enshrined. The Constitution, since then, has become the supreme law of land, and any law which contravenes constitutional provisions will be void. Civil rights refer to a proclamation people must be treated in a just and humane manner, regardless of their race, religion or ethnicity in a state. Does the Constitution protect all persons, including LGBTQ persons? This paper devotes into this issue. It is argued that LGBTQ discrimination is disproportionate, yet pervasive and entrenched in society by current anti-LGBTQ legislations and practices. Such legislations should be revised to act in accordance to principles enshrined in the Constitution.

1. Introduction

A constitution drafted for the Federation of Malaya believed to mark the birth of a new nation, with well-established government branches and a constitutional monarchy. After being enforced in 1957, it was until 1963 the constitution was renamed as the Constitution of Malaysia (‘the Constitution’).1 This paper addresses legislations which contradicts provisions of Part II of the Constitution and against LGBTQ persons, with references to other Commonwealth jurisdictions. Discrimination based on sexual orientation and gender identity (SOGI) will be confronted. Applicability of relevant international laws will be explored.

Human rights are ‘fundamental liberties as enshrined in Part II of the Federal Constitution’.2 Therefore, human rights and civil rights are fundamentally identical by definition. Article 5, 8 and 10 in the Constitution are prime focus of this paper.3 Some of these rights are not absolute and subject to limitations imposed such as, inter alia, public order, morality or national security.4 Fundamental liberties in the Constitution, therefore, take a major position in dictating laws in Malaysia to respect and protect civil rights of all persons. By literal interpretation, LGBTQ persons are also included and continue to be protected regardless of their SOGI.

Sexual orientation refers to ‘an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes’.5 Some lesser known recognised orientations include, among others, lack of sexual attraction to others (asexuality) and sexual attraction to any gender (pansexuality). Biologists, psychiatrists and psychologists often support the existence of sexual orientation.6 It ranges along a continuum and determined by a complementarity of genetic, hormonal, social and cultural factors, yet pinpointing the exact cause of sexual orientation is inconclusive as sexuality studies is still in its infancy.7

Gender identity is defined as a self-conception as male or female.8 Gender ‘interacts with, but is different from, the binary categories of biological sex’. 9 Most identify their gender identity with assigned sex at birth (cisgender), but some identify their gender identity differing from their assigned sex at birth (transgender) or their gender identity falls outside of traditional gender binary norms (non-binary or gender non-conforming persons). Gender non-conformity is not a mental disorder.10 Distress or disability caused by gender non-conformity, however, could lead to diagnosis of gender dysphoria. Gender dysphoria include significant distress of conflict between their expressed gender and their assigned gender.11

Contrary to conventional wisdom that Malaysia was heteronormative and conservative, gender and sexuality was very relaxed in Malaysia’s historical culture. Sida-sida in Malaysia are men who dressed as women and had male-gendered partners, similar to bissus in Indonesia. They were well-respected with crucial roles in ritual and royal duties.12

LGBTQ people are stigmatised and disempowered in Malaysia due to government’s homophobic and transphobic reactions and misinformed population. The government is obligated to uphold basic rights of LGBTQ people as laid in the Constitution. Reviewed and credible research about SOGI should be made accessible to public to raise awareness.

3. Anti-LGBTQ+ Legislations

Albeit the Constitution guarantees fundamental liberties for LGBTQ persons, current laws continue to discriminate against LGBTQ persons – directly and indirectly. Several sections in Penal Code and state syariah laws are centrepiece in this paper.

3.1 Section 377A, 377B, 377D of Penal Code

Under section 377A, anyone who commits oral and/or anal sex can be charged and be punished subject to section 377B.13 Contrary to popular belief, both heterosexual and homosexual adults who committed consensual or non-consensual sex can be charged by the sections.

To where individuals be charged by this section was unclear. Police were able to conduct investigations, regardless of whether conduct was done in public or in private. Where an obiter dictum expressed right to privacy is an integral part of right to personal liberty14), this staged an immense invasion of privacy for straight and LGBTQ persons.

Exclusion of age and consent considerations in the section meant consensual same-sex and heterosexual conduct are legally identical from paedophilia or rape. By establishing penetration is sufficient melds sexual activity and sexual violence, obscuring between consensual sex and non-consensual sex. Hence, the persona of LGBTQ persons could readily be linked and integrated as hostile sexual offenders, both in common culture and before courts, although this does not affect straight persons.

Section 377D criminalises any person who commits ‘any act of gross indecency’ with another person in public or private.15 Since ‘indecency’ was not defined and it was up to the court’s discretion16, police and judges are able to assert their powers construed with their subjective backgrounds.

However, it could not be said section 377 as a whole is pointless in criminal law. Due to gender-specific terms used to criminalise rape in section 37517, sections 377C and 377CA are useful to criminalise rape and sexual assault cases where victim is a man. Section 377D is useful in dealing with cases such as flashing.

3.2 Future Possibilities

Despite the gender-neutral character of aforesaid sections, they continue to maintain the stigma against LGBTQ persons. These laws in place are inconsistent with constitutional rights of articles 5 and 8. Besides sections expressly or impliedly include private acts, lack of consent placed intrusive means of policing to individuals, such as enabling police to stop and search and other degrading practices.

‘Punishment never can oblige a man to believe, but only to pretend that he believes.’18 By imposing punishments based on legislators themselves, without regarding and withstanding the science and rational scrutiny behind effects of such punishments, can create injustice. Article 8(1) guarantees an individual in the same class regards the same as another individual in the same class.19 LGBTQ persons are severely mistreated vis-à-vis straight persons in most aspects of life – employment, discrimination or necessities. It is unequivocally affirmative that these laws have violated articles 5 and 8 of the Constitution. They can be repealed through judicial review of violating human rights at the High Court. It is submitted with case studies on the confrontation of section 377.

3.2.1 Societal Morality: Singapore

A High Court judgement in Singapore ruling in favour of retaining their section 377A, where it serves the purpose of upholding moral disapproval against male same-sex conduct in Singapore.20 Section 377A criminalises acts of gross indecency between males and did not inhibit the identity or status of a gay man.21 There was no comprehensive scientific consensus that a person’s sexual orientation was biologically determined such that it is immutable.22 If the manner where section 377A being enforced is arbitrary, an administrative review should be filed instead of a constitutional review.23

Despite cogent considerations, the judgement laid a few complications. Solely because sexual orientation is not biologically determined could not connote the non-existence of it. It is a stable, profound characteristic despite of its fluidity and should be protected from discrimination. Sexual identity is another, where the person chooses which sexual orientation to align and being expressed with. The secondary effects of prohibition faced by LGBTQ persons in Singapore has overlooked. Often, LGBTQ persons faced discrimination in most facets of life. They are also vulnerable to violence, blackmail and extortion. For same-sex conduct being outlawed, LGBTQ identity is also being outlawed in practice despite no reference to their identity.

This judgement should be distinguished from the legal climate in Malaysia. Section 377A in Singapore criminalises male same-sex sexual acts, section 377A in Malaysia criminalises both same-sex and opposite-sex sexual acts. Therefore, Malaysia has a growing duty to either revise or repeal section 377A because of invasion of privacy and broadness of such section.

3.2.2 Constitutional Morality: India

India applies a different perspective. India’s Supreme Court struck down section 377 for its violation to right to equality in India’s constitution, decriminalising all consensual sex among adults, including same-sex conduct.24

LGBTQ rights cannot be denied just because it is a ‘miniscule minority’.25 LGBTQ persons being objectified by ‘mainstream’ opinions does not adhere to sanctity of the Indian Constitution, and if left ignored rises fear of tyranny of the majority, ‘perpetuating a certain culture’ grounded on ‘homophobic attitudes’ and made victims impossible to access justice.26) The ideal of ‘constitutional morality’ was used, where morality should be read by spirit and text of the Indian Constitution, with aims of promoting inclusiveness, ideals of justice and align popular morality with constitutional morality.27)

The merits of constitutional morality often outweigh the detriments. It promotes harmony in society by eliminating discrimination and prejudice faced by a minority. As a judiciary’s role is to protect fundamental liberties as enshrined in the Indian Constitution, one could never deny a right solely based on popular morality – cultural, religious or social.28

For Malaysia to challenge aforementioned sections on grounds of human rights violations by judicial review looms uncertainty. Foremost, section 377 in Malaysia is more similar to section 377 in India than one in Singapore. With courts willing to apply a humanising perspective in interpreting the Constitution29 , it is likely that constitutional rights extend to LGBTQ persons, especially on interpretation of ‘gender’ in Article 8(2). Fundamental liberties be denied solely on basis of religion is inordinate, as stated in Article 3(4) of the Constitution.

However, LGBTQ rights could be denied in judicial process. An element in test of proportionality could deny constitutional rights to LGBTQ persons if courts view it isreasonable to justify limitation of rights to achieve an objective30 , as in the case handled, although it is submitted that there were fallacious reasons to justify proportionality of section 377A and 377B.31 Courts can also nullify such application if an Act was passed before Merdeka Day.32 The last resort would be by amendment in Parliament, which amendment be approved by democratically-elected members, Senate and Yang Di-Pertuan Agong.

3.3 State Syariah Laws

Syariah33 is a state Islamic law that applies to all Muslims in Malaysia with orthodox Islamic notions on sexual transgressions, adopting ‘pray the gay away’ position.34 Syariah law is able to punish offences against precepts of Islam, with it being interpreted by state-controlled Muslim scholars (muftis) on issue of legal opinion (fatwa). Fatwas are binding when it is published in state gazettes and enforced in Syariah Courts.35 Syariah Courts are created by state enactments and have jurisdictions over matters involving mainly personal and family.36

Liwat,  musahaqah  and  cross-dressing  offences  target  LGBTQ  Muslims  in  syariah  law. Definition of liwat varies between states,37 yet it is directed at gay and bisexual Muslim men.

Definition of musahaqah also varies between states38 , but is often targeted at lesbian and bisexual Muslim women. Some state offences include other similar provisions in absence of or in conjunction with liwat and musahaqah39 . ‘Male person posing as woman’ and ‘female person posing as man’ offences in various states of Malaysia often target transgender and gender non-conforming Muslims.40

Provisions against LGBTQ persons in syariah laws lack consent and privacy, similar to the sections in Penal Code as discussed. Offences related to cross-dressing have limited transgenders and gender non-conforming persons’ gender expression. Thus, such offences are deemed to have violated article 5, 8 and 10 of the Constitution.

The validity of ‘male person posing as woman’ in Negeri Sembilan’s enactment was challenged by judicial review and was declared inconsistent with fundamental liberties of the Constitution.41 This has recognised transgenders and those who suffered gender dysphoria enjoy fundamental liberties. Unfortunately, Federal Court reversed the decision due to procedural non-compliance.42 However, the learned judge in Juzaili could have inferred in a later case43 the judgement was made per incuriam.

3.4 Future Possibilities

Syariah state criminal laws do not have jurisdiction over aforementioned offences. State syariah laws can only impose criminal offences that are not within federal law jurisdictions.44 Same-sex conduct is criminalised under section 377A and 377B of Penal Code, hence states do not have authority to create liwat and musahaqah offences. Transgenders and gender non-conforming persons could be charged for ‘indecent behaviour’45 and section 377D of Penal Code, hence state syariah laws do not have authority over offences against transgenders and gender non-conforming persons. If sections against LGBTQ persons in general dealt in federal law were repealed or given a restrictive definition to exclude LGBTQ persons, syariah law can enact offences against LGBTQ persons and apply to Muslims.

State laws trespassing their legislative powers are rarely challenged by courts. Challenging syariah law does not challenge religion – it is a mere point of law between federal and state jurisdictions over matters that needs review. Other problems within state syariah laws include distinction between crime and sin in Islamic jurisprudence and different punishments of same crime.46

4. Discrimination Based on SOGI

In addition to laws in place, they have been used to strengthen LGBTQ-negative opinions in practice. Granting capability of moral policing could and have been used in an oppressive and discriminatory manner. Raids of gay clubs, threats to LGBTQ activists, physical violence and banning of alleged LGBTQ scenes in films are faced by LGBTQ persons, limiting their freedom from degrading treatment, freedom of expression and personal liberty.47

The Constitution regrettably operates as a fragile shield for LGBTQ persons, with prevalent state-sponsored homophobia and LGBTQ-negative comments. Mukhayyam program initiated by Department of Islamic Development (JAKIM) was criticised as a disguise of conversion therapy – an attempt to ‘guide’ LGBTQ persons to the ‘right path’. Studies and Malaysia AIDS Council have denounced such pseudoscientific practices for being psychologically harmful than effective to LGBTQ persons.48 The call-out culture in online and offline media platforms is a cause of many LGBTQ persons’ deteriorating mental health, not their own SOGI.49 While some LGBTQ-negative comments premises on religion, the same religion could not justify such hate to be moral and appropriate.50 Religious authorities can do, at least, is to appeal for tolerance and adopt ‘hate the sin, not the sinner’ position.

A few positive steps were taken of moving away from LGBTQ discrimination. Several leaders have voiced out in support for LGBTQ persons.51 Kuala Lumpur Bar established a Gender Equality & Diversity Committee to promote non-discriminatory workplace cultures.52 It was probably understood as such because LGBTQ discrimination yields destructive consequences in economic development.53 The government should take steps against cyberbullying of marginalised communities, including LGBTQ persons.

5. Relevancy of International Law

The legal effect of international law proves vacillating among Malaysian courts. International law is not interpreted as a ‘law’ in the Constitution and thus to have no legal effect on national law.54 Nonetheless, due to the world’s rapid inter-connectedness in this era, the need to oblige with international norms and standards has steadily risen.

International law only takes legal effect when it is enacted in Parliament or judges declared international norms to be applied in domestic law.55 Examples are Universal Declaration of Human Rights (UDHR) in the HRCMA 1999 and Convention on Rights of Child being fulfilled by Child Act 2001.56

UDHR remained inferior and only to be read in consistent with fundamental liberties of the Constitution.57 Noorfadilla apply a restrictive approach to UDHR, claiming it was a mere declaration and unalike a convention like CEDAW, does not have legal effect on domestic matters.58 Therefore, with concerned recommendations from CEDAW Committee on SOGI59 , it seems, by having acceded to CEDAW, Malaysia has an obligation to protect LBTQ women. However, it was clarified that CEDAW has yet to be legislated in domestic law, thus having no legal effect.60)

Article 12 (right to privacy) and article 16 (right to marry) of are some of articles in UDHR which Malaysia could incorporate into domestic law in SOGI perspective and general society.61 No scientific basis holds to deny marriage rights for same-sex couples, as there is no compelling evidence pinpoints same-sex-parents-raised children performing worse than opposite-sex-parents-raised children.62 Notwithstanding the inclusivity, the Constitution should be read in a humanising view but the language being interpreted should not be perverted in interest of any legal or constitutional theory.63

6. Conclusion

In essence, all human beings have their SOGI. Whilst the majority identifies as heterosexual and cisgender, some gender and sexual minorities identify as otherwise. Human rights are not Western imports, but ought to apply universally to any human being irrespective of their differences. By imposing laws that are discriminatory towards LGBTQ persons, augmented with them being publicly stigmatised by society, lacks scientific, medical and constitutional justification, thereby failed to protect LGBTQ rights as enumerated by the Constitution. Despite individuals may hold their grounds on religion, the same religion could not sustain that denying rights for LGBTQ persons’ access to employment, housing, healthcare, justice, fundamental liberties and freedom from discrimination and persecution are reasonable.

There shall be no discrimination on basis of SOGI because there is no permissible basis of such discrimination to be done against them. LGBTQ identity is a largely intrinsic matter rather than a political matter – akin to race and religion. As expressed by Suffian LP:

[O]ur people should be mature enough to realize the importance as regard sensitive issues of keeping the political temperature down rather than up, […] and that they are a vital instrument in nation-building.64

By opening up with marginalised groups – women, LGBTQ persons or Orang Aslis – and allowing them to engage in open discourse can provide an ‘authentic condition for genuine emancipation’, subject to attitudes towards such groups from state, society and individuals.65 It only takes one step: enter the room and approach the elephant, gaining mutual understanding of an inclusive and harmonious society. Perhaps LGBTQ persons are not, after all, any less human than other human beings.

  1. Malaysia Act 1963 (UK), s 4(1) []
  2. HRCMA, Human Rights Commission of Malaysia Act 1999 (Act 597), s 2 []
  3. Malaysian Constitution, pt II; The fundamental liberties are the right to life and personal liberty (art 5), prohibition of slavery (art 6), protection against retrospective criminal laws (art 7), equality before the law (art 8), freedom of movement (art 9), speech, assembly and association (art 10), religion (art 11), right to education (art 12) and property (art 13) []
  4. For example, ibid art 5 cl 2(a) []
  5. American Psychological Association, ‘Answers to your Questions: For a Better Understanding of Sexual Orientation and Homosexuality’ (2008), 1 <www.apa.org/topics/sorientation.pdf> accessed 25 May 2020 []
  6. Feeling attracted to the same-sex is not a mental disorder nor a disease. See n 5; Emily Underwood, ‘No Scientific Basis for Gay-specific Mental Disorders, WHO Panel Concludes’ (Science 2 July 2014) https://www.sciencemag.org/news/2014/07/no-scientific-basis-gay-specific-mental-disorders-who-panel-concludes accessed 27 May 2020; Richard D Lyons, ‘Psychiatrists, in a Shift, Declare Homosexuality No Mental
    Illness’(TheNewYorkTimes,16December1973) https://www.nytimes.com/1973/12/16/archives/psychiatrists-in-a-shift-declare-homosexuality-no-mental-illness.html accessed 27 May 2020; J Michael Bailey and others, ‘Sexual orientation, Controversy, and Science’ (2016) 17(2) Psychol Sci Public Interest 45-101, 61-62 https://doi.org/10.1177/1529100616637616 accessed
    28 May 2020. See also “All people choose their partners regardless of their sexual orientation; however, the orientation itself is not a choice.” https://apastyle.apa.org/style-grammar-guidelines/bias-free-language/sexual-orientation accessed 28 May 2020 []
  7. American Psychological Association (n 5) 2 []
  8. Shuvo Ghosh, ‘Gender Identity’ (Caroly Pataki ed, MedScape 16 March 2015) <https://emedicine.medscape.com/article/917990-overview> accessed 28 May 2020 []
  9. Mary Manandhar and others, ‘Gender, Health and the 2030 Agenda for Sustainable Development’ (2018) 96(9) Bull World Health Organ 644–653, 644 <https://doi.org/10.2471/BLT.18.211607> accessed 28 May 2020 []
  10. 10 Ranna Parekh, ‘What Is Gender Dysphoria?’ (American Psychiatric Association February 2016) https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria accessed 29 May 2020 []
  11. ibid. []
  12. “So accepted was gender diversity in Malaysia that as late as the 1960s ‘specialized homosexual villages’ existed in Kelantan, with one even abutting the Sultan’s palace” Julian C. H. Lee, Policing Sexuality: Sex, Society, and the State (Zed Books 2012) 98-99. See also Christina Pratt, An Encyclopedia of Shamanism (The RosenPublishing Group 2007) 280 []
  13. Penal Code (Act 574), ss 377A and 377B []
  14. Sivarasa Rasiah v Badan Peguam Malaysia [2012] 6 MLRA 375 [15] (Gopal Sri Ram FCJ []
  15. Penal Code (n 13), s 377D []
  16. Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia [1999] 1 MLRA 175 [20] (EusoffChin CJ) []
  17. Penal Code (n 13), s 375. Rape refers to a man sexual intercourse with a woman under circumstances that was, inter alia, against her will or without her consent []
  18. Jeremy Bentham, Theory of Legislation (Richard Hildreth tr, 2nd edn, Trübner & Co 1871) 435 []
  19. PP v Khong Teng Khen [1976] 1 MLRA 16, 24-25 (Suffian LP); Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd [2004] 1 MLRA 20 [39] (Augustine Paul JCA) []
  20. Ong Ming Johnson v Attorney-General [2020] SGHC 63 [298] (See Kee Oon J) []
  21. ibid [281] – [282] (See Kee Oon J) []
  22. ibid [278] – [279] (See Kee Oon J) []
  23. ibid [287] (See Kee Oon J) []
  24. Navtej Singh Johar v Union of India [2018] 4 MLJ (Crl) 306 []
  25. ibid [160] (Dipak Misra CJI) []
  26. ibid [51] (Chandrachud J []
  27. ibid [141] (Chandrachud J []
  28. ibid [94], [113] (Dipak Misra CJI) []
  29. Lee Kwan Woh v PP [2009] 2 MLRA 286 [12] (Gopal Sri Ram FCJ) []
  30. Sivarasa (n 14) [30] (Gopal Sri Ram FCJ) []
  31. Abdul Rahim Abd Rahaman v PP [2010] 2 MLRA 353 [10] (Suriyadi Halim Omar JCA) with emphasis on sub-ss (c), (d) and (f). While s 377B remains effective in sexual assault cases as with the case aforementioned, it is submitted that the learned judge’s comments on linking HIV/AIDS persons to hostile sexual offenders and irrelevancy on the element of consent in s 377B has reinforced the stereotypes of LGBTQ persons and disregarded the quintessential dissimilarity between consensual sex and non-consensual sex []
  32. Malaysian Constitution (n 3), art (4)(1) []
  33. 33 This paper uses the Malay spelling of “sharia”. The syariah follows the shafi’i Islamic school of thought which is predominant in Malaysia. See Jan Michiel Otto (ed), Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present (Leiden University Press 2010) 501 https://openaccess.leidenuniv.nl/bitstream/handle/1887/21170/file221087.pdf?sequence=1 accessed 6 June 2020 []
  34. See, inter alia, Memahami Lesbian, Gay Biseksual dan Transgender (LGBT) dari Perspektif Seorang Muslim <http://www.islam.gov.my/images/ePenerbitan/Memahami_LGBT_Dari_Perspektif_Seorang_Muslim.pdf> accessed 8 June 2020. cf Scott Siraj al-Haqq Kugle, ‘Sexuality, Diversity, and Ethics in the Agenda of Progressive Muslims’ in Omid Safi (ed), Progressive Muslims: On Justice, Gender and Pluralism (Simon and Schuster 2003); Siti Musdah Mulia, Understanding LGBT Issues in Islam: Promoting the Appreciation of Human Dignity (Istanbul, 2nd CSBR Sexuality Institute 2009); Scott Siraj al-Haqq Kugle, ‘Sexual Diversity in Islam: Is There Room in Islam for Lesbian, Gay, Bisexual and Transgender Muslims?’ (Muslims for Progressive Values, 2010) <https://www.mpvusa.org/sexual-diversity> accessed 10 June 2020 []
  35. Zaini Nasohah and others, ‘Standardisation of Fatwa in Malaysia: Management and Problems’ (2012) 6(6) Adv in Nat Appl Sci 923-929, 923 []
  36. Malaysian Constitution (n 3), art 74, read together with Sch 9, List II, para 1 []
  37. All states except Pahang, Perak and Selangor have provisions of liwat. Federal Territories (Kuala Lumpur, Putrajaya and Labuan), Johor, Melaka, Negeri Sembilan, Penang and Sarawak defined liwat as ‘sexual relations between men’. Sabah defined liwat as ‘sexual intercourse between men’. Kedah and Perlis defined liwat as ‘sexual intercourse between men and between a man and a woman’. Terengganu defined liwat as ‘carnal intercourse between a male and another male or between a male and a female other than his wife performed against the order of nature, that is through the anus’, but is unenforceable due to the punishments prescribed being ultra vires of federal limits. Liwat is not defined in Kelantan. Consent is absent in Federal Territories, Johor, Negeri Sembilan, Penang and Sarawak, whereas ‘wilful’ liwat is stated in Kedah, Kelantan, Melaka, Perlis, Sabah and Terengganu []
  38. All states except Pahang and Selangor have provisions of musahaqah. Federal Territories, Johor, Melaka, Negeri Sembilan, Penang, Perak, Terengganu and Sarawak defined musahaqah as ‘sexual relations between women’. Kedah, Perlis and Sabah defined musahaqah as ‘sexual intercourse between women’. Musahaqah is not defined in Kelantan. Consent is absent in Federal Territories, Johor, Negeri Sembilan, Penang, Terengganu and Sarawak, whereas ‘wilful’ musahaqah is stated in Kedah, Kelantan, Melaka, Perak, Perlis and Sabah []
  39. Melaka, Negeri Sembilan, Sabah and Selangor have provisions of ‘sexual intercourse against the order of nature’ where they are undefined in their enactments. ‘Sexual relations between persons of the same gender’ only applies in Selangor. In addition, ‘attempt to commit liwat’ applies in Melaka []
  40. All states have provisions of ‘male person posing as woman’. Said provisions in Federal Territories, Johor, Pahang, Penang, Perak, Selangor, Sarawak and Terengganu only applies in cases of “immoral purposes” and “without good reasons” in Melaka. Said provisions apply without restrictions in Kedah, Kelantan, Negeri Sembilan, Perlis and Sabah. ‘Female person posing as man’ is a provision in Pahang, Perlis and Sabah []
  41. Muhamad Juzaili Bin Mohd Khamis v State Government of Negeri Sembilan [2015] 1 MLRA 570 []
  42. State Government of Negeri Sembilan v Muhammad Juzaili Mohd Khamis [2015] 6 MLRA 117 []
  43. Gin Poh Holdings Sdn Bhd v Government of the State of Penang [2018] 2 MLRA 547 [33] (Raus Sharif CJ) []
  44. Malaysian Constitution (n 3), Sch 9, List II, para 1. See also Shad Saleem Faruqi, ‘Jurisdiction of State Authorities to Punish Offences Against the Precepts of Islam: A Constitutional Perspective’ (2005) 1 INSAF The Journal Of The Malaysian Bar 67-104, 86-87 https://www.malaysianbar.org.my/cms/upload_files/document/Insaf%202005%20-%20Volume%201.pdf accessed 12 June 2020 []
  45. Minor Offences Act 1955 (Act 336), s 21 []
  46. See Shad Saleem Faruqi, ‘Enhancing Syariah Courts’ Powers’ (Malaysia Today, 9 June 2016) <https://www.malaysia-today.net/2016/06/09/enhancing-syariah-courts-powers-2/> accessed 14 June 2020. See also Danaharta (n 19) [39] (Augustine Paul JCA) []
  47. 47 See, inter alia, Zurairi AR, ‘After Blue Boy, FT Ministry says Public Complaints Welcome for more Gay Club Raids’ Malay Mail (Petaling Jaya, 6 Sep 2018) https://www.malaymail.com/news/malaysia/2018/09/06/after-blue-boy-ft-ministry-says-public-complaints-welcome-for-more-gay-club/1670012 accessed 17 June 2020; Michael Taylor, ‘Malaysian LGBT+ Activist Accuses Authorities of Intimidation’ Thomson Reuters (New York,29 April 2019) https://www.reuters.com/article/us-malaysia-lgbt-rights-interview/malaysian-lgbt-activist-accuses-authorities-of-intimidation-idUSKCN1S51JX accessed 17 June 2020; Beh Lih Yi, ‘Death of Transgender Woman in Malaysia Sparks Fears of Rising Hate Crime’ Thomson Reuters (New York, 17 December
    2018) https://www.straitstimes.com/asia/se-asia/death-of-transgender-woman-in-malaysia-sparks-fears-of-rising-hate-crime accessed 17 June 2020; Dr Zahidul Islam, ‘Censorship Board’s Duty to Protect Public fromNegative Influence’ New Straits Times (Kuala Lumpur, 1 December 2018) https://www.nst.com.my/opinion/letters/2018/12/436257/censorship-boards-duty-protect-public-negative-influence accessed 17 June 2020 []
  48. (2009) Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 91 http://www.apa.org/pi/lgbc/publications/therapeutic-resp.html accessed 19 June 2020; ‘AIDS Council Slams JAKIM’s ‘Conversion Therapy’ for LGBTs’ Free Malaysia Today (Petaling Jaya, 24 December 2018) https://www.freemalaysiatoday.com/category/nation/2018/12/24/aids-council-slams-jakims-conversion-therapy-for-lgbts/?fbclid=IwAR0OjvTYeT7jFB-ARlN0__nO2oziybew2Oevv9T_9cT2aBr7AcTRcQefcFY accessed 20 June 2020 []
  49. 49 Ilan H Meyer, ‘Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual Populations: Conceptual Issues and Research Evidence’ (2003) 129(5) Psychol Bull, 674–697 https://doi.org/10.1037/0033-2909.129.5.674 accessed 19 June 2020; Michael King and others, ‘A Systematic Review of Mental Disorder, Suicide, and Deliberate Self Harm in Lesbian, Gay and Bisexual People’ (2008) 8(70) BMC Psychiatry https://doi.org/10.1186/1471-244X-8-70 accessed 19 June 2020 []
  50. See, inter alia, ‘Cabinet Deems Caning of Women Inappropriate’ Malaysiakini (Petaling Jaya, 6 September 2018) <https://www.malaysiakini.com/news/441934> accessed 19 June 2020; Annabelle Lee, ‘Mujahid: Stop Discriminating Against Transgender People’ Malaysiakini (Petaling Jaya, 10 August 2018) <https://www.malaysiakini.com/news/438377> accessed 19 June 2020 []
  51. See, inter alia, Vinodh Pillai, ‘LGBTs Not Asking for Anything Extra, Marina tells Critics’ Free Malaysia Today (Petaling Jaya, 5 August 2018) https://www.freemalaysiatoday.com/category/nation/2018/08/05/lgbts-not-asking-for-anything-extra-marina-tells-critics/ accessed 19 June 2020; Boo Su-Lyn, ‘LGBTs are also human, Malaysian Bar tells Putrajaya’ Malay Mail (Petaling Jaya, 14 March 2019) https://www.malaymail.com/news/malaysia/2019/03/14/lgbts-are-also-human-malaysian-bar-tells-putrajaya/1732747 accessed 19 June 2020 []
  52. ‘KLBC Sub-committees’ (The Kuala Lumpur Bar) <https://www.klbar.org.my/about-us/kl-bar-sub-committees/> accessed 20 June 2020 []
  53. MV Lee Badgett, Kees Waaldijk and Yana van der Meulen Rodgers, ‘The Relationship Between LGBT Inclusion and Economic Development: Macro-level Evidence’ (2019) 120 World Development, 1-14 <https://doi.org/10.1016/j.worlddev.2019.03.011> accessed 21 June 2020 []
  54. Malaysian Constitution (n 3), art 160(2) []
  55. Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak [2013] 5 MLRH 111 [107] (Lee Swee SengJC) []
  56. HRCMA (n 2), s 4(4); Child Act 2001 (Act 611) []
  57. HRCMA (ibid), s 4(4) []
  58. Noorfadilla bt Ahmad Saikin v Chayed bin Basirun [2012] 1 MLRH 504 [23]–[24] (Zaleha Yusof J) []
  59. CEDAW ‘Concluding Observations on the Combined Third to Fifth Periodic Reports of Malaysia’ (14 March 2018) paras 47-48, UN Doc CEDAW/C/MYS/CO/3-5 []
  60. AirAsia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ 318 at [37] (Mohd Zawawi Salleh JCA []
  61. UDHR, Universal Declaration of Human Rights, arts 12 and 16 []
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  63. Pathmanathan a/l Krishnan v Indira Gandhi a/p Mutho [2016] 4 MLJ 455 at [69] (Balia Yusof Wahi JCA); cf Lee Kwan Woh (n 29) []
  64. Merdeka University Bhd v Government of Malaysia [1982] 1 MLRA 643, 657 []
  65. Mohd Darbi Hashim, ‘Of Morality and Individualism in Malaysia’ (2006) 67(1) Akademika 103-08, 107 []