Malaysia: Treatment of sexual minorities (August 2004 - August 2005)
| Publisher | Canada: Immigration and Refugee Board of Canada |
| Author | Research Directorate, Immigration and Refugee Board of Canada, Ottawa |
| Publication Date | 30 August 2005 |
| Citation / Document Symbol | MYS100434.E |
| Reference | 2 |
| Cite as | Canada: Immigration and Refugee Board of Canada, Malaysia: Treatment of sexual minorities (August 2004 - August 2005), 30 August 2005, MYS100434.E, available at: https://www.refworld.org/docid/45f148012.html [accessed 25 May 2023] |
| Comments | Corrected version March 2007 |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Legislation
Sex between men is illegal in Malaysia (Sodomy Laws 26 Mar. 2005; The Advocate 20 Sept. 2004; Country Reports 2004 28 Feb. 2005, Sec 5; AP 24 Feb. 2004; Le Monde 9 Oct. 2004; ILGA July 2002; FEER 28 Oct. 2004; Fridae n.d.a; Malaysia 7 Aug. 1997). While not explicitly making reference to homosexuality, Section 377 of the Malaysian Penal Code punishes "carnal intercourse against the order of nature" by whipping and imprisonment for a maximum of 20 years (ibid.; Sodomy Laws 26 Mar. 2005; see also AP 24 Feb. 2005; FEER 28 Oct. 2004). Article 377A of the Malaysian Penal Code considers male-receptive oral sex and anal intercourse to fall under the category of "carnal intercourse against the order of nature" (Malaysia 7 Aug. 1997).
Country Reports 2004 claimed that the laws against homosexuality "are enforced" (25 Feb. 2005, Sec. 5). According to the Associated Press (AP), however, "the laws [forbidding homosexuality] are only enforced occasionally and punishment typically results in a short jail term or fine" (24 Feb. 2005). Neither of these allegations could be corroborated by the Research Directorate within time constraints.
Government
In response to the British Navy's agreement to promote the rights of homosexuals, Royal Malaysian Navy Chief Mohd Anwar Mohd Nor allegedly stated in February 2005 that homosexuals would not be admitted into the Malaysian Navy (Today 25 Feb. 2005; AP 24 Feb. 2005; New Straits Times 24 Feb. 2005). He further indicated that he was opposed to "such unnatural sex acts" and needed to "protect the image of the navy" (Today 25 Feb. 2005; New Straits Times 24 Feb. 2005). A day later, the navy chief's words were echoed by the deputy defense minister, who said gays and lesbians would never be allowed to join the military because their behaviour is "against Islam and also against the laws of [Malaysia]" (AP 24 Feb. 2005).
In September 2004, Anwar Ibrahim, Malaysia's former deputy prime minister, was released from prison after serving six years on charges of sodomy, charges which were later overturned by Malaysia's High Court (The Advocate 20 Sept. 2004; see also AFP 26 June 2005). In addition, the High Court reportedly awarded Ibrahim US$1.2 million in damages following the wide distribution of a pamphlet by his political opponents in 1998, entitled "Fifty Reasons Why Anwar Ibrahim Cannot Be Prime Minister" (BBC 18 Aug. 2005). Among these reasons was the allegation that Ibrahim was homosexual (ibid.). Former Prime Minister Mahathir Mohamed, who had fired Ibrahim in 1998 for his alleged homosexuality (FEER 16 Sept. 2004), even after his September 2004 release from prison continued to publicly accuse Ibrahim of having engaged in homosexual acts (AFP 9 Nov. 2004).
Agence France-Presse (AFP) reported that since his release from prison, Ibrahim has expressed support for the modification of legislation on homosexuality to allow for less interference in the private lives of Malaysia's citizens (10 Nov. 2004).
Society
The Gay in Malaysia and Fridae (Asia Gay and Lesbian Network) Websites contain details on a number of gay and gay-friendly bars, clubs (Fridae n.d.b; Gay in Malaysia n.d.), saunas, and hotels in Kuala Lumpur (ibid.).
The Fridae gay city guide to Kuala Lumpur mentioned a "vice squad" that, acting in addition to the police, could catch gay men or women who were indiscrete (n.d.c), but no further information on the mandate or activities of vice squads could be found among the sources consulted by the Research Directorate within time constraints.
Country Reports 2004 stated "religious and cultural taboos against homosexuality were widespread" (25 Feb. 2005, Sec. 5). According to Fridae, the Asia Gay and Lesbian Network, public displays of affection between same-sex or opposite-sex couples is not condoned, including in "more cosmopolitan" Kuala Lumpur (n.d.a). A 10 November 2004 article published in The Malay Mail cited the leader of a Presbyterian church as saying that his church would offer pastoral counselling to transsexuals.
Transsexuals
An article published by The Malaysian Bar estimated that the proportion of transsexuals in Malaysian society could be as high as one in every 200 individuals (1 Feb. 2005). While there are no laws prohibiting sex reassignment surgery or gender reassignment therapy, no laws allow Malaysian transsexuals to officially change their gender on public documents (The Malaysian Bar 1 Feb. 2005). In addition, the Council of Rulers purportedly forbids Muslims from undergoing sex change operations (ibid.). According to The Malaysian Bar,
[b]ecause transsexuals cannot change their identification cards, they face constant harassment and persecution from the police and religious authorities, cannot undergo burial rites in accordance with their religious beliefs, are often refused employment, are deprived of the right to marry lawfully although they are fully functioning members of their chosen sex and are exposed to other dangers such as hate crimes when their sex at birth is revealed. The transsexual community has reported harassment and discrimination even in attempting to open a bank account or applying for a passport. They also face difficulty in finding employment because employers inevitably learn that they were born in the other sex. There are no laws in Malaysia that rule that discrimination against transsexuals at work is unlawful (1 Feb. 2005).
In March 2005, the Taiping Religious Department allegedly arrested a man wearing women's clothes while he was sitting in the garden of a friend's house (Sunday Mail 20 Mar. 2005; see also New Straits Times 7 Apr. 2005). When the officers realized that the transsexual was not Muslim, they promptly released him; the man later complained to police on the grounds of "wrongful arrest, abuse of power and brutality" (Sunday Mail 20 Mar. 2005). While the government does not have any data on the number of people arrested in Malaysia for being transsexual, the Minister of the Women, Family and Community Development Ministry said that there were no Malaysian laws against transsexuals or transvestites since the expression of either of these identities does not break any Malaysian laws (Malaysian Bernama 14 Sept. 2004). However, according to The Malaysian Bar, when transsexuals are detained by police, many end up being victims of sexual violence such as being forced to strip (1 Feb. 2005).
In November 2004, several sources reported that a man who had undergone a sex change and was previously a woman lost his bid to the Ipoh High Court to be legally recognized as a male (The Malaysian Bar 1 Feb. 2005; Sunday Mail 21 Nov. 2004; New Straits Times 20 Nov. 2004; ibid. 16 Nov. 2004; Malaysian Bernama 4 Nov. 2004; see also BBC 5 Nov. 2004). While the High Court stated that Malaysian law did not recognize transsexuals, the deputy home minister declared that the Birth and Death Act of 1957 "will be studied for amendments to cater [to] transsexuals who have undergone sex changes" (Sunday Mail 21 Nov. 2004). As well, the government has indicated that it would consider allowing transsexuals to state their new gender in passports and identity cards, provided that certain laws are amended (New Straits Times 16 Nov. 2004). While two lawyers have agreed to represent the transsexual pro bono in an appeal (New Straits Times 20 Nov. 2004), no information on the outcome of this appeal could be found among the sources consulted by the Research Directorate.
According to the Sunday Mail, the Bar Council, non-governmental organizations and religious groups support the rights of transsexuals in Malaysia (21 Nov. 2004). However, the Sunday Mail article adds that many transsexuals have difficulty finding employment (Sunday Mail 21 Nov. 2004; New Straits Times 16 Nov. 2004) and are sometimes abandoned by their families (Sunday Mail 21 Nov. 2004). Possibly as a result, many allegedly turn to prostitution (The Malaysian Bar 1 Feb. 2005; New Straits Times 16 Nov. 2004).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.
References
The Advocate [Los Angeles]. 20 September 2004. Kevin Kumala. "Malaysia's Long Sodomy Battle." (Sodomy Laws Website). Agence France-Presse (AFP). 26 June 2005. "Rights Group Says Malaysian Scorecard Marred by Extremism, Detentions." (Dialog/WNC) Associated Press (AP). 24 February 2005. Jasbant Singh. "Malaysia Armed Forces WillNever Allow Gays to Join, Officials Say." (Dialog)
British Broadcasting Corporation (BBC). 18 August 2005. Jonathan Kent. "Malaysia's Anwar Wins Libel Case." Country Report on Human Rights Practices for 2004. 25 February 2005. "Malaysia." United States Department of State. Washington, DC. Far Eastern Economic Review (FEER) [Hong Kong]. 28 October 2004. "Gay Asia: Gays and the Law." (Factiva) Fridae – Asia Gay and Lesbian Network. N.d.a. "Introduction." City Guides: Kuala Lumpur. Gay in Malaysia. N.d. "Gay in Malaysia." The International Lesbian and Gay Association (ILGA). N.d. "Malaysia." World Legal Survey. The Malay Mail [Kuala Lumpur]. 10 November 2004. "Church Counselling for Transsexuals." (Factiva)
Malaysia. 7 August 1997. Penal Code (Act No. 574). United Nations High Commissioner for Refugees (UNHCR) Refworld 2004.
The Malaysian Bar. 1 February 2005. Wong Ee Lynn. "Neither Here Nor There: The Legal Dilemma of the Transsexual Community in Malaysia." Malaysian National News Agency – Bernama. 4 November 2004. "Court Rejects Woman's Bid to Register as Male." (Factiva) Le Monde [Paris]. 9 October 2004. Louis G T. "Les embrouilleurs de filiations (l'adoption par des couples homosexuels)." (Dialog)
New Straits Times [Kuala Lumpur]. 7 April 2005. Syed Nadzri. "Civil Liberties Trampled on with Impunity." (Factiva) Sodomy Laws. 26 March 2005. "Malaysia." Sunday Mail [Kuala Lumpur]. 20 March 2005. Baidura Ahmad. "The JAWI Debate Continues." (Factiva) Today [Singapore]. 25 February 2005. "No Homosexuals in Malaysian Navy, Says Chief." (Sodomy Laws Website). Additional Sources Consulted
Internet Sites, including: Aliran, Amnesty International (AI), European Country of Origin Information Network (ECOI), Freedom House, Gay Crawler, Gay Malaysia Network, Gay Times [London], Global Gayz, Human Rights Watch (HRW), Huriyah, International Gay and Lesbian Human Rights Commission (IGLHRC), Lesbigay Malaysia, Planet Out, The Star [Kuala Lumpur].
_____. 10 November 2004. Lawrence Bartlett. "Anwar pour un changement des lois sur l'homosexualité en Malaisie." (Dialog)
_____. 9 November 2004. "Malaysia's Laws on Gay Sex Need to be Amended: Anwar." (Factiva)
_____. 5 November 2004. Jonathan Kent. "Transsexual Debate in Malaysia."
_____. 16 September 2004. S. Jayasankaran. "A Leader Returns: Judgment Gives Ammunition to Anwar's Foes." (Factiva)
_____. N.d.b. "Bars/Clubs." City Guides: Kuala Lumpur.
_____. N.d.c. "Travel Tips." City Guides: Kuala Lumpur.
_____. 14 September 2004. "Gov't Gathering Info on Transsexuals and Transvestites." (Factiva)
_____. 24 February 2005. M. Husairy Othman. "'No Room for Gays in Our Navy'." (Factiva)
_____. 20 November 2004. "Lawyers Offer to Help Transsexual over Gender Issue." (Factiva)
_____. 16 November 2004. Chow Kum Hor. "Transsexuals Share Grief." (Factiva)
_____. 21 November 2004. Vasanthi Ramachandran. "Transsexuals and the Law." (Factiva)
