Criminalisation
Challenging laws that oppress and criminalise.
Criminalisation
Challenging laws that oppress and criminalise.
In Malaysia, LGBTQ+ people face dual criminalisation under national civil laws and state shariah (Islamic) laws.
A total of 52 state shariah laws criminalise people solely based on their sexual orientation, gender identity, gender expression (SOGIE), and consensual sexual activities.
In Malaysia, LGBTQ and gender-diverse people face dual criminalisation under national civil laws and state shariah (Islamic) laws. A total of 52 state shariah laws criminalise individuals based on their sexual orientation, gender identity, gender expression (SOGIE), and consensual sexual activities.
Due to these laws, LGBTQ and gender-diverse people endure systemic oppression, including arbitrary arrests, detention, conversion practices, judicial caning, and raids on events. They also face harassment, abuse, and violence from state actors, service providers, and the public, both online and offline. There is currently no legal protection against discrimination and violence for LGBTQ and gender-diverse people in Malaysia.
Legal Challenges and Constitutional Reviews
Thanks to constitutional challenges led by LGBTQ people, allies, and human rights organisations, some of these laws have been successfully overturned:
- Section 66 of the Negeri Sembilan Shariah Criminal Enactment, which criminalised trans women based on their gender expression and identity.
- Section 28 of the Selangor State Shariah Criminal Enactment, which criminalised sex against the order of nature. The ruling had a major impact on the validity of similar laws in other states.
In the Section 28 case, the Federal Court ruled:
“… it can be postulated that having regard to the preclusion clause in item 1 of the State List, when the two Legislatures (Federal and State) legislate a law concerning the subject matter of criminal law, and the two laws touch on the same matter, the said laws cannot co-exist even if the said law is said to be against the precepts of Islam.”
Despite these precedents, criminalisation has intensified. Between 2019 and 2022, eight new anti-LGBTQ shariah laws were introduced across three states, targeting trans men, transmasculine, and gender-diverse people for their gender expression, identity, and transitioning.
Furthermore, broad and ambiguous state shariah laws—such as those related to insulting Islam and vice prevention—have been used to silence LGBTQ and gender-diverse people and prevent them from participating in public events and organisations.
Categories of Criminalization
The legal framework criminalizing LGBTIQ and gender-diverse people in Malaysia can be classified into three main categories:
- Laws that directly criminalise LGBTQ and gender diverse people
- Laws that disproportionately affect LGBTIQ and gender diverse people
- Other legal barriers
Federal Laws
- Sections 377A & B of the Penal Code criminalise carnal intercourse between consenting adults, carrying a maximum of 20 years’ imprisonment and mandatory whipping.
- Section 377D penalises gross indecency, often used in cases of political extortion involving actual or perceived sexual orientation.
State Syariah Laws
- Musahaqah (same-sex relations between women) is criminalised in 13 states, except Pahang.
- Attempted musahaqah is criminalised in Kelantan.
- Attempted liwat is criminalised in Melaka, Kelantan, and Terengganu.
- “Male person posing as a woman” laws criminalise trans women and gender-diverse people in all 14 states.
- “Female person posing as a man” laws criminalise trans men and gender-diverse people in six states: Sabah, Perlis, Pahang, Negeri Sembilan, Kelantan, and Terengganu.
- Sex against the order of nature is criminalised in Selangor, Sabah, Melaka, and Negeri Sembilan.
- Same-sex relations are specifically criminalised in Selangor.
- Changing gender is criminalised in Kelantan.
Note: The Federal Court’s Iki Putra and Nik Elin cases ruled that all “sex against the order of nature” and liwat laws are unconstitutional, making them null and void.
Federal Laws
- Dangerous Drugs Act provisions are often used to raid LGBTQ-friendly venues such as clubs and saunas.
- Section 372B of the Penal Code criminalises sex work, disproportionately affecting LGBTQ people.
- Section 7 of the Printing Presses and Publications Act censors LGBTQ-themed books and imprinted items, including watches.
- Section 233 of the Communications and Multimedia Act is used to prosecute LGBTQ and gender-diverse content creators and censor digital platforms.
- Section 9(5) of the Peaceful Assembly Act is used to investigate organisers of LGBTQ-inclusive public events.
- Section 21 of the Minor Offences Act penalises drunkenness and disorderly behaviour, historically used against trans women under assumptions of sex work involvement.
State Shariah Laws
- Vice prevention laws have been used against trans women and event organisers of LGBTQ-inclusive gatherings.
- Laws related to insulting Islam have been weaponised to prosecute trans women and suppress LGBTQ-inclusive religious discourse.
- Gendered laws, such as those penalising failure to perform Friday prayers, have been selectively enforced against trans women.
Legal Gender Recognition (LGR)
Change of name and gender markers is not legally accessible for trans and non-binary people, creating barriers to access healthcare, employment, freedom of movement, and all areas of life. LGR for intersex people is allowed although the process is not accessible, transparent, and quick.
Fatwas targeting LGBTQ and gender-diverse people
Religious fatwas (Islamic edicts) have been used to justify discrimination and limit rights:
- 1982: Gender affirmation surgery declared haram (forbidden).
- 1983 & 1989: Transgender identities declared haram.
- Ruling on national identity cards (only gazetted in Selangor).
- Fatwa on “pengkid” (trans-masculine identity) issued in at least seven states, including Johor, Kedah, Perak, Melaka, Kuala Lumpur, Penang, and Terengganu.
- Other fatwas restrict LGBTQ participation in events and criminalise advocacy efforts supporting LGBTQ rights.
Highlights
January 1, 2021