LGBTQ+ rights have yet to find its footing in Malaysia given the conservative nature of our nation, steeped with cultural and religious influence. Article 8(1) of the Federal Constitution states that all Malaysians are equal under the law and Article 8(2) provides the basis of non-discrimination except as expressly authorised by the Constitution. Yet, present-day laws against the LGBTQ+ community do not reflect this, with discrimination being faced by the community from multiple angles.
State-enacted Syariah laws at times criminalise gender expression other than that of which a person was assigned at birth, as well as same-sex relations for both men and women. Although the Court of Appeal decision in Juzaili Khamis on gender expression was a positive development, the decision was not enough to protect the right to expression of the trans community. In addition, the decision, which declared the unconstitutionality of the state-enacted law prohibiting cross-dressing was later reversed by the Federal Court.
On same-sex relations, the recent decision of Re IPM declared Syariah laws criminalising the matter to be void. Nonetheless, the power of federal law remains. Section 377B of the Penal Code, which criminalises “intercourse against the order of nature” is still in force. In terms of marriage, the Law Reform (Marriage and Divorce) Act 1976 supported by decisions such as those in Wong Chiou Yong, do not recognise gender other than the one assigned at birth. The Act also does not provide for same-sex marriages.
Besides the present laws that do not favour the community, there is an absence of specific laws to protect the LGBTQ+ community in our nation, be it to protect their right to express themselves or their rights against discrimination. By contrast, other countries in Asia have managed to show vast improvements to the law that serve to heighten protection of this vulnerable community. In 2018, the decision of the Supreme Court of India in Navtej Singh Johar and Ors v Union of India declared Section 377 of the Indian Penal Code (in pari materia with Section 377 of the Malaysian Penal Code) unconstitutional. The Supreme Court has also expanded the prohibited grounds of discimination based on ‘sex’ to include sexual orientation. In 1973, Singapore recognised gender-reassignment surgery thereby allowing transgender people to be married, while Taiwan legalised same-sex marriages in 2017.
The lack of legal reform on this issue only perpetuates adversities for the community. For instance, it is alarming that the Deputy Minister of the Prime Minister’s Department (Religious Affairs), Ahmad Marzuk Shaary proposed an amendment to the Syariah Courts (Criminal Jurisdiction) Act (Act 355) which seeks to allow state Syariah Courts to establish harsher sentences for same-sex conduct than the current maximum sentence permitted under federal law. Not only that, the proposed amendment would also criminalise change in gender and the creation of online content which could be deemed as indecent or controversial.
With these developments and the concerning lack of progress in the law for the community, the road to providing protection for the LGBTQ+ community in Malaysia is a long one ahead. Especially so, acknowledging the cultural and religious considerations as well as the complex nature of the issue in which many lack an understanding. Even so, it is imperative that the nation move towards a place where regardless of race, religion, sexual orientation and gender identity, all individuals are treated as equals by the law and are given adequate protection as needed.