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CEDAW in Defending the Human Rights of
Lesbians, Bisexual Women and Transgenders in Malaysia!
By Angela M. Kuga Thas
with the research assistance of Thilaga Sulathireh1
“…just as it would be unthinkable to deny anyone their human rights because of their race,
religion or social status, we must also reject any attempt to do so on the basis of sexual
orientation or gender identity. The Principles are a timely reminder of these basic tenets. States
have a legal obligation to investigate and prosecute all instances of violence and abuse with
respect to every person under their jurisdiction. Respect for cultural diversity is insufficient to
justify the existence of laws that violate the fundamental right to life, security and privacy by
criminalising harmless private relations between consenting adults.”
– Ms. Louise Arbour, the then High Commissioner for Human Rights, at the launch of the
Yogyakarta Principles in New York, November 2007
CEDAW2 as a framework for the
Respect, Protection, Promotion and Fulfilment of Human Rights
related to Gender Identity, Gender Expression and Sexual Orientation
The Convention on the Elimination of All forms of Discrimination Against Women (CEDAW),
ratified by Malaysia in 1995, is regarded as a leading international human rights treaty.3 It
contains the necessary policies, structures and processes to respect, protect, promote and fulfill
the human rights of those discriminated against in the areas of gender identity, gender expression
and sexual orientation.4 CEDAW is one of three human rights treaties that Malaysia has ratified to
date. The other two conventions are the Convention on the Rights of the Child (1995) and the
Convention on the Rights of Persons with Disabilities (2010).
The CEDAW Committee was first briefed on the impact of state and non-state violence and
discrimination against lesbian, bisexual and transgender individuals5 in July 2008 by lesbian
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1Part-time researcher with Knowledge and Rights with Young People through Safer Spaces (KRYSS).
2This paper describes the stigma, discrimination and persecution targeted at gays, lesbians, bisexual
women and transgenders (both male-to-female as well as female-to-male transsexuals) in Malaysia. In
describing the context and in presenting the case studies, the author endeavours to present arguments as to
why and how the application of CEDAW in Malaysia can and should include the protection of human rights
of lesbians, bisexual women and transgenders in relation to gender identity, gender expression and sexual
orientation. Some of the case studies in this paper are part of a research being conducted for the
International Gay and Lesbian Human Rights Commission (IGLHRC) to document violence and
discrimination faced by lesbians, bisexual women and transgenders in Malaysia. The research in Malaysia is
part of a collaborative regional research project in Asia undertaken by IGLHRC and partners.
3To-date, a total of 186 out of 193 countries have ratified CEDAW. It is only a few countries short of
becoming the first Convention that is universally ratified.
4The CEDAW Committee, as well as other human rights treaty bodies that monitor the implementation of the
International Covenant on Civil and Political Rights (ICCPR) - particularly the Human Rights Committee -
have already recognised sexual orientation as a prohibited basis for discrimination. Other treaty bodies have
looked at the issue in a more comprehensive way than the CEDAW Committee and have given serious
consideration to sexual rights abuses in their reviews of States. They have recommended that States should
take action to address these rights violations. Unfortunately, Malaysia has not ratified any other treaty other
than the three stated.
5Between 1994 and 2001, CEDAW explicitly referenced sexual orientation in several concluding
observations relating to the criminalisation of consensual sexual relations among women, anti-discrimination
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activists. The International Gay and Lesbian Human Rights Commission (IGLHRC) compiled a
special report to facilitate the CEDAW Committee’s deliberations on sexual orientation and
gender identity under the CEDAW mandate (especially Article 2, which deals with equality and
legal and policy measures to fulfill women’s right to equality). As a result of the advocacy by the
various women’s rights groups and lesbian human rights activists, two General
Recommendations - one on older women and the protection of their human rights (General
Recommendation No. 27) and the other on the core obligations of States parties under Article 2
(on discrimination; General Recommendation No. 28) - were adopted by the CEDAW Committee.
Both of these recommendations affirmed that the discrimination of women based on gender and
sex is inextricably linked with other factors, including sexual orientation and gender identity (see
Annex 1).6 CEDAW can therefore play a pivotal and critical role to protect lesbians, bisexual
women and transgenders, who experience both state and non-state violence in Malaysia.
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For the purpose of this paper, the working definitions used by IGLHRC have been adopted:7
• Gender Identity refers to a person’s deeply felt sense of identification with a specific
gender, in relation to the social construction of masculinity and femininity. A person may
have a male or female gender identity, or something other than or in-between male and
female. A person’s gender identity may or may not correspond with the sex assigned at
birth. Since gender identity is internal, one’s gender is not necessarily visible to others.8
Gender identity is different from sexual orientation.
• Gender Expression refers to the external manifestation of one’s gender identity, usually
expressed through “masculine,” “feminine” or gender variant dress, appearance,
mannerisms, speech patterns and behaviour. Gender expression is not necessarily an
indication of sexual orientation.
• Sexual Orientation describes an individual’s physical, romantic, emotional and/or spiritual
attraction to another person, including lesbian, gay, bisexual and heterosexual
orientations.9
• Gay is a synonym for homosexual. It is sometimes used to describe only male whose
primary emotional and physical attraction is to other males.
• Lesbian refers to a female whose primary emotional and physical attraction is to other
females.
• Bisexual refers to a person who is attracted to both sexes.
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legislative protections, and asylum. It took another seven years before CEDAW would again officially
recognise the discrimination, violence and human rights abuses that took place against persons of non-
heteronormative sexual orientation and gender identity. At its 42nd session in October/November 2008, in
Concluding Observations on Ecuador, the Committee addressed discrimination against sexual minorities
and asked for an investigation by State authorities. In Concluding Observations on Kyrgyzstan, the
Committee expressed concerns about harassment and discrimination against women because of their
sexuality, and urged the State to take appropriate measures to ensure that the CEDAW Convention offer
protection from harassment and violence by public and private individuals to all women without
discrimination. In January 2009, in Concluding Observations on Guatemala, the Committee listed sexuality
as one of the reasons why women faced multiple forms of discrimination, and urged the State to take steps
to address this problem. IGLHRC’s Equal and Indivisible (2010: pp.37 & 38) presents a compilation of
sexual orientation and gender identity references from the CEDAW Committee in Concluding Observations
to States Parties.
6For more details, see Article on IGLHRC website, http://www.iglhrc.org/cgi-
bin/iowa/article/takeaction/resourcecenter/1235.html. Last accessed on 31 August 2011.
7See Grace Poore, (2000-2009) Human Rights Abuses in Asia On the Basis of Sexual Orientation, Gender
Identity and Gender Expression, International Gay and Lesbian Human Rights Commission (IGLHRC).
Paper presented at the Asia Pacific Forum from 5-7 May 2009 in Yogyakarta, Indonesia.
8One’s gender identity may be expressed through one’s gender expression (dressing, mannerisms,
appearance, speech patterns, etc.) but the gender identity of a person should not be assumed based solely
on this outward manifestation. A woman whose gender expression is masculine can still be identified as
female and be heterosexual. Likewise a man whose gender expression is feminine can still be identified as
male and be heterosexual.
9Sexual orientation also includes asexuality and pansexuality, but these will not be discussed in this paper.
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• Transgender is an umbrella term for people whose gender identity, expression or
behaviour is different from that typically associated with their assigned sex at birth,
including but not limited to transsexuals, transvestites, cross-dressers, and gender non-
conforming people. Transgender people may be heterosexual, lesbian, gay or bisexual.
The term transgender as it is used in the United States has limited resonance in many
other countries. It does not convey many diverse expressions of gender identity or
intersecting expressions of sexual desire, intimacy and gender nonconformity - for
example, Bisu and Waria in Indonesia, Hijra in India, Katoey in Thailand, Metis in Nepal,
Zenanas in Pakistan. In many cultures, the terms, “third gender” or “other gender” are
frequently preferred to “transgender”, and more recently, the term “trans people” has
been adopted.
Two other important working definitions include:
• Male-to-female transsexuals or Transwomen are males transitioning to females, though
they may choose to remain as transgenders or to identify themselves as women. There
are some who prefer to be known as the third sex.10
• Female-to-male transsexuals or Transmen are females transitioning to males, who may
choose to remain as transgenders or to identify themselves as men. There are also some
who still identify themselves as women.11
These definitions are important because they allow us to understand fluidity in a person’s identity.
Such definitions challenge the simplistic and discriminatory articulation, interpretation and
enforcement of Malaysia’s laws today, both civil and syariah (Islamic law). To properly reflect this
fluidity of gender and sex, the arguments for the respect, protection, promotion and fulfillment of
human rights related to gender identity, gender expression and sexual orientation address
women and girls engaged in same-sex relationships and the transgenders.
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Malaysia’s syariah laws do not recognise the rights of these groups of individuals and the
intersexed whom Islam refers to as khunsa (hermaphrodite), although there has been some
acceptance of the intersexed when there is clear biological evidence (khunsa nyata). Moral
policing targeted primarily at Muslim women and girls, including those engaged in same-sex
relationships (see Annex 2 for the laws that criminalise lesbianism under the Syariah Criminal
Offences Enactment), gays, and transgenders (see Annex 3 for the laws under the Syariah
Criminal Offences Enactment), are on the rise. There have been frequent raids by Islamic
religious affairs enforcement officers on couples who commit khalwat (close proximity) or zina
(extramarital or premarital sex). In a state of panic some of these couples have risked their lives
in trying to get away or have suffered accidental deaths. There was also the case of four women
dancers at Zouk Nightclub in 2004 sentenced to a 12-day jail term for behaving inappropriately in
public.
Extreme interpretations to arbitrate and regulate women’s bodies and women’s sexuality,12
including all who identify as women and all who embody the female body and feminine
mannerisms in one way or another are trying to win credence as well. The attempts to regulate
women’s bodies have resulted in an increase in the number of fatwas (edicts or rulings by the
National Fatwa Council, as part of the Department of Islamic Advancement of Malaysia or
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10In Malaysia, male-to-female transsexuals are known as Mak Nyahs.
11There is no local term for female-to-male transsexuals. English-educated female-to-male transsexuals may
prefer the term “transmen”.
12For example, Munirah Bahari of the National Islamic Students Association of Malaysia has stated that “The
white blouse [of the baju kurung (long blouse) used as the school uniform] is too transparent for girls and it
becomes a source of attraction to men, who are drawn to it, whether or not they like looking at it”. She also
made statements that the school uniform worn by girls at government schools “encouraged rape and
premarital sex”. This was reported in The Star on 23 May 2008.
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JAKIM)13 issued to regulate Muslim girls’ and women’s sexuality in recent years. Particularly
disturbing is the fatwa on female genital mutilation issued on April 2009, which makes female
circumcision or female genital mutilation compulsory or obligatory for Muslim girls. While the
fatwa tried to couch itself in conciliatory sounding language by appending that “if the practice
brings harm to the person”, “it should be avoided”, there is no way to ascertain whether harm has
been done or not14 unless the practice was carried out first. The increased intent to control
women’s bodies is also evident in the punishment meted out under the different syariah laws.
Between the syariah laws that criminalise the transgenders and the syariah laws that criminalise
women in same-sex relationships, the punishment meted out to women found guilty of
musahaqah (lesbianism) is more severe, including a maximum of six lashes in the Federal
Territory, Perlis, Johor, Terengganu and Sarawak.
Sexual rights violations can also occur when Section 377 on Unnatural Offences (specifically
Section 377A,15 377B, 377C,16 377D17) of the Penal Code or Section 21 of the Minor Offences
Act18 is used against a person (see Annex 4 for text to these sections). Acts under Section 377
(except for Section 377D) are punishable with imprisonment of up to 20 years, and those charged
can be subject to whipping and heavy fines. Muslims convicted under the syariah law can be
fined as much as MYR5000 (or the equivalent of USD1666.6719), three years imprisonment
and/or six lashes if charged for liwat (sodomy)20 or musahaqah. Liwat, under the syariah Law, is
used to criminalise the penile anal sex act but musahaqah can be used to criminalise lesbians for
their identity, and not just specific sexual acts between two women.21
It is not surprising that women and girls in such an environment, especially Muslims, suffer mostly
in silence. They have been indoctrinated by their culture and education system not to speak out
to avoid embarrassment and punishment, and to avoid bringing shame to their families. They are
not the only victims. Transwomen and transmen, as well as women and girls who engage in
same-sex relationships are also penalised. There are no avenues available for women who
engage in same-sex relationships and those who identify as transgenders to redress their human
rights violations under the local legal processes (both syariah and civil).
General Recommendation No. 28 of CEDAW, however, ensures their human rights, as it
encompasses both sex and gender, covering all women, including transgenders and those
engaged in same-sex relationships. It states: “Intersectionality is a basic concept for
understanding the scope of the general obligations of States parties contained in Article 2. The
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13A fatwa has legal ramifications for Malaysian Muslims living in the state which issued it.
14The fatwa can be found at: http://www.e-fatwa.gov.my/fatwa-kebangsaan/hukum-pemotongan-genitalia-
wanita-female-genital-mutilation. Last accessed on 31 August 2011.
15This section defines “carnal intercourse against the order of nature” as penetrative sexual connection
between two consenting adults, specifically, the introduction of the penis into the anus or the mouth of
another. Such acts are punishable with imprisonment of up to 20 years and shall be liable for whipping.
16Section 377C speaks of non-consensual sex (specifically, the introduction of the penis without consent or
against the will of the other) and should rightly be reviewed and placed under rape crimes (section 375).
This section, as it stands now, can be used if a man who initially consented to have sex with another man
becomes vengeful or if he so decides to blackmail the other.
17Allows for the persecution of consenting adults who commit “an act of gross indecency”, even in the
privacy of their homes. It is punishable with imprisonment of up to two years.
18Provides for the offence of indecent behaviour (subject to arbitrary and ambiguous interpretation of what
consists “indecent behaviour”), and has included cross-dressing in practice. Those found guilty can be fined
anywhere between MYR25 to MYR50.
19USD1 = MYR3.
20IGLHRC, Malaysia: In This Country, An Accusation of Sodomy Is Defamation of Character, IGLHRC,
http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/238.html. Last accessed on 31 August
2011.
21Images of lesbianism often include innocent images of two women just being together and fully clothed, a
simple kiss between two women, or women holding hands, with no hint of sexual connotations in them. The
use of such images to depict lesbianism is worrying as expressions of friendship can be deemed sufficient
justification to criminalise them.
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discrimination of women based on sex and gender is inextricably linked with other factors that
affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste, and
sexual orientation and gender identity. Discrimination on the basis of sex or gender may affect
women belonging to such groups to a different degree or in different ways than men. State parties
must legally recognise and prohibit such intersecting forms of discrimination and their
compounded negative impact on the women concerned. They also need to adopt and pursue
policies and programmes designed to eliminate such occurrences, including, where appropriate,
temporary special measures in accordance with Article 4, paragraph 1, of the Convention and
General Recommendation No. 25” [paragraph 18].
With General Recommendation No. 28, transwomen as well as transmen are equally entitled to
their human rights.22 Both transgenders embody the female body and feminine mannerisms in
one form or another, and as a result, are equally susceptible to the types of gender-based
discrimination, abuse and violence – physically, emotionally and mentally – suffered and
experienced by women and girls. Many have experienced violations of their human rights with no
legal recourse, whether under civil or syariah laws. They are deemed inferior to men in the same
way as women are deemed inferior to men. If they lodge police reports, they face further risk of
violations such as sexual molestation and other forms of sexual abuse, humiliation, family
rejection and/or community recrimination.
General Recommendation No. 28 can play a major role in guiding the CEDAW Committee
members and States parties in interpreting the Articles of CEDAW to respect, protect, promote
and fulfill human rights related to gender identity, gender expression and sexual orientation. The
strength of General Recommendation No. 28 lies in its emphasis of the following:
• The equal enjoyment of rights for all, without any discrimination and in totality;
• The inequality of women throughout the world is deeply embedded in tradition, history
and culture, including religious attitudes;
• The increased vulnerability of women when they are in certain situations;
• The vulnerability of women to gender-based violence;
• The recognition of women’s right to self-expression in dressing;
• The recognition of women’s right to privacy;
• The recognition of women’s sexual rights;
• That intersectionality is a basic concept for understanding the scope of the general
obligations of State parties contained in Article 2 of the Convention, and it includes issues
of sexual orientation and gender identity.
With General Recommendation No. 28, the interpretation of the Articles of the CEDAW
Convention must always be to uphold the human rights of all women against all forms of
discrimination, whether they be heterosexual, lesbian, bisexual or transgender. This is not new
ground for the CEDAW Committee because the Committee has, in the past, made Concluding
Observations to State parties in relation to discrimination based on sexual orientation and gender
identity (see Annex 5).
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22Some transgenders remain in transition and do not identify themselves as males or females.
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Status of Human Rights related to
Gender Identity, Gender Expression and Sexual Orientation in Malaysia
Sexuality is an important expression of self. It is a vital aspect of being human, but sexual rights
are not usually recognised in Malaysia. Many government policies have inadequate support for
sexual minorities, and do not deal with the complexity of sexual and gender identities. Instead,
they tend to favour simplistic solutions based on wrong assumptions or old theories that have
already been debunked. Such policies do not reflect the realities faced by the lesbian, gay,
bisexual and transgender (LGBT) community, nor do they try to address the stigma,
discrimination, abuse, violence and persecution faced by this group from religious extremists, as
well as from homophobes and transphobes.
Laws and policies in Malaysia are increasingly being influenced by narrow and politicised
interpretations of Islamic religious texts. Civil and syariah laws deem non-heteronormative, non-
procreative sexual practices between consenting adults as criminal acts.
LGBT individuals who appear most non-heteronormative bear the brunt of discrimination, abuse
and persecution. Discriminatory legislations and policies, either intentional or not, work against
their rights as citizens and contribute to an environment where they are denied full equality and
full enjoyment of their human rights.
Khartini Slamah, Founding Working Group member of the Asia Pacific Transgender Network and
Core-Group Chair of the Transgender Programme in PT Foundation, in a consultation with
Suruhanjaya Hak Asasi Manusia Malaysia (SUHAKAM) (Human Rights Commission of
Malaysia), on 22 November 2010 described her failed attempts to get the police in Malaysia to
seriously investigate the case of rape of another transwoman. The one who was raped had
undergone sex reassignment surgery and the police officer’s excuse for not accepting the report
was, “It is not a real vagina and therefore, she cannot be raped”.
Upholding the right to equality before the law and the right to equal protection before the law is
extremely complicated in Malaysia, because syariah laws come under individual state jurisdiction,
and each state may administer syariah laws and criminalise those who engage in same-sex
relationships and transgenders differently. It must be noted, however, that these groups are not
criminalised under federal law.
Over-zealous moral policing23 has sometimes resulted in deaths.24 These forms of aggressive
moral policing, endorsed by the State, are still on-going and constitute an invasion of privacy,
violating the basic constitutional rights of all. The State is also a perpetrator of stigmatisation,
discrimination and violence against the LGBT community.
At the height of the Anwar Ibrahim sodomy trial in 1998, the Government formed The People’s
Voluntary Anti-Homosexual Movement (PASRAH), to combat homosexualism. PASRAH’s
Chairman, Datuk Ibrahim Ali, was also a member of the United Malays National Organization
(UMNO) Supreme Council at that time, and the movement was heavily supported by the then
Prime Minister himself, Tun Dr Mahathir Mohamad.25 Actions by the State and State actors have
included the following:
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23See article by The Nut Graph, Married but busted for khalwat, http://www.thenutgraph.com/married-but-
busted-for-khalwat/. Last accessed on 31 August 2011.
24On 24 April 2010, a 21-year old student fell to his death trying to escape a khalwat raid by Islamic
Religious Affairs Department officers. See http://unmalaysia.wordpress.com/tag/khalwat/; also
http://www.wluml.org/node/6272). Last accessed on 3 August 2011 and 18 September 2011, respectively.
25World: Asia-Pacific PM's daughter slams Malaysian anti-gay group, BBC News.
http://news.bbc.co.uk/2/hi/asia-pacific/199468.stm. Last accessed on 31 August 2011.
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• In 1994, the government banned anyone who is gay, lesbian, bisexual or
transsexual from appearing on state controlled media.
• In 1995, the Selangor Religious Affairs Minister praised the Islamic Badar
vigilante groups who had, in 1994, assisted in the arrest of 7,000 people for
engaging in "unIslamic" activities such as homosexuality.
• In 2001, the then Prime Minister Tun Dr Mahathir Mohamad stated that the
country would deport any visiting foreign cabinet ministers or diplomat who is
overtly gay. Tun Dr Mahathir also warned gay ministers from foreign countries
not to bring along their partners while visiting the nation.26
• In 2005, the Royal Malaysian Navy chief, Tan Sri Dato Sri Mohd Anwar Mohd
Nor, stated that the Navy would never accept homosexuals into the service.
• In August 2007, the Secretary for the Ministry of Higher Education said that
“effeminate” men could not become teachers. He added that their applications for
graduate studies at local universities will most probably be rejected, even if they
demonstrate academic excellence. Furthermore, all candidates for teaching
positions will be made to sit through the Malaysian Educators Selection
Inventory, in addition to stringent interviews conducted by the Ministry of Higher
Education, to ensure that they are not people who are experiencing “gender
confusion”.27 As a result, a number of institutes of higher learning now implement
rehabilitation camps or training to make effeminate men more masculine28, and
encourage research to offer recommendations on how to rehabilitate effeminate
men by distinguishing between males who suffer from gender identity disorder
and males who “deliberately” become effeminate.29
• In 2009, the Malaysian National News Agency, Bernama, in its article entitled
Uncoventional Methods to Prevent Influenza quoted Dr V. M. Palaniappan, an
ecologist that used to teach at the University of Malaya, that homosexuality and
masturbation helped to spread the H1N1 infection.30
• In 2010, the Malaysian Film Censorship Board announced it would not allow the
depiction of homosexual characters, unless the characters repent or go straight
(become heterosexual) at the end of the show.
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Sad to say, efforts to protect rape victims and those who suffer from other forms of sexual abuse
are inadequate, with little being done to educate the public or bring the perpetrators, especially if
they are part of the victim’s family, to trial.
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26See Malaysian PM rebuked for threat to UK gay ministers,
http://www.globalgayz.com/country/Malaysia/view/MYS/gay-malaysia-news-and-reports--2#article4. Last
accessed on 31 August 2011.
27http://www.lgbt-education.info/en/news/local_news/news?id=29. Last accessed on 31 August 2011. Also
original source: Khairul Anuar Abd Samad dan Sazarina Shahrim, Unfair to forbid “effeminate” men from
becoming teachers, www.bharian.com. Last accessed on 4 January 2011.
28One of the more recent cases was the Kuala Terengganu State Education Department’s Besut camp for
66 boys with effeminate tendencies, which was highlighted in the news on 18 April 2011 and on other
spaces such as: Associated Press
http://news.yahoo.com/s/ap/20110419/ap_on_re_as/as_malaysia_anti_gay_camp_2, last accessed on 19
April 2011; Malaysian Insider http://www.themalaysianinsider.com/malaysia/article/sissy-boot-camps-
should-be-abolished-say-rights-group/, last accessed on 19 April 2011; JAG's letter on Malaysiakini
http://www.malaysiakini.com/letters/161896, last accesssed on 19 April 2011; blog post:
http://www.cedricang.com/rant/off-to-boot-camp-sissy-boys-20110419/. Last accessed on 19 April 2011.
29One such research was authored by Noraini Mohd Noor, Jamil Farooqui, Ahmad Abd Al-Rahim Nasr,
Hazizan bin Md Noon and Shukran Abdul Rahman and published under the International Islamic University
Malaysia in 2005 entitled Sexual Identity: Effeminacy Among University Students. In this research, only five
effeminate men (derogatorily referred to as “softies” by the research) were interviewed. Yet the published
research put forward recommendations to: (1) control softies’ activities on campus; (2) rehabilitate softies to
accept their [birth] sexuality; and (3) prevent the increase of the number of softies on campus.
30See http://news.change.org/stories/the-malaysian-government-thinks-that-homosexuality-causes-swine-flu.
Last accessed on 18 September 2011.
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The Malaysian media also stigmatises and discriminates against the LGBT community. In its bid
to sensationalise news, the media has often been callous in its treatment of the LGBT community.
In the first half of 2010 alone, there were many articles – almost two a month – that tried to smear
the LGBT community, turning public opinion against them. The table below shows news articles
that target lesbians, bisexuals and the transgenders. The number would rise if articles on gay
men were included as well.31
Title
Date
Newspaper
1. Pesta Khatan Berkepit Pondan
17 March 2010
Harian Metro (Malay daily)
2. Serbu Mak Nyah Mencari
Pelanggan
27 March 2010
Harian Metro (Malay daily)
3. Belaian Lelaki Jambu
11 April 2010
Harian Metro (Malay daily)
4. Pondan Kejam
14 April 2010
Harian Metro (Malay daily)
5. Hasutan Cinta Pengkid
21 April 2010
Kosmo! (Malay daily)
6. Parti lesbian berleluasa
2 May 2010
Kosmo! (Malay daily)
7. More than 100 go wild at lesbian
party
3 May 2010
The Star (English daily)
8. Iklan pasangan songsang
11 May 2010
Harian Metro (Malay daily)
9. Mak Nyah Tua Dicekup
28 May 2010
Harian Metro (Malay daily)
10. Tagih cinta gadis
9 June 2010
Harian Metro (Malay daily)
Overall Situation of LGBT in Malaysia
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There are no official statistics on the abuse and violence towards members of the LGBT
community in Malaysia. The only documentation is done by women’s rights activists and PT
Foundation (a non-governmental organisation that works with five marginalised communities32
most affected by HIV and AIDS). Their research shows that transgenders are often a target for
blackmail, harassment, extortion and sexual violence by the police and Islamic religious affairs
department officials.
Many LGBT encounter harassment even while they are still in school, from schoolmates, the
teaching staff and security guards. Held in contempt, many feel miserable and dejected. Some
stop attending classes and eventually drop out, even though they know that without a proper
education, they face a bleak future.
Harassment can be physical. It can even include sexual abuse and violence from family
members. Some are forced to undergo institutionalisation and psychiatric examination. Many are
kicked out of their homes (some at a very young age) and forced to drop out of school. When
they are older, some are victimised in their workplaces. Many face rejection of every kind, even
on loan applications, which are rejected without banks doing them the courtesy of explaining why.
Access to government low-cost housing schemes is also denied to LGBTs because these
schemes give priority to married couples with children.33
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31See Malaysian media slanders gays as police crackdown hampers AIDS/HIV education efforts,
http://www.globalgayz.com/country/Malaysia/view/MYS/gay-malaysia-news-and-reports--2#article16. Last
accessed on 31 August 2011.
32PT Foundation works with sex workers, men who have sex with men, people living with HIV and AIDS,
drug users and transgenders, specifically the transwomen who are called “Mak Nyah”.
33The author sees safe housing as an important issue for single poor women and transgenders. Many
cannot afford to rent apartments or houses and have to rent rooms. Sharing a house with others render
them that much more vulnerable to sexual molestation, abuse and violence.
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Human Rights Violations of Transgenders in Malaysia
Research on the lives of transgenders in Malaysia is scarce and whatever little there is, is
weighted towards the transwomen. The research is often linked to the issue of HIV and AIDS or
undertaken with the agenda of rehabilitating them as this segment of the LGBT community tends
to be the most visible, and is seen as being “deliberately” effeminate34 or “deliberately engaging in
sex work”.
The number of transwomen in the whole of Malaysia was estimated to be about 10 000 in 2002,
and approximately 100 00035 in December 2010. About 70% to 80% of them are Malay.
Interviews with transwomen show that many realise that they are not exactly male by the time
they are seven or eight years old, and some transition naturally at this early age. They realise that
though they are biologically male, they identify as women.
However, for many, this transitioning incurs the wrath of family members, who are unable to
accept them as transgender. Many families use force or humiliation to try and change them, but
to no avail. They remain as they are. Most grow up feeling rejected – both at home and in school,
where they face verbal and physical abuse – and either leave their homes, or are kicked out at an
early age, usually in their teens. The scars of abuse, both physical and verbal, and the rejection
from people close to them leave a mark. Many live in fear, knowing that they are targets of abuse,
and feel they cannot go out or trust anyone easily.
Owing to their visibility, there is heightened stigma, discrimination, abuse, violence and
persecution against this group, especially from those who are transphobic. Police and Islamic
religious affairs authorities also target this group, often extorting money and sexual favours.
According to the former Transgender Programme Manager at PT Foundation, Sulastri Ariffin,
there have been cases of plastic bags of faeces and urine being thrown at transwomen. They are
often beaten up, sometimes by complete strangers, just for being who they are.
Many transwomen do not complete their studies. Very few hold a diploma or a bachelor’s degree.
Without proper education, many find it difficult to get secure jobs that can pay reasonably.
According to Teh Yik Koon’s research, The Mak Nyahs: Malaysian Male to Female Transsexuals,
which was published in 2002,36 as many as 62% of the 507 Mak Nyahs who participated in the
research earned less than MYR500 (below the poverty line of MYR720) when they first started
working in factories and restaurants. Only 3.4% of the respondents were paid RM1500 and
above. Only 3% of the respondents turned to sex work when they first started out working. To
earn higher incomes, 54% of the 507 respondents turned to the sex industry. Under Section 372B
of the Penal Code, the transwomen are not pimped but criminalised for soliciting. (This goes
against the spirit of Section 372, which is about criminalising the exploitation of a person for the
purpose of prostitution, i.e. the person who exploits another.) Under Section 372B, their
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
34Noraini Mohd Noor, Jamil Farooqui, Ahmad Abd Al-Rahim Nasr, Hazizan bin Md Noon and Shukran Abdul
Rahman. 2005. Sexual Identity: Effeminacy Among University Students. Kuala Lumpur: International Islamic
University Malaysia. See also Sharifah Muzlia Syed Mustafa. 1997, A comparison of sexual identity and
emotional disturbance between feminine and masculine boys, Unpublished Master’s thesis, UPM.
http://psasir.upm.edu.my/8961/1/FPP_1997_11_A.pdf. Last accessed on 4 January 2011.
35 See article on PAS’ website, Bukit Bendera,
http://pasbukitbendera.com/index.php?option=com_content&task=view&id=572&Itemid=39 which
unfortunately questions the progress of PAS Islamic hadhari agenda to arrest the large number of Malays
who are Mak Nyahs.
36The research grant for Teh Yik Koon’s research was provided by the Ministry of Science, Technology and
Environment. Since then, the State has done nothing to respect, protect, promote and fulfil the rights of the
Mak Nyahs and to ensure their equality and non-discrimination, unless it is in relation to the prevention of
the spread of HIV and AIDS.
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circumstances – poor education and the denial of their right to earn a decent living – leading to
their sex work, are not considered when they are charged for soliciting. Yet sex work is often the
only work that provides them an income sufficient for meals, shelter, and, for those who want to
take hormones, their hormonal treatment.
The remaining 46% found jobs as cooks, cleaners, entertainers, waitresses and factory workers
in the cities, but they generally earned less than MYR1000 a month (USD333).37 After the usual
deductions for the employee provident fund (pension fund) and the Social Security Organisation
(SOCSO)38 as well as for income tax (if any), there is seldom enough money left for monthly
expenses.
It is not surprising, therefore, that over 90% of the research respondents engaged in sex work on
a part-time basis to supplement their meagre incomes. Being poor also exacerbated the
treatment and discrimination faced by the Mak Nyahs. The case studies presented later in this
chapter bear testimony to this reality.
But there is a hidden cost to working in the sex trade, in the form of extortion money. Based on
anecdotal information, bribes can range from a monthly MYR50 to the occasional MYR1000 to
MYR2000 to escape being charged, or, in the case of Muslims, being sent to the Islamic religious
affairs authorities. (By extrapolating, we can assume that the Mak Nyahs as a group have to fork
out MYR2.7 million in bribes each month. This is a conservative figure and assumes that only
those engaged full-time in the sex trade – 54% of the 100 000 transgenders – pay MYR50 each.)
Transmen!face similar forms of discrimination. However, their discrimination is often less visible
because this community tries as much as possible to blend into mainstream society to escape
harassment and to safeguard their livelihood and privacy. There is even less research and
documentation of the issues they face, compared to their transwomen counterparts.
Most transmen!work in low-paying jobs in the manufacturing sector, heavy industries or the
services and entertainment sector. PT Foundation knows of lesbians who engage in sex work
and who can sometimes be very masculine-looking. It is not known though, whether these identify
themselves as transmen, lesbians or pengkids (a reference to Malay Muslim women who look
masculine or who have masculine behaviours and mannerisms).
Their “safety in invisibility” is being threatened by a fatwa issued in October 2008, condemning
pengkids. This fatwa banning pengkids targets Muslim women and girls that may have a
masculine appearance or masculine mannerisms and are sexually attracted to women.39 Already,
pengkids and transmen are often targeted by potential employers and denied employment if they
do not “dress and behave like women”. This often forces them to take on only lowly-paid jobs,
even if they have a bachelor’s degree. Pengkids are also subject to verbal or even physical
abuse, with no avenue for redress. Pengkids and transmen also face discrimination when they
use public toilets. Like transwomen, they are often not allowed to enter women’s toilets because
they look like men. They face risk of abuse and violence if they use the men’s toilets and are
suspected of being biologically women. Men feel offended with women using their toilets and
intimidate and abuse these transgenders. As a result, transgenders try to avoid using public
toilets, at the risk of contracting urinary tract infections and experiencing other health problems.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
37Malaysia has not implemented a national minimum wage as employers in Malaysia have strongly rejected
such proposals. Current advocacy is for a livable wage. Plantation workers can earn a minimum of MYR350
a month and with incentives and bonuses, may get MYR700 a month. However, due to lack of enforcement,
the effective wage that workers receive could be lower.
38The Social Security Organisation (SOCSO) is a statutory organisation that helps provide social security
protection in case of injuries or death at the workplace.
39The New Sunday Times on 23 November 2008, published an interview with Datuk Wan Mohamad Sheikh
Abd Aziz, the then director-general of the Department of Islamic Development Malaysia (JAKIM).
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The State has inexplicably denied transgenders citizenship status and rights by failing to officially
recognise their existence. Since 1983, a fatwa has disallowed sex reassignment surgery for
Muslims. Applications to change their names on their identification cards and their biological sex
(especially those who have undergone sex reassignment surgery) are met with bureaucratic run-
arounds or an outright rejection, even though the purpose of an identification card is to make it
easy to identify a person as a valid registered national, and ensure accuracy of that identification.
There is no stated policy or law that can actually be used to deny the requested change in their
official identification documents, such as the Malaysian identification card, passport and driving
licence. Neither is there one that allows the individual to do so. However, in the National
Registration Act 1959 (Act 78) and Regulations, there is a process for name change (Article 14
under the National Registration Regulations 1990). Those who have enough money to bribe their
way through government officers in the registration department40 get the technical changes on
their identification cards. Some try to obtain an official letter from a psychiatrist assessing them as
suffering from “gender identity disorder”.41 These so-called “lucky” few can then escape some of
the stigma, discrimination, abuse, violence and persecution by both state and non-state actors.
Their freedom, however, falls far short of the freedoms enjoyed by heterosexuals and
heteronormative persons. It is not surprising then, that even the more affluent LGBT individuals,
like their poorer counterparts, try to avoid being too visible.
All of Teh Yik Koon’s transwomen research respondents confirmed being sexually abused. A high
91.3% suffered sexual abuse between the ages of six to 15.42 Her research also shows that
transwomen are usually caught for cross-dressing (33%), indecent dressing (18%), prostitution
(16%), drug use (13%), or during police raids or operations (10%) and for loitering late at night
(6%). In detention, the treatment accorded to the transwomen has been callous, aimed at
humiliating them. About 71% of the respondents said that they were stripped of their women’s
clothing in front of other people, 47% said that they were shamed in front of other people, 46%
said that they were jeered at, 10% said that they were forced to wear men’s clothes and 9% said
that they were beaten. Some had their hair cut short.43 They were also asked to change their
religion, invited to have sex, asked to show their breasts and private parts, condemned and
teased, and assumed to have loose moral values.
Transwomen are commonly stereotyped as sex workers. The police often assume that they are
drug users or allege drug abuse in order to extort money from them. They are regarded as
outcasts by society—religious authorities, police personnel, immigration officers, media, school
administrators and teachers, employers, medical personnel and health service providers as well
as by family members and the general public. This is because society’s belief systems, practices
and norms limit our understanding and appreciation of what a woman should be and do
(physically, emotionally, mentally as well as in relation to behaviour, mannerisms, dressing, voice,
speech, roles, responsibilities) vis-à-vis what a man should be and do.
Cast in such a negative light, it is not surprising that transgenders, live in an increasingly hostile
environment even in their daily lives. They have difficulty trying to access healthcare services (no
separate wards for them), toilets (no separate or unisex toilets for them although such a facility
can be easily accommodated, as State parties have done for people with disabilities), banking
and financial loan services, government services, and, if and when arrested, no separate lock-ups
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
40Anecdotal information. Transgenders do not make police reports on the bribes demanded, which could be
as high as MYR10 000 in some instances. They feel compelled to pay because they want to enjoy some of
their human rights. By reporting, they fear that they will be punished further.
41Transgenders, who can afford to pay, can also opt for a psychiatric examination, although this route is not
without risks. Extremists and conservative members of society may see them as “sick” and resort to other
means of abusing them under the guise of “control” and “corrective measures”.
42Perpetrators of sexual abuse include family members, with the highest reported incidence of abuse coming
from cousins, followed by uncles, mothers, fathers and aunts. For more details, see Teh Yik Koon (2002),
pp. 60–62. These statistics on sexual abuse should be of huge concern to the Malaysian government and
receive appropriate attention as it is a State party to the Convention on the Rights of the Child.
43Teh Yik Koon (2002), p. 92.
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and prisons.44 Given a choice, most transgenders would rather be placed with women rather than
with men in institutions as they generally feel safer with women, and more understood and
accepted by women.
Human Rights Violations of LGBT Community in Malaysia
A research report entitled Experiences of Non-Heterosexual Persons in Klang Valley, Malaysia:
An Exploratory Study” was completed for the Ministry of Women, Family and Community
Development by the University of Malaya Consultancy Unit45 in February 2006. The study was
called Projek Kasturi. This report presents responses from non-heterosexuals in the Klang Valley
on their life experiences and the stigma and discrimination they face. The report describes
personal accounts which are very much similar to other personal accounts of stigmatisation,
discrimination and persecution across Asia—social ostracism, family rejection, forced marriage,
attempted suicide, etc.
The research findings, which could help in raising awareness and creating better understanding
among Malaysians towards the lesbian and gay communities,46 have been withheld from
dissemination and further discussion because it is now classified under the Official Secrets Act,
1972. If this report were translated into the Malay language and disseminated to the public, it
could help reduce some of the unfounded fears, stigmatisation and discrimination towards the
lesbian and gay communities. While the State restricts and bans the dissemination of information
that could reduce the stigmatisation of the LGBT community, mainstream media has the leeway
to sensationalise news that cast this group in a negative light.
Given the prevalent climate of hostility and aggression towards these minorities, many may
attempt suicide since they are unable to seek help from the proper authorities without fear of
forced conversion.47 It is not known if the government has ever attempted to collate statistics on
suicides among the LGBT.
Young lesbians, transgenders and gays often do not report sexual abuse or sexual molestation
for fear of being mocked at, and seeing the actions of their perpetrators justified and excused.
Young lesbians, bisexuals and gays are vulnerable to moral policing raids conducted by the
Islamic religious authorities. They are also vulnerable to contracting sexually transmitted
infections as many will try to conform to heterosexuality, thinking that having sex with the
opposite sex will help them become heterosexual. Young women and girls who are struggling
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
44Transwomen usually suffer severe sexual abuse when they are locked up with male prisoners.
45The study, called Projek Kasturi, had four aims: (1) to examine the socio-cultural and political context in
which non-heterosexual citizens are situated (2) to identify the challenges faced by non-heterosexual
citizens in their local context (3) to document how non-heterosexual citizens respond to these challenges (4)
to recommend steps that can be taken to alleviate some of these challenges.
46There are, however, other studies done with limited dissemination. Ismail Baba has published a paper on
the lesbian and gay community in Malaysia. His work, entitled Gay and Lesbian Couples in Malaysia has
been published in Gay and Lesbian Asia: Culture, Identity, Community, edited by Gerard Sullivan and Peter
A. Jackson. 2001. New York: Harrington Park Press. pp.143–162. Sharon A. Bong has also published a
paper describing the way gays, lesbians, bisexuals, transgenders and queer negotiate the tension between
living out their sexuality and spirituality (beyond world religions) in same-sex partnerships. Entitled Not ‘For
the Sake of Peace: Towards an Epistemology of the Sacred Body, it was published in the Asian Christian
Review Vol.3 No.1, Spring 2009.
47Malaysian authorities became concerned about the country’s rising youth suicide rate in 2010. The highest
number of suicides occurred among those aged between 30 and 39 years (109 cases), followed by those in
the 20 to 29 age bracket (108 cases). Unfortunately, these statistics do not consider the sexual orientation or
gender identity of the youth concerned and the resulting implications for suicidal tendencies. See article
http://www.asiaone.com/Health/News/Story/A1Story20100829-234450.html. Last accessed on 3 August
2011.
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with the stigma and discrimination because of their sexual orientation and gender identity may
also risk unwanted pregnancies48 when they engage in sex in order to “become normal”.
The violation of freedom of expression through the regulation of sexuality is most often used
against Muslim women and transgenders. The fact that Islam in Malaysia is both increasingly
legislated and at the same time, forbids apostasy, runs ultra vires to Article 11 of the Malaysian
Federal Constitution, which guarantees freedom of thought, conscience and religion.49
Virtual spaces are morally policed as well, despite a 10-point Bill of Guarantees (the Bill) which
the Malaysian government gave in 1996 to attract investors into the multimedia industry. The Bill
states that the Malaysian government “[will] ensure no Internet censorship”. The Malaysian
government had also pledged “the promotion of a free media, including in cyberspace” in the
Aide-Memoire of its candidature to the UN Human Rights Council. However, the Malaysian
government chose to not only remain silent during the recent spate of verbal attacks and threats
of violence and murder against a Muslim gay man who produced a video under the “It Gets
Better” project, an initiative by Seksualiti Merdeka50 but is threatening to ban the website of
Seksualiti Merdeka (see Annex 6). Various authorities and leaders in government have urged
stricter monitoring of homosexual activities in the country. They have also urged the Jabatan
Kemajuan Islam Malaysia (JAKIM) (Department of Islamic Development Malaysia) to charge the
group and the Muslim gay man for “insulting” Islam.51 None of the Malaysian leaders or
authorities has acted against the people threatening the Muslim gay man with death. Nor have
the authorities charged them for criminal intimidation as described under Section 503, or for
criminal conspiracy as described under Section 120A of the Penal Code. Nor have any Malaysian
leaders come forward to say that these people who are making death threats or encouraging
others to kill the Muslim gay man can be charged under Section 505(c) on “Statements conducing
to public mischief”, Section 507 on “Criminal intimidation by an anonymous communication” and
Section 508 on “Act caused by inducing a person to believe that he will be rendered an object of
Divine displeasure” (see Annex 4 for texts to these sections of the Penal Code). Nor can these
actions be defended under Section 92 on “Act done in good faith for the benefit of a person
without consent” of the Penal Code.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
48Unwanted pregnancies and baby dumping are very visible social issues in Malaysia. The Star Teen
pregnancies on the rise with 111 reported this year, 26 June 2010. See article at
http://thestar.com.my/news/story.asp?file=/2010/6/26/nation/6549733&sec=nation. Last accessed on 4
January 2011.
49Anecdotal information shows that a number of Muslim-born transgenders, lesbians and gays have stopped
practising Islam. Some are also very disillusioned with the discriminatory way Islam is practised in Malaysia.
50Seksualiti Merdeka is an annual sexuality rights festival featuring talks, forums, workshops, theatre,
musical productions etc. It tries to create an enabling environment to discuss issues related to sexuality and
sexual rights for all, with special focus on creating an enabling, accepting and empowering environment for
LGBTs.
51Some of these individuals who have spoken against the gay man include Minister in Prime Minister's
Department Datuk Seri Jamil Khir Baharom in Berita Harian; Perak Mufti Datuk Sri Harussani Zakaria in The
Star; PAS Youth Chief Nasruddin Hassan Tantawi in Malaysiakini; Setiausaha Agung Persatuan Ulama
Malaysia Dr. Mohd. Roslan Mohd. Nor, Presiden Angkatan Belia Islam Malaysia (ABIM) Muhd. Razak Idris
and Nor Azman Amat, Ketua Pusat Kaunseling Majlis Agama Islam Negeri Sembilan in Utusan Malaysia;
Pengarah Pembangunan Keluarga, Sosial dan Komuniti, Jabatan Kemajuan Islam Malaysia (JAKIM),
Saimah Mukhtar in Harian Metro. See
http://www.bharian.com.my/bharian/articles/JAKIMpantausekssongsang/article/index_html, last accessed on
28 January 2011; Authorities unhappy with gay confession,
http://thestar.com.my/news/story.asp?file=/2010/12/20/nation/7653430&sec=nation, last accessed on 31
August 2011; Root out gay culture, says PAS youth, http://www.malaysiakini.com/news/151344, last
accessed on 31 August 2011; Sekat kumpulan seks songsang,
http://www.utusan.com.my/utusan/info.asp?y=2010&dt=1226&pub=Utusan_Malaysia&sec=Dalam_Negeri&p
g=dn_01.htm, last accessed on 31st August 2011; Kecaman moderator,
http://www.hmetro.com.my/articles/Kecamanmoderator/article/. Last accessed on 31 August 2011.
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Case Studies52 of Persecution by State Actors and Non-State Actors
The case studies presented in this section describe the complete disrespect of both State (case
studies one to six) and non-State actors (case studies seven to 11) for the right to equality and
non-discrimination of women engaged in same-sex relationships, and transgenders. The general
principles of equality and non-discrimination are fundamental elements of international human
rights law.53 It is only when equality and non-discrimination are guaranteed that the State is able
to effectively uphold human dignity.!!
The discrimination, abuse and violence targeted at women who engage in same-sex relationships
and transgenders is rooted in the violation of their right to determine their own identity (self-
determination).54 Women who engage in same-sex relationships and transgenders are not
deemed equal to men because they are different and are seen as non-conforming to the gender
status quo of a society. It is on this basis of difference that discrimination is wrongly justified and
bad laws formulated and enforced to discriminate against them. Equality here includes the equal
entitlement to enjoy a human right regardless of the circumstances, without the need for a
comparator and therefore, equality between women and men is not conditional.
Many of the case studies55 described and presented in this section speak of multi-faceted and
intersectional discrimination and persecution because they are perpetrated by a variety of actors
(both State and non-State) and based on multiple and overlapping factors. It is critical to read
these case studies as they are, to be able to appreciate the devastating combined effect on the
individuals concerned. They show that denying the human rights of the individual can result in
individuals experiencing a much higher vulnerability to discrimination, abuse and violence. It
denies them their opportunity to achieve their potential as human beings in terms of well-being,
personal development and productivity.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
52Data Source for case studies 1, 5, 7, 8, 9 and 10: Research interview data collected in 2010. Interviews
were conducted by KRYSS as part of research for IGLHRC. These interviews document violence against
lesbians, bisexual women and transgenders in Malaysia.!
53The right to equality and non-discrimination is recognised in Article 2 of the Universal Declaration of
Human Rights (1948) (UDHR) and is a cross-cutting issue of concern in different UN human rights
instruments, such as Articles 2 and 26 of the International Covenant on Civil and Political Rights (1966)
(ICCPR), Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (1966)
(ICESCR), Article 2 of the Convention on the Rights of the Child (1989) (CRC), Article 7 of the International
Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)
and Article 5 of the Convention on the Rights of Persons with Disabilities (2006). In addition, two of the
major UN human rights treaties were established explicitly to prohibit discrimination; the International
Convention on the Elimination of All Forms of Racial Discrimination (1965) on the grounds of race and the
Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW) on the
grounds of gender. Human rights instruments prohibit discrimination on several grounds. Article 2 of the
UDHR, for example, prohibits discrimination on the following 10 grounds: race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth and other status. The same
prohibited grounds are included in Article 2 of the ICESCR and Article 2 of the ICCPR. It is important to note
that the grounds enumerated in these provisions are merely illustrative and not exhaustive. The term “other
status” allows for the inclusion of grounds that are not explicitly mentioned, such as age, gender, disability,
nationality and sexual orientation”. It also allows for grounds to be identified when new issues arise for any
community, and hence, ensures the continued relevance of international human rights law to the lives of
people around the world. The principle of equality can in certain circumstances require a State to take
affirmative action to diminish or eliminate conditions that cause or help to perpetuate discrimination, and this
is certainly one of the strengths of CEDAW. As mentioned earlier, the Convention now has explicit
references to discrimination based on sexual orientation and gender identity. Principles 1 and 2 of the
Yogyakarta Principles also speak of the right to the universal enjoyment of human rights and the right to
equality and non-discrimination. See www.yogyakartaprinciples.org. Last accessed on 31 August 2011.
54See also Principle 3 of the Yogyakarta Principles.
55The author could not identify a suitable case study on the right to political representation and/or
participation in governance for the LGBT community. Malaysia’s political system does not allocate
representation for marginalised communities, LGBT community, people with disabilities and indigenous
peoples. It has even failed to achieve a minimum 30% for women’s political participation and representation.
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Each case study describes the effect of the violation of specific human rights and how Malaysia
has failed to fulfill its obligations under the various Articles of CEDAW. Taken together, the case
studies speak of violations of fundamental human rights, but the case studies alone should not be
taken as an exhaustive list of the violations that do occur.56
The case studies describe the failure of the Malaysian government to fulfill its obligations under
Articles 1, 2, 3, 4, 5(a), 7(b), 10 (education), 11 (employment), 12 (health), 13 (economic and
social benefits), 14 (rural women and CEDAW’s intersectional approach to discrimination), 15
(equality before the law, freedom of movement and the right to choice of domicile), 16 (marriage
and family life), 18 (legislative, judicial, administrative or other measures) and 24 (full realisation
of rights). Most of the case studies are testament to the State’s failure to fulfill its obligations as
outlined by CEDAW’s General Recommendation No.19 on Violence Against Women as well as
General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of
CEDAW.
The case studies show that the Malaysian government has also failed to guarantee the principle
and realisation of equality as protected by Article 8 of the Federal Constitution. Article 8(1)
provides that all persons are equal before the law and entitled to its equal protection. Clause 2 of
the same Article states: “Except as expressly authorised by this Constitution, there shall be no
discrimination against citizens on the ground only of religion, race, descent, gender or place of
birth in any law or in the appointment to any office or employment under a public authority or in
the administration of any law relating to the acquisition, holding or disposition of property or the
establishing or carrying on of any trade, business, profession, vocation or employment.” The
exceptions expressly allowed under the Constitution include the affirmative actions taken to
protect the special position for the Malays of Peninsular Malaysia and the indigenous people of
Sabah and Sarawak (collectively known as “bumiputras” (sons of the soil)) under Article 153 of
the Federal Constitution of Malaysia.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
56See also the 29 principles of the Yogyakarta Principles in the Application of International Human Rights
Law in relation to Sexual Orientation and Gender Identity www.yogyakartaprinciples.org.
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Case Studies of Discrimination and Persecution by State Actors
Case Study 1: Orphaned, abused and rejected as a transgender
Rini (not her real name), a Malay Muslim, is a transwoman, who, from a young age, has always
felt that she was a girl. Orphaned at the age of 9, she stayed with a friend’s family. But she was
ill-treated by the friend’s mother, who did not accept her, and would use a hot iron to burn her or
cut her with a knife. School was no better. The teachers and students taunted and abused her
verbally. Depressed, she often wanted to commit suicide. She left her friend’s house at 15, before
sitting for her school examinations that year. With little formal education and no qualifications, she
found it hard to find work and resorted to sex work at the age of 16. She got to know other
transwomen and they became her source of social support.
Rini dresses as a woman in her everyday life. She feels that sex work is the only occupation that
can pull her out of poverty. Recalling the past, she remembers a time when she could not even
afford to buy a pen for her examinations. Rini has since learnt bridal make-up skills, and she
works part-time for a friend, who owns a bridal boutique. At the time of the interview in November
2010, Rini was 23 years old. By then, she had been arrested four times – between March to
November 2010 – by the Islamic religious enforcement officers in the state where she lives.
She recounts that religious enforcement officers would come in plainclothes, without identifying
themselves, when conducting a raid. Often, they would come on motorcycles, behaving no
differently from gangs, thugs and bag-snatchers. This, says Rini, causes the transwomen to panic
and run, as they do not want to be robbed or arrested.
Upon arrest, the transwomen are humiliated and treated badly. Recounting her second arrest,
Rini said she was trying to return a powder compact she had borrowed when she saw her friends
shouting and running. She started running as well and tried to hide in the storeroom of a hotel but
the Islamic religious officers threatened to break down the door. She unlocked the door and one
Islamic religious affairs enforcement officer dragged her out and hit her several times in the face
and once in the nose. She became weak and fell, and the officer almost stamped on her chest if
not for his colleague who pulled her out in time from under his foot.
When she approached the government-funded legal aid bureau for help the following day, she
was denied legal aid. Instead she was told that she had committed a crime for being a Mak Nyah.
Discouraged, she decided not to make a police report. She felt alone and helpless and decided to
remain in-doors for about three to four days until all the marks from the physical beatings had
faded. She dared not seek medical aid from the public hospital, as she did not want to be rejected
again or made to feel guilty for who she is. She was instructed to plead guilty by the Islamic
religious affairs department officials and because she was not provided with any legal aid, she did
so for her first two arrests.
Rini was also molested sexually as the Islamic religious affairs enforcement officers would grope
her breasts under the pretext of checking if she was wearing a woman’s brassiere.
When arrested the fourth time, Rini was not in women’s clothes and even the driver of the official
vehicle of the Islamic religious affairs department wondered why she was arrested. The officer
who made the arrest smugly smiled and said it was because of her physical appearance, which
resembles a woman. Rini also described how she was forced to strip and change her clothes
while detained by the Islamic religious affairs department, with officers looking at her doing so.
Her clothes were then confiscated to be used against her as evidence. As a result, Rini is forced
to walk around without her brassiere even in the daytime. Like other transwomen in her area, the
brassiere is used as evidence against them in court.
Rini refused to plead guilty to the charges against her for her third and fourth arrests, but by doing
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so, Rini was threatened with a prison term by the syariah prosecutor as he felt that she was
making things difficult for him and giving him extra work. Rini says, “I am traumatised and very
afraid. I am arrested even when dressed as a man [wear men’s clothes]. I no longer use a
scrunchie, but a rubber band to tie up my hair. I am afraid that the scrunchie will be seized as
evidence and used against me. I am extra careful when I go out of the house, more so if I have to
go out to my friend’s boutique at night and get the items for bridal make-up services. This is
because they can arrest me under Section 66, and say that I am a pondan (a local derogatory
term for transwomen) because I look like a woman. I do not feel safe at home either.” Rini lives
alone in a rented house.
Rini says that Islamic religious affairs enforcement officers have stepped up raids to arrest
transwomen since she hired a syariah lawyer to challenge the charge against her. They have also
tried to demonise her by telling other transwomen that she is to be blamed for the increased
frequency of these raids. They hope that by doing so, Rini will be pressured by her community to
give up challenging her arrests. This tactic has caused some in her community to attack her,
verbally and physically.
Rini was arrested four times within a span of nine months, and denied her right to a livelihood,
due to persistent harassment by Islamic religious affairs enforcement officers and the constant
threat of sexual abuse and physical violence if she is arrested again. To secure a livelihood, Rini
had no choice but to move to another state. However she found that she had to incur more
expenses on rent and travel each month. She has since returned to her home state because it
had become too difficult for her to sustain these costs. She finds it more and more difficult to earn
an income, and she is unable to secure a decent-paying job as she does not even have the
minimum school qualifications.
Effects of Rights not Enjoyed: The mere existence of a bad law that persecutes transwomen on
their dressing and mannerisms is a denial of the right to equality and non-discrimination (CEDAW
Articles 1 and 2). The stigma and discrimination Rini suffered within society forced her to leave
school and home at an early age (CEDAW Articles 3, 5(a) and 10). Rini was arrested just for
wearing women’s clothes and subsequently, for looking like a woman. She is denied her right to
self-determination and the right to freedom of opinion and expression. The national identification
card system does not allow her a separate identification category, other than female or male.
Without an official identification category that recognises her as who she is, a transgender or
male-to-female transsexual, she is denied access to other services and facilities (CEDAW Article
13). She is unable to gain reasonably waged employment (CEDAW Article 11) and so resorts to
sex work.
Rini does not have freedom of movement (CEDAW Article 15). She can only go out in the
daytime and even then, she may still be victimised, arrested and charged for being who she is.
She suffered human rights violations while detained by the Islamic religious affairs enforcement
officers.
Rini was arrested four times within a span of nine months. Due to persistent harassment by the
Islamic religious affairs enforcement officers and the constant threat and risk of sexual abuse and
physical violence if rearrested, she is being denied access to a livelihood which is a violation of
Cedaw Article 11.
The syariah law discriminates against her gender identity and gender expression. She is
therefore not an equal person before the law, nor does she enjoy the right to be who she is
(CEDAW Articles 3 and 15). The principle of equality before the law is especially important for
minority groups, such as indigenous people, people with disabilities, gender and sexual
minorities, or groups that have less political, economic and social power, such as the poor. This
right means that judges, government officials, government elected representatives, religious
affairs enforcement officers (when a religion is legislated in a State) and the police, as well as all
others who abuse their power and position, are legally answerable for their actions.
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Discriminatory laws should be reviewed as they render the State ineffective in guaranteeing equal
protection, which in turn translates to the inability of some individuals and minority groups to
achieve the full realisation of their rights (CEDAW Article 24).
In this case, the State failed to fulfill its obligations as outlined under General Recommendation
No.19 on Violence Against Women, as well as General Recommendation No. 28 on the Core
Obligations of States Parties under Article 2 of CEDAW.
Case Study 2: Right of choice to life partner and the right to civil union not recognised
Women engaged in same-sex relationships as well as transgenders do fall in love. They seek
long-term partnerships the way heterosexuals do. However, societal norms – culture and
religion– are unable to accept this fact, denying them the right to civil unions/partnerships. Even
unions for transgenders who have undergone sex reassignment surgery are questioned. Such
denial is inhumane as it tears relationships apart. The feelings of the individuals are ignored and
they are unable to minister to their partners. The following two case studies highlight the pain
transgenders go through in their daily lives.
Case Study 2.1: Choice of life partner denied!
In September 2007, Malaysians witnessed the enduring trial of Mohd Sofian Mohamad and
Zaiton Aziz to save their love and marriage. Mohd Sofian and Zaiton Aziz were married in 2002
and their marriage was solemnised by Imam57 Ishak Juki from the Bukit Cina mosque in Melaka.
However, the Melaka Islamic Religious Affairs Department refused to register their marriage as
there were suspicions about the groom’s gender. The name on the identity card was indeed
Mohd Sofian Mohamad. After five years into the marriage, it was discovered that Mohd Sofian’s
birth certificate states his name as Mazinah Mohamed, a female name. Both Sofian and Zaiton
were prosecuted under Section 11 of the Melaka Islamic Family Enactment 2002.
Mohd Sofian, who identifies himself as a man, had to go through a number of medical check-ups
during the trial. Dr Nor Hasinah Mohd Said, a gynecologist at the Melaka Hospital ran a physical
test, blood test, and a chromosome test to prove that he was indeed a woman. However, no
physiological or psychiatric tests were conducted.
In this case, Sofian’s lawyer tried to argue that Sofian was born a khunsa but failed to provide the
necessary biological evidence. As a result, the syariah court annulled their marriage and issued a
permanent divorce to the couple. The court proceeded with this judgement despite the fact that
Zaiton, his wife, stated that she was happy with the marriage; both physically and emotionally.
The bride's family soon filed a lawsuit against the couple on the basis that the groom was actually
a woman.
Effects of Rights not Enjoyed:
The State, in this case, completely disregarded the emotional connection Sofian and Zaiton had
with each other and the happy union they had for five years, from 2002 to 2007 (CEDAW Article
16). Both suffered emotional and mental stress and were denied their right to an adequate
standard of living when parted. They suffered injustices as a result of the State’s contradictory
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57An Imam is often the leader of a mosque and hence the local community. As a spiritual leader, the imam is
the one who leads the prayer during Islamic gatherings. He is also given the authority to solemnise
marriages.
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actions—first allowing Mohd Sofian to change his name from a female name to a male name,
although it claimed that it was due to an administrative oversight, then solemnising the marriage
and then having the marriage annulled. The State’s actions gave a strong signal that it was
permissible to persecute Mohd Sofian and Zaiton Aziz for “bringing dishonour” to the bride’s
family. The State is also guilty of deeming and treating the union of Mohd Sofian and Zaiton Aziz
as unequal to a heterosexual couple before the law (CEDAW Articles 1, 2, 5(a) and 15). As a
couple, they do not enjoy equality before the law nor do they enjoy equal protection of the law.
Their rights to equality and non-discrimination were violated. They were also unable to achieve
the full realisation of their rights (CEDAW Article 24).
Case Study 2.2: Marriage not recognised despite acceptance of families, relatives and
friends
Jessie Chung’s marriage to Joshua Beh was reported in the media in November 2005. Jessie
Chung met Joshua Beh when she was still biologically male. She underwent sex reassignment
surgery and had rejected Joshua Beh’s marriage proposal six times because she knew that they
could not get married legally and that their union would never be recognised in a Malaysian court
of law. She also knew that she could never bear Joshua a child. However, Joshua persisted, and
he wrote his seventh marriage proposal with his own blood in front of 100 mutual friends. Their
wedding reception was held in Kuching, Sarawak, with 800 friends and relatives in attendance.
Yet, the State continued to reject the validity of the marriage, on the basis that Malaysian laws do
not allow citizens to change their gender on their identity cards despite having undergone sex
reassignment surgery. Since there was no change in the gender on the identity card, the
marriage would be deemed illegal (statement by the then Home Affairs Minister Datuk Seri Azmi
Khalid).
The marriage was sensationalised by the press and given much negative publicity, causing the
couple to be stigmatised. Views were also sought from the National Evangelical Christian
Fellowship secretary-general Reverend Dr. Wong Kim Kong, who said that he does not approve
of same-sex marriages, even after one partner has changed his or her sex. However, the
secretary-general of the Council of Churches of Malaysia, Dr. Herman Shastri, said the church
should not discriminate against a person if it can be proven that he or she was born with
imbalanced hormones, was undergoing counseling, or that his or her parents do not object to the
sex change, and if the operation was carried out in a proper medical institution. Jessie Chung and
Joshua Beh hope to migrate to another country if Malaysia prevents them from living as a couple
and in remaining married.
Effect of Rights not Enjoyed:
The union of Jessie Chung and Joshua Beh is not only accepted, but embraced, by both their
families, relatives and friends. However, they face discrimination from certain religious segments
as well as the State (CEDAW Articles 1, 2, 3 and 5(a)). The State also allowed the media to
publicise the case negatively, causing public opinion to turn against the couple so much so that
the couple had stated that they were considering migrating to another country to save their
marriage. This, in turn, is a denial of their right to choice of domicile (CEDAW Article 15). Their
marriage was considered illegal, hence, as a couple, they were denied their right to equality
before the law (CEDAW Articles 15 and 16). It is clear that Jessie Chung and Joshua Beh were
not allowed to enjoy the full realisation of their rights (CEDAW Article 24).
Case Study 3: Brutality from Islamic religious enforcement officers
Ayu, a transwomen, was detained by enforcement officers of the Jabatan Agama Islam Melaka
(JAIM) (Melaka Islamic Religious Affairs Department) in July 2007, while she was talking to her
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friends at the Old Melaka bus station in Kota Melaka. The officers, dressed in civilian clothes, only
identified themselves as JAIM officials when bystanders tried to intervene and prevent the
assault. She was so seriously beaten up by the enforcement officers that she had to undergo an
emergency abdominal operation. She was later charged with having violated Section 72 of the
Melaka Syariah Offences Enactment (see Annex 1 for text in Malay) and fined MYR1000.
Although, Ayu had help to seek legal redress58, she backed out of the process, fearful that such
an act would cause JAIM officers to retaliate further. She believed that neither the police nor the
Malaysian government59 would step in and protect her from further abuse.
Effects of Rights not Enjoyed:
Ayu’s rights to life, liberty and security were directly threatened (CEDAW Articles 1, 2, 3 and 5
(a)). The syariah law discriminates against her because of her gender identity and gender
expression (CEDAW Article 15). Ayu is not deemed an equal person before the law, nor does the
law offer her equal protection. She is therefore denied the right to determine her own identity
(self-determination). She is also denied the right to freedom of opinion and expression. Ayu could
not enjoy a full realisation of her rights (CEDAW Article 24). The State also failed to fulfill its
obligations under General Recommendation No.19 on Violence Against Women as well as
General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of
CEDAW.
Case Study 4: Forced to seek asylum in another country
The Australian News on 3 March 2010,60 reported that “ Malaysian transsexual, who feared
imprisonment, whipping and life as a prostitute if she were to return to Malaysia, has qualified for
refugee status as a member of a persecuted social group” in Australia. The Refugee Review
Tribunal emphasised her poverty, powerlessness and her inability to get an identity card as a
female. The 38-year-old Malaysian Hindu was born male, had a sex-change operation in
Thailand, returned to Malaysia with a female name, and was arrested during a beauty pageant.
She went to Australia in 2009 on a tourist visa and found work as a fruit-picker. Lawyers said it
was very rare for transsexuals to gain protection under the 1951 Refugee Convention as
members of a persecuted social group (see Annex 7 for full statement by the applicant). In its
decision last month, the tribunal cited a paper by a Malaysian academic saying a 1983 fatwa, or
Islamic legal ruling, had made life harder for transwomen. During the colonial times, they were
tolerated and worked as brides' attendants, dancers, cooks or artistes. Now, almost all of the
estimated 100,000 transwomen work as prostitutes. Following the fatwa, only hermaphrodites
were allowed to have a sex change. Seen as “males”, they are forbidden "to behave like females
in terms of cross-dressing, wearing makeup, injecting hormones to enlarge their breasts and
undergoing sex-change operations", the academic said. Non-Muslim transsexuals were also
subjected to whipping and prison for "unnatural" sex.
Effects of Rights not Enjoyed:
The transgender felt unequal to others and was forced to migrate and seek refugee status in
another country as a result of the ongoing stigmatisation, discrimination and persecution in
Malaysia (CEDAW Articles 1, 2, 3, 5(a), 10, 11, 12 and 13). The absence of proper and effective
legal redress made it impossible for her to continue to stay in Malaysia. The unedited statement
by this transgender (see Annex 7) reflects her low education (CEDAW Article 10). It describes
ongoing stigmatisation, discrimination and persecution since birth (CEDAW Articles 1, 2, 3, 5(a),
10, 11, 12 and 13). She is not recognised as a regular person and so is treated unequally and
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58Support was provided by PT Foundation and the late Toni Kasim of Sisters in Islam.
59http://www.amnestyinternational.be/doc/actions-en-cours/Les-actions-urgentes/Les-actions-urgentes-en-
anglais/Article/malaysia-ayu-f-aged-44-and-other. Last accessed on 31 August 2011..
60http://www.theaustralian.com.au/news/nation/transsexual-who-feared-prison-at-home-qualifies-for-refugee-
status/story-e6frg6nf-1225836280527. Last accessed 31 August 2011.
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discriminated against constantly in Malaysia (CEDAW Article 15). In comparison, her right to
recognition as a person before the law was better respected and recognised by Australia, and her
right to recognition everywhere as a person before the law was better upheld and protected in
Australia. She was unable to enjoy the full realisation of her rights in Malaysia (CEDAW Article
24), where the State had also failed to fulfill its obligations as outlined under General
Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of CEDAW.
Case Study 5: Discriminated against and abused for feminine mannerisms
Leila61 (not her real name) had only one year of formal education. She was constantly beaten by
her father from a young age for looking feminine and behaving like a girl. She was kicked out of
her home at the age of 7 and was forced to live with her uncle. When he tried to abuse her
sexually at 14, she returned home. She finally left home at the age of 15. She was 20 years old at
the time of the interview. Leila is not a Muslim. Neither is she a sex worker. She is from a
northern state and brings tourists around on her rented trishaw. She does not wear make-up nor
cross dress. She ties her long hair and usually wears a t-shirt with a pair of bermuda jeans (up to
her knees). She has no shelter as no one will rent out a room to her. When she can afford it, she
may spend the night in a hotel, but mostly, she sleeps in the trishaw. She is constantly harassed
by the police under all kinds of pretexts. At the time of the interview, she had been arrested 36
times, from suspicion of being a sex worker, even though she was alone at the time of the
arrests, to using drugs. Usually the charge is prostitution. If she tries to challenge the arrest, the
police threaten to charge her with possession of drugs or drug abuse. Often, the police ask her
for bribes, and if she is unable to pay, or if the amount offered is deemed insufficient, they hold
her for 14 days under remand until the results of her drug tests are out. The results have always
been negative.
Each time she is arrested, she ends up paying a fine of MYR90 or risks being imprisoned for 25
days. She earns up to MYR30 to MYR40 a day if customers ride in her trishaw. Once she
suffered from an abdominal problem and went to the government hospital, but she was not
checked or given any medication. She was discharged after four days and slapped with a bill of
MYR85. She managed to pay MYR10 and still owes the hospital MYR75. The hospital staff
claims that the fees were for an x-ray as well as other checks. Since then, she has refused to go
to any government hospital. If she is unwell, she endures the pain or tries to buy over-the-counter
medicine to alleviate the symptoms.
Effects of Rights not Enjoyed:
The State has failed to protect Leila’s rights from childhood. She was stigmatised and
discriminated against for being different from all other children (CEDAW Articles 1, 2, 3 and 5(a)).
Abused from childhood, she could not get a proper education (CEDAW Article 10) and has had to
fend for herself since she was 15 (CEDAW Articles 11 and 13). There is also a gross lack of
sensitisation of State actors (police, healthcare professionals) (CEDAW Articles 12 and 15) and
public education on the human rights of transwomen. State and non-state actors subject them to
abuses, both physical and sexual, as well as other forms of discrimination, extortion and violence.
Without any form of official recognition and protection by the State, Leila is an easy target for
sexual abuse, extortion, discrimination and violence. Leila has been denied her right to life, liberty
and security; her right to determine her own identity; her right to equality before the law; her right
to equal protection; her right to freedom from arbitrary arrest and detention; her right to fair trial;
her right to freedom of opinion and expression; her right to effective remedies and redress; her
right to education; her right to an adequate standard of living; her right to safe shelter; her right to
earn an income and her right to healthcare services. In all areas, the State has failed to ensure
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61Leila participated in an organised press conference by an NGO on 24 June 2010 and was interviewed on
the same day to document her story and the discrimination and violence she has endured.
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Leila a full realisation of her rights (CEDAW Article 24). In Leila’s case, the State had failed to
fulfil its obligations as outlined under General Recommendation No.19 on Violence Against
Women, as well as General Recommendation No. 28 on the Core Obligations of States Parties
under Article 2 of CEDAW.
The State had also failed to realise Leila’s rights under the Convention on the Rights of the Child.
General Experiences of Discrimination by State Actors
Case Study 6.1: Discrimination of Transgenders at Hospitals
Transgenders feel out of place in Malaysian hospitals, partly because they feel stigmatised and
partly because the Malaysian hospital system ignores their existence, subjecting them to
discrimination, says PT Foundation’s Sulastri Ariffin. In Kuala Lumpur’s General Hospital, for
example, the seats and beds are segregated according to sex. The male patients sit on one side
of the room while female patients sit on the other side.
If a transgender is admitted to a government hospital, he/she will usually be placed in wards
according to the sex stated on the identification card. This creates a lot of uneasiness amongst
transgenders, as they may share the ward with male patients.
Going to a Government outpatient clinic can be equally embarrassing for transgenders because
the current system calls everyone by their identity card names when it is their turn to see the
doctor. This means that the transgenders will have to respond to their male names even though
they no longer look like a male, or by their female names although they look manly.
To avoid unnecessary embarrassment and discrimination, the transgender would rather go to the
pharmacy to get medication, instead of being treated professionally. Many transgenders cannot
afford the more expensive fees of private hospitals, although these tend to be more sensitive to
their needs. As a result, they are unable to attain the highest possible standard of health and
well-being for themselves.
Effects of Rights not Enjoyed:
Due to stigmatisation and discrimination, which render them unequal to others, the transgenders
are unable to access proper healthcare services and an adequate standard of living (CEDAW
Articles 1, 2, 3, 5(a) and 12). The State is obliged to ensure that its public servants are educated
on the health needs and rights of transgenders, both female-to-male and male-to-female
transsexuals. Public healthcare services must be equally accessible to all. In failing to do so, the
State has failed to ensure transgenders the full realisation of their rights (CEDAW Article 24) and
failed to fulfil its obligations as outlined under General Recommendation No. 28 on the Core
Obligations of States Parties under Article 2 of CEDAW.
Case Study 6.2: Denial of a social life with the transgender community and Malaysian
society
The recurrent raids on functions and gatherings (e.g. beauty pageants, social gatherings)
organised by transgender communities constitute yet another form of harassment towards this
community.
On 26 July 2008, religious authorities raided a transsexual [male-to-female] beauty pageant in
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Bachok, Kelantan. Sixteen individuals were arrested and the authorities claimed that three people
got away by diving into a river.62
Effects of Rights not Enjoyed:
These raids make it impossible for transwomen to have a social life. They cannot enjoy an
adequate standard of living as socialising with one another or participating in social events that
display their interests, abilities and talents is disallowed (CEDAW Article 13). These raids also
deny them their right to freedom of opinion and expression as well as their right to freedom of
movement (CEDAW Article 15). The State has failed to fulfill its obligations under CEDAW
Articles 1, 2, 3, 5(a) and 24. Without addressing this form of intimidation, the State has failed to
fulfill its obligations as outlined under General Recommendation No. 28 on the Core Obligations
of States Parties under Article 2 of CEDAW.
Case Studies of Discrimination and Persecution by Non-State Actors!
Case Study 7: Invisible and denied human rights
Sasha is a middle-class Malay Muslim transwoman who works for a non-profit organisation. She
suffered violence and verbal abuse during her time in an all-boys boarding school. She was once
beaten up for saying that she liked a boy in that school.
Currently, she tries to merge with the crowd, hoping to enjoy the freedom of movement that is
denied most transwomen. She dresses well, reflecting her middle-class status, and makes sure
that the photo in her identification documents (identification card and passport) bears a close
resemblance to herself. So far, she has not been subject to abuse at police road blocks, although
her identification card still has her male name and the last digit of the identification card is odd. [In
Malaysia, the identification card system assigns odd numbers to males and even numbers to
females.] She has no problems taking public transport. She feels she passes off as a woman in
public places. However, she still encounters her fair share of abuse and harassment just for being
who she is. Some people suspect she is a transgender because of her voice. Recounting a
recent incident, she said she was going home in a taxi and was seated at the front passenger’s
seat. The driver insisted she perform fellato on him. Horrified, she pretended to cry and begged
him not to force her to do the act. She was finally dropped off at her residence. Although the taxi
driver harassed her, Sasha felt that she could not file a police report against him. To escape
potential discrimination from relatives, Sasha and her mother now live in a different state.
Effects of Rights not Enjoyed:
While abuse, discrimination and violence against Sasha may not be evident, this does not mean
that she is free, or that she is able to enjoy and fully realise all her human rights (CEDAW Articles
1, 2, 3, 5(a) and 24). She has to practice avoidance and blend into mainstream society. Once
identified as a transwoman, she is subject to the same harassment as the rest. In order to be free
from harassment, she has curbed her own rights to life, liberty and security. In Sasha’s case, the
State has failed to fulfill its obligations as outlined under General Recommendation No. 28 on the
Core Obligations of States Parties under Article 2 of CEDAW.
Case Study 8: Disowned and kicked out of home
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62See article on The Nut Graph, http://www.thenutgraph.com/beauties-and-the-beasts/. Last accessed on 31
August 2011.
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Perumal is a transman. He is neither a Malay nor a Muslim. From young, he has always seen
himself as a boy. While he was growing up, he felt very confused and tried his best to conform to
societal expectations of his biological self, to be accepted socially. He grew his hair long at 13,
and pretended to have boyfriends. He did everything he knew to fit into society. Deep down,
however, he was depressed and started harming himself. He attempted suicide and would cut
himself. When he was 17, he told his younger sister his struggles. When his father, who still saw
him as his daughter, came to know of his attraction to women, his father could not accept the fact
and disowned him when he turned 18.
Perumal had been sexually molested by his father when he was in primary school and sexually
abused by a neighbour, a boy who was a year younger than him. The boy had threatened
Perumal that he would sexually abuse his younger sister if he did not meet him on a daily basis.
Perumal was forced to say that he was the initiator when his younger sister came upon them
“playing” because the boy continued to threaten to hurt his younger sister.
When Perumal’s father disowned him, Perumal left for a neighbouring country, in order to be with
his girlfriend and to find work. He struggled with homelessness and joblessness. If he was lucky,
he got some odd jobs, but he faced intimidation and harassment at his workplace. Going into
men’s public toilets was an ordeal. At one workplace, which employs only male staff, mainly burly
men who worked with heavy vehicles, he would control his urge to urinate to avoid being sexually
harassed.
His employers discriminated against him and exploited him because he was an immigrant worker.
Often he would go hungry as he had no money to buy food. Sometimes, he survived on the
generosity of his colleagues. At other times, he would just survive on biscuits. At one point, when
he felt very alone, hungry and depressed, he decided to sell his virginity for the sum of MYR600.
Effects of Rights not Enjoyed:
Perumal’s rights should have been protected under the Convention on the Rights of the Child as
well as CEDAW. But there was no avenue for him to seek help. The State has failed to establish
such a support system for children who are lesbians, gays, bisexuals or transgenders (CEDAW
Articles 1, 2, 3, 5(a) and 24). Perumal’s rights continue to be denied him and he continues to be
stigmatised and discrimination against. The State has also failed to fulfil its obligations as outlined
under General Recommendation No.19 on Violence Against Women as well as General
Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of CEDAW. !
Case Study 9: Lesbianism Condoned as a Valid Excuse for Violence
When women’s sexuality challenges gender and heteronormative norms, a number of actors,
both State and non-State, see this as an affront to their sense of honour, and they then excuse
any form of violence against lesbians as valid and justifiable. This includes the despicable, violent
act of “corrective rape”.
Lesbian feared violence from ex-boyfriend
Sally had a boyfriend, who would lie and cheat her of her money. He could not hold down a job
for long and Sally had to support their relationship. Her father never liked the boy, but Sally found
it hard to break up with him as he was her first boyfriend. She hoped he would change and they
would get married someday.
The relationship took a turn for the worse when the couple got kicked out of their rented flat,
although Sally had given her boyfriend the rental money. Although they continued to stay
together, the relationship started to fray.
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Sally started mixing with a woman colleague and the two would go and watch movies and spend
time together. The colleague, like Sally, also had a boyfriend at the time. As time passed, the two
began a sexual relationship.
Her boyfriend was jealous of the woman colleague and feared that Sally might leave him. He
began stalking Sally, waiting for her in the dark, and would frighten her by appearing suddenly in
front of her. She felt very insecure and feared that he might beat her up. After two years of being
with him, she decided to end the relationship as she felt that she could not trust him anymore. He
had by then, abused her both financially and physically. When she broke the news to him, he
threatened her, saying, “If I find out that the two of you [women] are together, I’ll kill the two of
you”.
Eventually, Sally went to stay with her friend. Today, Sally knows that she is sexually attracted to
women. She considers herself a lesbian and her sexual orientation is known and accepted by her
family. She tells her father that she would be unhappy if she were to marry. Her father
understands her and defends her from nosy relatives. While she has a life partner, they are
unable to live openly as a couple because society in general will not accept it. However, she has
told her priest about her sexual orientation, and he felt that it was a non-issue.
Effects of Rights not Enjoyed:
Sally enjoyed her right to self-determination and freedom of movement with her parents. Even
though her father did not like her boyfriend, he did not insist that she leave him. Neither did he
reject her or stop her from having pre-marital sexual relations with her ex-boyfriend. Her
boyfriend, however, was very controlling and behaved as if he owned her (CEDAW Articles 3 and
5(a)).
While her inner circle of family and friends know of her sexual orientation, Sally cannot be open
about it because the law does not protect people like herself (CEDAW Articles 1, 2 and 15).
There is absolutely no education or awareness-raising in relation to sexual orientation and gender
identity as identity issues (CEDAW Articles 3 and 5(a)). Sally’s right to life, liberty and personal
security was directly threatened by her ex-boyfriend. The State failed to ensure that Sally is able
to enjoy the full realisation of her rights and hence, failed to fulfill its obligations under CEDAW
Article 24, as well as its obligations as outlined under General Recommendation No.19 on
Violence Against Women, as well as General Recommendation No. 28 on the Core Obligations of
States Parties under Article 2 of CEDAW.
Case Study 10: Bisexual and fearing for her personal safety
Stacey identifies herself as a bisexual. She is Malay and Muslim and advocates for LGBT rights.
Since she was 12 years old, she has been aware that she is attracted to both sexes. Her mother
does not know of her sexual orientation, but Stacey is sure that her mother will continue to love
and respect her. She has not told her mother because she does not want her mother to feel
pressured by society’s heteronormative expectations of a woman.
She knows the trials of being bisexual. Her classmates, both male and female, rejected her
during her schooldays, ostracising her during meals in the canteen. A man she was dating once
curtly said, “A bisexual is a person who only wants to have sex with everyone”. She received
death threats when she was caught in the car for khalwat with her boyfriend, who was of another
ethnicity and she was rudely chided—vulgar language was used - for choosing to be with
someone who is not a Malay and a Muslim. She understands fear and disempowerment, and the
feeling of “not being safe” because during her schoold days, she had already faced discrimination
from her Islamic religious teacher for refusing to wear the hijab (head scarf). She is very careful
when it comes to disclosing her sexual orientation for fear of repercussions.
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26!
Effects of Rights not Enjoyed:
Stacey cannot enjoy her human rights in totality (CEDAW Article 24). She is forced to prioritise
her right to life, liberty and security of person by remaining invisible (CEDAW Articles 1, 2, 3 and
5(a)). Her right to freedom of opinion and expression has been denied her because of who she
is—her sexual orientation and her choice of partner (CEDAW Article 15). This lack of
understanding and appreciation of sexual orientation and gender identity issues affects her as a
bisexual woman. Her right to her sexuality is further complicated when race and religion is
politicised, as in Malaysia. She has also been denied her right to freedom of thought, religion or
belief. For Stacey, the State has failed to fulfill its obligations as outlined under General
Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of CEDAW.
General Experiences of Discrimination Against Lesbians by Non-State Actors
Case Study 11: Media Persecution and Unethical Journalism
Case Study 11.1: Rainbow Nite and KL Word teamed up to host a PRIDE party in Kuala Lumpur
in August 2009. An undercover journalist from Harian Metro sneaked into the party and reported
on the event two days later, with a couple of blurry photos taken on her phone camera. The
article, entitled “Malay girls celebrating deviant Lesbian Festival”, made front page news on
Harian Metro. In the article, the journalist claimed that those who attended, including young Malay
girls, were consuming alcohol, dancing erotically and kissing each other. The news was
translated and republished in The Star, an English language newspaper. SUARAM, a local
human rights non-governmental organisation, released a press statement the same month,
condemning the actions of the newspaper and the journalist, urging the media to be ethical in its
reporting and to ensure that human rights are upheld at all times.
Case Study 11.2: Unethical journalism and the invasion of privacy of lesbian-organised functions.
Uninvited journalists gatecrashed private lesbian events incognito to write articles in Kosmo!
(Parti Lesbian Berleluasa) and the Harian Metro (Aksi Panas Pengkid, Lesbian) dated 2 and 16
May 2010 respectively. The write-ups used disparaging words such as “songsang” (deviant),
“lucah” (lewd) and “jijik” (disgusting) to describe the female queer (lesbian and women-who-love-
women) community. The words used by Kosmo! and the Harian Metro were subsequently used
by other newspapers (The Star, 3 May 2010). These articles painted the female queer community
unjustifiably and unfairly as deviants, and morally tainted.63
Effects of Rights not Enjoyed:
The State has denied women engaged in same-sex relationships the right to life, liberty and
security by not making the media accountable for invading the privacy of these women (CEDAW
Articles 1, 2, 3, 5(a) and 13). Through its silence, it is also endorsing the media’s call for citizens
to police others to stamp out what it deems as “abnormality”. This inaction has encouraged
zealous individuals and bodies to invade the privacy of citizens, monitor their personal lives and
“punish” or “rehabilitate” them arbitrarily, leading to various degrees of human rights violations
(CEDAW Article 15). The women are thus forced to curb their own right to freedom of movement
and they have to take other actions to protect their privacy. Their right to freedom of thought,
conscience and religion, as well as the right to freedom of opinion and expression, are also
denied (CEDAW Article 24).
Concluding Remarks to Case Studies
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
63Memorandum to SUHAKAM of 10 June 2010.
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All these case studies show that there is absolutely no legal recourse for women engaged in
same-sex relationships and transgenders if their human rights are violated. Even the Domestic
Violence Act 1994 applies only to married heterosexuals as the State does not recognise any
form of union outside of marriage, nor any form of relationship constituted outside the
heterosexual paradigm. This means that women who are in same-sex relationships and
transgenders who face domestic violence cannot gain protection under the law. Neither do they
seek assistance from the police for fear that the police might trivialise their problem, or worse,
abuse and harass them. Many of these harassment cases go unreported.64
State Obligations65
As described in Section 2.4, the human rights of women engaged in same-sex relationships and
those of transgenders have been violated because of their gender identity, gender expression
and/or sexual orientation. This violation is based on the perceived inferiority of women or of any
person embodying the female form and/or having feminine mannerisms and expression, as well
as stereotyped notions of what women should be and do.
As one of nine core human rights treaties upholding the human rights of all, the interpretation of
the Articles of CEDAW must be to uphold the right to equality and non-discrimination for all, and
for the achievement and enjoyment of human rights to the fullest, and in totality, by each
individual.
Recommendations to the Malaysian Government
The Malaysian government must recognise that gender identity, gender expression and sexual
orientation are integral to every person’s dignity and humanity. The freedom to claim these
aspects of selfhood and self-identity without fear of violence and/or discrimination enables a
climate of mutual respect and equality for all people. It is essential that the Malaysian government
recognises and promotes the equality for all human beings, regardless of sex or sexual
orientation with the following recommendations:
1 Obligation of the State to Ensure the Respect of the Human Rights of Lesbians,
Bisexual Women and Transgenders
a) Educate the judiciary, the legal profession, the police, Islamic religious affairs
department officers and State authorities on the right to equality and non-discrimination
The human rights of women engaged in same-sex relationships and transgenders must be
respected, protected, promoted and fulfilled. Awareness, understanding and appreciation of
General Recommendation No. 28 must be facilitated when implementing paragraphs 11 and 12
of the Concluding Comments of the CEDAW Committee, made to Malaysia during its 35th session
(see Annex 8).
b) Review and reform all laws that are inconsistent with the spirit and intent of CEDAW
Articles 1 to 5, including rules and initiatives by State institutions which discriminate on
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
64Teh Yeik Koon. 2002 The Mak Nyahs: Malaysian Male to Female Transsexuals, Singapore: Eastern
Universities Press.
65The author recommends that readers also look at IGLHRC’s work in Equal and Indivisible: Crafting
Inclusive Shadow Reports for CEDAW, particularly the section on CEDAW: A Convention with the Potential
for Inclusion, pp.12–14.
!
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28!
the basis of gender identity, gender expression and sexual orientation, or which can be
used to blackmail and criminalise transgenders and women in same-sex relationships:
• Syariah state laws: Laws on “Men posing as women” or “Men impersonating women”,
“Women posing as men” or “Women impersonating men”, as well as laws on lesbianism
(see Annexures 2 and 3).
• Malaysian Minor Offences Act 1955 Section 21 (see Annex 4).
• Malaysian Penal Code Section 377.
c) Review laws that criminalise sex work and sex workers, and strengthen the legal
framework to protect the human rights of sex workers
Laws that criminalise soliciting (Section 372B of the Malaysian Penal Code66) should be repealed
and made consistent with Article 6 of CEDAW.
2 Obligation of the State to Ensure the Promotion of Human Rights of Lesbians,
Bisexual Women and Transgenders
a) Establish structures, institutions and mechanisms for more effective public education
on human rights
Educate citizens on constitutional provisions for the protection of the human rights of citizens and
non-citizens, and educate the public on the spirit and core values of the Universal Declaration of
Human Rights and the Yogyakarta Principles. This includes taking all necessary measures to:
• Ensure sex education in schools is non-judgmental, just and fair. Teachers are
responsible for ensuring that pregnant schoolgirls are not discriminated against or
stigmatised. Parents should be encouraged to discuss sex openly with their children and
be non-judgemental in their approach.
• Develop positive public service messages to promote the human rights of LGBT. These
messages should be disseminated by both public and private media stations to debunk
stereotyped views.
• Publish, translate and widely disseminate the full report and research findings of Projek
Kasturi so that the Malaysian society will have a better understanding of the issues faced
by the LGBT community.
b) Support the LGBT community to enable them to work as equal partners with State
actors and non-State actors in eliminating the violence and persecution targeted at them;
and in addressing the issues of stigmatisation and discrimination against them.
The Malaysian government is encouraged to:
• Fund human rights-based work and services meant to promote and protect the human
rights of the LGBT community. This includes initiatives led by the LGBT community.
• Establish and ensure an ongoing dialogue and awareness-raising programme to increase
knowledge and sensitivity among religious groups, government authorities, media and
other key actors, that sexual orientation and gender identity are identity issues.
3 Obligation of the State to Ensure that the Human Rights of Lesbians, Bisexual Women
and Transgenders are Protected
a) Eliminate all forms of gender-based discrimination and violence
The Malaysian government is encouraged to:
• Implement the CEDAW Committee’s Concluding Comments, made during its 35th
session, specifically paragraphs 15, 16, 17, 18, 19 and 32 (see Annex 8), as well as its
State obligations under General Recommendation 19 on Violence Against Women.
• Establish legal protection and mechanisms to redress violence perpetrated against
women who engage in same-sex relationships and transgenders, in full consultation with
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
66Section 372 is about criminalising the exploitation of a person for the purpose of prostitution, i.e., it is
meant to prosecute the person who exploits another for the purpose of prostitution.
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29!
them. This includes the review and expansion of rape laws to include the rape of
lesbians, men, gay men, and transgenders. Provide effective redress for violence
perpetrated by police personnel, religious authorities, family members and any other
institution or members of the general public. Enforce the law against all State and non-
State actors for vigilantism against those whose sexuality or gender identity is perceived
to deviate from heteronormativity.
• Expand the Domestic Violence Act, which was enacted in 1994, to include same-sex
partnerships.
• Take legal action against institutions which promote and encourage discrimination,
violence and the persecution of any minority community on the basis of gender identity,
gender expression or sexual orientation.
• Dismantle all State institutions or initiatives that were established with the purpose of
regulating and monitoring adults’ sexual or moral behaviour in consensual situations.
4 Obligation of the State to Ensure the Fulfilment of Human Rights of Lesbians, Bisexual
Women and Transgenders
a) To ensure that the Malaysian Federal Constitution is consistent with the spirit and intent
of the CEDAW Convention noting the State’s recent official withdrawal of its reservations
to CEDAW Articles 5(a) and 7(b):
• Fulfill its obligations under Article 2(f) and to take all necessary and appropriate
measures, including legislation, to modify and abolish existing laws, regulations, customs
and practices which encourage or perpetuate discrimination against women who have
same-sex relationships, and transgenders.
• Implement the Concluding Comments of the CEDAW Committee to Malaysia during its
35th session, especially paragraphs 7, 8, 9, 10, 13 and 14 (see annex 8). Declare and
expand the interpretation of Article 8(2) of the Malaysian Federal Constitution to include
non-discrimination on the basis of gender identity and sexuality.
• Uphold the right to freedom of religion for all Malaysians, Muslim or non-Muslim, as
protected under Article 11 of the Malaysian Federal Constitution and Article 18 under the
Universal Declaration of Human Rights.67
• Uphold sexual rights, including the right to choose a partner/spouse in a relationship in
accordance to CEDAW Article 16.1 and General Recommendation 21, as well as Articles
16 (2) and (3) of the Universal Declaration of Human Rights.
• Reform laws and remove inconsistencies between civil law and syariah law to ensure that
there is no conflict in the law with regard to respecting, promoting, protecting and fulfilling
women’s and transgenders’ rights to equality and non-discrimination. This reform should
be resolved in full compliance with the Constitution and the provisions of the Convention
and the Committee’s general recommendations. An official consultative and independent
committee with at least 50% to 75% of its members comprising members of the LGBT
community should be formed to ensure continuous consultation.
b) Officially Recognise Transgenders as having Legitimate Identities by Establishing an
Enabling Environment through Policies and Laws for Their Socio-Economic Advancement
• Conduct comprehensive research into the special needs of transgenders and, in
consultation with them, develop policies to give them access to healthcare services, low-
cost housing and bank loans. Their rights to education and employment should also be
better served and protected.
• Based on their articulated needs and interests, provide training opportunities for the
transgender community to develop skills to give them wider choices of employment.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
67Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to
change his/her religion or belief, and freedom, either alone or in community with others, and in public or
private, to manifest his/her religion or belief in teaching, practice, worship and observance.
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30!
• Recognise transgenders officially as a separate community with legal identities as
people. Expand on the categories of gender for identification purposes to include male,
female, transman and transwoman.68
• Recognise trangenders as a minority and determine quotas for their representation in all
sectors and services, especially in education, housing and employment.
• Provide adequate facilities for transgenders (separate facilities for transwomen and
transmen) in hospitals and prisons, and toilet utilities in all government agencies and
private entities, as well as in public areas.
• Ensure that medical health personnel are sensitised and ready to address the health
needs of transgenders, especially in the areas of sexual and reproductive health.
• Encourage, facilitate and provide for the political participation of transgenders.
Conclusion
The then UN Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, on 10
April 2002, in her statement at the 58th session of the Commission on Human Rights noted that
“gender-based violence… is particularly acute when combined with discrimination on the basis of
sexual orientation or change in gender identity. Violence against sexual minorities is on the
increase and it is important that we take up the challenge of what may be called the last frontier of
human rights.” The report on 15 Years of The United Nations Special Rapporteur on Violence
Against Women, Its Causes and Consequences (1994–2009): A Critical Review also states:
“While the approaches promoting empowerment and agency need to be developed further, they
must be combined with affirmation of rights and freedoms, particularly with regard to the more
contentious areas, such as sexuality.”
For the women’s rights groups which develop CEDAW shadow reports and for the CEDAW
Committee, one of the most critical challenges of the CEDAW Convention is the respect,
protection, promotion and fulfillment of human rights for women engaged in same-sex
relationships and transgenders. This hinges strongly on the working definition and understanding
of the term “women” and the creativity and readiness in redefining this very binary world of males
and females. This technicality on the understanding of the term “women” must not, however, be
used as an excuse to limit the ability and readiness of any State party to respect, protect, promote
and fulfill universal human rights. In the words of UN Secretary-General Ban Ki-moon on 10
December 2010, “As men and women of conscience, we reject discrimination in general, and in
particular, discrimination based on sexual orientation and gender identity. When individuals are
attacked, abused or imprisoned because of their sexual orientation, we must speak out . . .
Today, many nations have modern constitutions that guarantee essential rights and liberties. And
yet, homosexuality is considered a crime in more than 70 countries. This is not right. Yes, we
recognise that social attitudes run deep. Yes, social change often comes with time. But let there
be no confusion: where there is tension between cultural attitudes and universal human rights,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
68Both Iran and Egypt support sex reassignment surgery. In Iran, the advocacy was led by a transgender
named Fereydoon. Fereydoon wanted to have sex reassignment surgery to become a woman physically,
but wanted religious authorisation to do so. In 1975, Fereydoon began writing to Ayatollah Khomeini, who
was then in exile, to get his blessings for a sex change. When the Iranian revolution took place in 1979,
Fereydoon was fired, forcefully injected with male hormones, and institutionalised. Using his connections, he
was subsequently released and started lobbying the leaders of the nation to permit him to undergo a sex
change. Finally, he was given an audience with Ayatollah Khomeini—after being beaten up by his guards—
and was granted a letter authorising his gender reassignment surgery. Today, she’s known as Maryam
Hartoon Molkara. However, in these countries, homosexuals are forcibly subjected to sex reassignment
surgery if they do not conform to heteronormativity even though they neither identify themselves as
transgenders nor do they want to change their sex.
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31!
rights must carry the day. Personal disapproval, even society’s disapproval, is no excuse to
arrest, detain, imprison, harass or torture anyone, ever.”
On June 17, 2011, the United Nations Human Rights Council (HRC) narrowly adopted a
Resolution expressing grave concern about acts of violence and discrimination against individuals
because of their sexual orientation and gender identity. It is an important first step by the HRC in
the struggle to combat discrimination and violence against LGBT and intersexed persons around
the world. Malaysia, as a member state of the HRC, voted against this resolution. Hence, there is
a need to escalate efforts to make Malaysia accountable for the respect, promotion, protection
and fulfilment of the human rights of the LGBT and intersexed community, and to integrate this
work within the framework of women’s human rights, as well as other rights-based frameworks.
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32!
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Annex 169
!
General Recommendation No. 27 on older women and protection of their human rights
CEDAW/C/2010/47/GC.1
Older women and discrimination: Specific areas of concern
11. Both men and women experience discrimination based on old age, but older women
experience ageing differently. The impact of gender inequalities throughout their lifespan is
exacerbated in old age and is often based on deep rooted cultural and social norms. The
discrimination that older women experience is often a result of unfair resource allocation,
maltreatment, neglect and limited access to basic services.
12. The concrete forms of discrimination against older women may differ considerably in various
socioeconomic circumstances and socio-cultural environments, in which equality of opportunities
and choices regarding education, work, health, family and private life have been enhanced or
limited. In many countries the lack of telecommunication skills, access to internet or adequate
housing and social services, loneliness and isolation pose problems for older women while older
women living in rural areas or urban slums often suffer a severe lack of basic resources for
subsistence, income security, access to healthcare and information on and enjoyment of their
entitlements and rights,
13. The discrimination older women experience is often multidimensional, with age discrimination,
compounding other forms of discrimination based on sex, gender, ethnic origin, disability, levels
of poverty, sexual orientation and gender identity, migrant status, marital and family status,
literacy and other grounds. Older women who are members of minority, ethnic or indigenous
groups, or who are internally displaced or stateless often experience a disproportionate degree of
discrimination.
!
General Recommendation No. 28 on the Core Obligations of States Parties under Article 2
of the Convention on the Elimination of All Forms of Discrimination Against Women
18. Intersectionality is a basic concept for understanding the scope of the general obligations of
States parties contained in Article 2. The discrimination of women based on sex and gender is
inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief,
health, status, age, class, caste, and sexual orientation and gender identity. Discrimination on the
basis of sex or gender may affect women belonging to such groups to a different degree or in
different ways than men. States parties must legally recognise and prohibit such intersecting
forms of discrimination and their compounded negative impact on the women concerned. They
also need to adopt and pursue policies and programmes designed to eliminate such occurrences,
including, where appropriate, temporary special measures in accordance with Article 4,
paragraph 1, of the Convention and General Recommendation No. 25.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
69http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/1235.html. Last accessed on 31
August 2011.
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Annex 2
Syariah Criminalisation of Musahaqah (Lesbianism)
[Note: There is often no official English translation for these texts. Any translation into English has
been provided to the best of the author’s ability]
ENAKMEN 4 TAHUN 1993
ENAKMEN JENAYAH DALAM SYARAK 1991 (NEGERI PERLIS)
BAHAGIAN II - KESALAHAN-KESALAHAN
Seksyen 14. Musahaqah.
Mana-mana orang perempuan yang dengan sengaja melakukan musahaqah dengan perempuan
yang lain adalah bersalah atas suatu kesalahan dan boleh, apabila disabitkan, dikenakan
hukuman denda tidak melebihi lima ribu ringgit atau penjara selama tempoh tidak melebihi tiga
tahun atau kedua-duanya.
ENAKMEN 9 TAHUN 1988
ENAKMEN KANUN JENAYAH SYARIAH 1988 (NEGERI KEDAH)
BAHAGIAN II - KESALAHAN-KESALAHAN
Seksyen 15. Musahaqah.
Mana-mana orang perempuan yang dengan sengaja melakukan musahaqah dengan perempuan
yang lain adalah bersalah atas suatu kesalahan dan boleh, apabila disabitkan, dikenakan
hukuman denda tidak melebihi lima ratus ringgit atau penjara selama tempoh tidak melebihi
empat bulan atau kedua-duanya.
ENAKMEN 3 TAHUN 1996
ENAKMEN KESALAHAN JENAYAH SYARIAH (NEGERI PULAU PINANG) 1996
BAHAGIAN IV - KESALAHAN YANG BERHUBUNG DENGAN KESUSILAAN
Seksyen 26. Musahaqah.
Mana-mana orang perempuan yang melakukan musahaqah adalah melakukan suatu kesalahan
dan apabila disabitkan boleh didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama
tempoh tidak melebihi tiga tahun atau disebat tidak melebihi enam sebatan atau dihukum dengan
mana-mana kombinasi hukuman itu.
ENAKMEN 3 TAHUN 1992
ENAKMEN JENAYAH (SYARIAH) 1992 (NEGERI PERAK)
BAHAGIAN VI - KESALAHAN BERHUBUNGAN DENGAN MARUAH DIRI
Seksyen 53. Musahaqah.
Seseorang perempuan yang dengan sengaja melakukan musahaqah adalah melakukan suatu
kesalahan dan hendaklah, apabila disabitkan, dikenakan hukuman denda tidak melebihi dua ribu
ringgit atau penjara selama tempoh tidak melebihi satu tahun atau kedua-duanya.
AKTA 559
AKTA KESALAHAN JENAYAH SYARIAH (WILAYAH-WILAYAH PERSEKUTUAN) 1997
BAHAGIAN IV - KESALAHAN YANG BERHUBUNGAN DENGAN KESUSILAAN
Seksyen 26. Musahaqah.
Mana-mana orang perempuan yang melakukan musahaqah adalah melakukan suatu kesalahan
dan apabila disabitkan boleh didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama
tempoh tidak melebihi tiga tahun atau disebat tidak melebihi enam sebatan atau dihukum dengan
mana-mana kombinasi hukuman itu.
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36!
ENAKMEN 9 TAHUN 1995
ENAKMEN JENAYAH SYARIAH (SELANGOR) 1995
BAHAGIAN IV - KESALAHAN YANG BERHUBUNGAN DENGAN KESUSILAAN
Seksyen 27. Hubungan jenis antara orang yang sama jantina.
Mana-mana orang yang melakukan hubungan jenis dengan orang yang sama jantina dengannya
adalah melakukan suatu kesalahan dan apabila disabitkan boleh didenda tidak melebihi dua ribu
ringgit atau dipenjarakan selama tempoh tidak melebihi satu tahun atau kedua-duanya.
ENAKMEN 4 TAHUN 1992
ENAKMEN JENAYAH SYARIAH NEGERI SEMBILAN 1992
BAHAGIAN IV - KESALAHAN
Darihal kesalahan mengenai kehormatan diri
Seksyen 64. Musahaqah.
Seorang perempuan yang melakukan musahaqah dengan perempuan yang lain adalah
melakukan satu kesalahan dan hendaklah apabila disabitkan dikenakan hukuman denda tidak
melebihi tiga ribu ringgit atau penjara selama tempoh tidak melebihi dua tahun atau kedua-
duanya.
ENAKMEN 6 TAHUN 1991
ENAKMEN KESALAHAN SYARIAH (NEGERI MELAKA) 1991
BAHAGIAN IV - KESALAHAN-KESALAHAN LAIN
Seksyen 59. Musahaqah.
Mana-mana seorang perempuan dengan sengaja melakukan musahaqah dengan seorang
perempuan yang lain adalah merupakan suatu kesalahan dan apabila disabitkan kesalahan
boleh dikenakan hukuman denda tidak melebihi satu ribu ringgit atau dipenjara selama tempoh
tidak melebihi enam bulan atau kedua-duanya sekali.
ENAKMEN 4 TAHUN 1997
ENAKMEN KESALAHAN JENAYAH SYARIAH 1997 (NEGERI JOHOR)
BAHAGIAN IV - KESALAHAN YANG BERHUBUNGAN DENGAN KESUSILAAN
Seksyen 26. Musahaqah.
Mana-mana orang perempuan yang melakukan musahaqah adalah melakukan suatu kesalahan
dan apabila disabitkan boleh didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama
tempoh tidak melebihi tiga tahun atau disebat tidak melebihi enam sebatan atau dihukum dengan
mana-mana kombinasi hukuman itu.
ENAKMEN 7 TAHUN 2001
ENAKMEN KESALAHAN JENAYAH SYARIAH (TAKZIR) (TERENGGANU) 2001
BAHAGIAN IV - KESALAHAN YANG BERHUBUNGAN DENGAN KESUSILAAN
Seksyen 30. Musahaqah.
Mana-mana orang perempuan yang melakukan musahaqah adalah melakukan suatu kesalahan
dan apabila disabitkan boleh didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama
tempoh tidak melebihi tiga tahun atau disebat tidak melebihi enam sebatan atau dihukum dengan
mana-mana kombinasi hukuman itu.
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ENAKMEN 2 TAHUN 1985
ENAKMEN KANUN JENAYAH SYARIAH 1985 (NEGERI KELANTAN)
BAHAGIAN II - KESALAHAN-KESALAHAN
Seksyen 15. Musahakah.
Seseorang perempuan yang dengan sengaja melakukan musahakah dengan perempuan yang
lain adalah bersalah atas suatu kesalahan dan boleh, apabila disabitkan, dikenakan hukuman
denda tidak melebihi lima ratus ringgit atau penjara selama tempoh tidak melebihi empat bulan
atau kedua-duanya.
ENAKMEN 3 TAHUN 1995
ENAKMEN KESALAHAN JENAYAH SYARIAH 1995 (NEGERI SABAH)
BAHAGIAN IV - KESALAHAN
Seksyen 77. Musahaqah.
Mana-mana seorang perempuan dengan sengaja melakukan musahaqah dengan perempuan
yang lain adalah bersalah atas suatu kesalahan dan boleh, apabila disabitkan, dikenakan
hukuman denda tidak melebihi satu ribu ringgit atau penjara selama tempoh tidak melebihi enam
bulan atau kedua-duanya sekali.
English version:
Section 77. Musahaqak.
Any woman who wilfully commits musahaqah with another woman shall be guilty of an offence
and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment
for a term not exceeding six months or both.
Source: http://sabahlaw.com/Syariah_Criminal_Offences_Enactment_1995.html. Last accessed on 31
August 2011
ORDINAN 46 TAHUN 2001
ORDINAN KESALAHAN JENAYAH SYARIAH 2001 (NEGERI SARAWAK)
BAHAGIAN IV - KESALAHAN YANG BERHUBUNGAN DENGAN KESUSILAAN
Seksyen 23. Musahaqah.
Mana-mana perempuan yang melakukan musahaqah adalah melakukan suatu kesalahan dan
apabila disabitkan boleh dikenakan denda tidak melebihi lima ribu ringgit atau pemenjaraan
selama tempoh tidak melebihi tiga tahun atau disebat tidak melebihi enam sebatan atau dihukum
dengan mana-mana kombinasi hukuman itu.
Note: Information could not be found on Pahang’s syariah law criminalising musahaqah.
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Annex 3
Syariah Criminal Offences Enactment of selected states in Malaysia which have been used
to persecute the Mak Nyah (male-to-female transsexual) community on the basis of their
gender identity and gender expression
[Note: There is often no official English translation for these texts. Any translation into English has
been provided to the best of the author’s ability. ]
ENAKMEN 4 TAHUN 1992
ENAKMEN JENAYAH SYARIAH NEGERI SEMBILAN 1992
BAHAGIAN IV - KESALAHAN
Darihal kesalahan mengenai kehormatan diri
Seksyen 66. Lelaki berlagak seperti perempuan.
Mana-mana orang lelaki yang memakai pakaian perempuan atau berlagak seperti perempuan di
mana-mana tempat awam adalah melakukan satu kesalahan dan hendaklah apabila disabitkan
dikenakan hukuman denda tidak melebihi satu ribu ringgit atau penjara selama tempoh tidak
melebihi enam bulan atau kedua-duanya.
ENAKMEN 9 TAHUN 1988!
ENAKMEN KANUN JENAYAH SYARIAH 1988 (NEGERI KEDAH)
BAHAGIAN II - KESALAHAN-KESALAHAN
Seksyen 7. Pondan.!
Mana-mana orang lelaki yang memakai pakaian perempuan dan berlagak seperti perempuan di
mana-mana tempat awam adalah bersalah atas suatu kesalahan dan boleh, apabila disabitkan,
dikenakan hukuman denda tidak melebihi satu ribu ringgit atau penjara selama tempoh tidak
melebihi enam bulan atau kedua-duanya.
ENAKMEN 2 TAHUN 1985
ENAKMEN KANUN JENAYAH SYARIAH 1985 (NEGERI KELANTAN)
BAHAGIAN II - KESALAHAN-KESALAHAN
Seksyen 7. Pondan.!
Seseorang lelaki yang memakai pakaian perempuan dan berlagak seperti perempuan di mana-
mana tempat awam adalah bersalah atas suatu kesalahan dan boleh, apabila disabitkan,
dikenakan hukuman denda tidak melebihi satu ribu ringgit atau penjara selama tempoh tidak
melebihi enam bulan atau kedua-duanya.
ENAKMEN 6 TAHUN 1991
ENAKMEN KESALAHAN SYARIAH (NEGERI MELAKA) 1991
BAHAGIAN IV - KESALAHAN-KESALAHAN LAIN
Seksyen 72. Lelaki berlagak seperti perempuan.
Seseorang lelaki yang memakai pakaian perempuan dan berlagak seperti perempuan di mana-
mana tempat awam tanpa alasan yang munasabah adalah merupakan suatu kesalahan dan
apabila disabitkan kesalahan boleh dikenakan hukuman denda tidak melebihi satu ribu ringgit
atau dipenjara selama tempoh tidak melebihi enam bulan atau kedua-duanya sekali.
ENAKMEN 4 TAHUN 1993
ENAKMEN JENAYAH DALAM SYARAK 1991 (NEGERI PERLIS)
BAHAGIAN II - KESALAHAN-KESALAHAN
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Seksyen 7. Pondan.!
(1) Mana-mana orang lelaki yang berlagak seperti perempuan (tasyabbuh) di mana-mana tempat
awam adalah bersalah atas suatu kesalahan dan boleh, apabila disabitkan, dikenakan hukuman
denda tidak melebihi lima ribu ringgit atau penjara selama tempoh tidak melebihi tiga tahun atau
kedua-duanya.
ENAKMEN 3 TAHUN 1995
ENAKMEN KESALAHAN JENAYAH SYARIAH 1995 (NEGERI SABAH)
BAHAGIAN IV - KESALAHAN
Seksyen 92. Lelaki berlagak seperti perempuan atau sebaliknya.
Seseorang lelaki yang memakai pakaian perempuan atau berlagak seperti perempuan atau
sebaliknya di mana-mana tempat awam adalah bersalah atas suatu kesalahan dan boleh,
apabila disabitkan dikenakan hukuman denda tidak melebihi satu ribu ringgit atau penjara selama
tempoh tidak melebihi enam bulan atau kedua-duanya sekali.
English version:
Section 92: Male posing as woman or vice versa.
Any male person who, in any public place, wears a woman's attire and poses as a woman or vice
versa shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one
thousand ringgit or to imprisonment for a term not exceeding six months or to both.
Source: http://sabahlaw.com/Syariah_Criminal_Offences_Enactment_1995.html. Last accessed on 31
August 2011.
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Annex 4
Selected Texts under Section 377 of the Malaysian Penal Code
Section 377A of the Penal Code states any person who has sexual connection with another
person by the introduction of the penis into the anus or mouth of the other person is said to
commit carnal intercourse against the order of nature.
Section 377B reads whoever voluntarily commits carnal intercourse against the order of nature
shall be punished with imprisonment for a term which may extend to twenty years, and shall also
be liable to whipping.
Section 377D explains any person who, in public or private, commits, or abets the commission of,
or procures or attempts to procure the commission by any person of, any act of gross indecency
with another person, shall be punished with imprisonment for a term which may extend to two
years.
Section 21. Minor Offences Act
Section 21 of the Minor Offences which is vaguely put as “drunkenness and disorderly behaviour
in public places” explains any person who is found drunk and incapable of taking care of himself,
or is guilty of any riotous, disorderly or indecent behavior, or of persistently soliciting or
importuning for immoral purposes in any public road or in any public place or place of public
amusement or resort, or in the immediate vicinity of any Court or of any public office or police
station or place of worship, shall be liable to a fine not exceeding twenty-five ringgit (equivalent to
USD 7.56) or to imprisonment for a term not exceeding fourteen days, and on a second of
subsequent conviction to a fine not exceeding one hundred ringgit or to imprisonment for a term
not exceeding three months or to both.70
Section 503. Criminal intimidation
Whoever threatens another with any injury to his person, reputation or property, or to the person
or reputation of any one in whom that person is interested, with intent to cause alarm to that
person, or to cause that person to do any act which he is not legally bound to do, or to omit to do
any act which that person is legally entitled to do, as the means of avoiding the execution of such
threat, commits criminal intimidation.
Section 120A. Definition of criminal conspiracy.
When two or more person agree to do, or cause to be done,
(1) An illegal act, or
(2) (2) An act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy: Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in pursuance thereof.
Section 505. Statements conducing to public mischief
Whoever makes, publishes or circulates any statement, rumour or report, -
(c) With intent to incite, or which is likely to incite, any class or community or persons to commit
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70Thilaga Sulathireh and Angela M. Kuga Thas. 2010. Legislation Criminalising Non-Normative Sexualities
and Identities, Its Impact to Human Rights, and Best Practices in Commonwealth Countries: A Study on
Malaysia Commissioned by Global Rights. Prepared for and submitted to Global Rights. Unpublished.
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any offence against any other class or community;
Shall be punished with imprisonment which may extend to two years, or with fine, or with both.
Section 507. Criminal intimidation by an anonymous communication
Whoever commits the offence of criminal intimidation by an anonymous communication, or by
having taken precautions to conceal the name or abode of the person from whom the threat
comes, shall be punished with imprisonment for a term which may extend to two years, in
addition to the punishment provided for the offence by section 506.
Section 508. Act caused by inducing person to believe that he will be rendered an object of
Divine displeasure
Whoever voluntarily causes or attempts to cause any person to do anything which that person is
not legally bound to do, or to omit to do anything which he is legally entitled to do, by inducing or
attempting to induce that person to believe that he or any person in whom he is interested will
become or will be rendered by some act of the offender an object of Divine displeasure if he does
not do the thing which it is the object of the offender to cause him to do, or if he does the thing
which it is the object of the offender to cause him to omit, shall be punished with imprisonment for
a tem which may extend to one year, or with fine, or with both.
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Annex 5
Compilation71 of Sexual Orientation and Gender Identity references from the CEDAW
Committee in Concluding Observations to States Parties
Concluding Observations: Germany, CEDAW/C/DEU/CO/6, February 12, 2009
5. The Committee commends the State Party for the adoption of the General Equal Treatment
Act of 18 August 2006 aimed at preventing and eliminating discrimination, as well as of
harassment and sexual harassment.72
61. The Committee notes with satisfaction the cooperation of the State Party with civil society
organisations, particularly women’s organisations, which is mostly achieved through Government
cooperation with such organisations on specific programmes and projects. The Committee
regrets, however, that the call for dialogue by non-governmental organisations of intersexual and
transsexual people has not been favourably entertained by the State Party.
62. The Committee requests the State Party to enter into dialogue with non-governmental
organisations of intersexual and transsexual people in order to better understand their claims and
to take effective action to protect their human rights.
Concluding Observations: Guatemala, CEDAW/C/GUA/CO/7, February 10, 2009
19. Notwithstanding various measures taken by the State Party to eliminate gender stereotypes,
the Committee is concerned at the pervasiveness of patriarchal attitudes and deep rooted
stereotypes regarding the roles and responsibilities of women and men in the family, in the
workplace, in political life and society, which constitute serious obstacles to women’s enjoyment
of their human rights. The Committee is also concerned that certain groups of women, in addition
to being affected by gender stereotypes, face multiple forms of discrimination on grounds such as
their ethnicity or their sexuality.
20. The Committee urges the State Party to increase its efforts to design and implement
comprehensive awareness-raising programmes to foster a better understanding of, and support
for, equality between women and men at all levels of society. Such efforts should aim at
modifying stereotypical attitudes and cultural norms about the responsibilities and roles of women
and men in the family, the workplace, political life and society, as required under Articles 2 (f )
and 5 (a) of the Convention. The Committee also urges the State Party to adopt an overall
strategy to eliminate gender stereotypes relating to women in general, and in particular
discrimination against women based on their ethnicity or sexuality. This strategy could include
awareness-raising programmes in school curricula, the training of teachers and the sensitisation
of the media and the public at large, including actions specifically targeting men and boys.
Concluding Observations: Ecuador, CEDAW/C/ECU/CO/7, November 7, 2008
28. While noting the prohibition of discrimination against sexual minorities referred to in Article 11,
paragraph 2 of the new Constitution, the Committee is concerned with reports of discrimination
against women on this ground.
29. The Committee recommends that the State Party ensure investigation of such cases and
undertake remedial action in line with its Constitution.
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71IGLHRC. 2010. Equal and Indivisible: Crafting Inclusive Shadow Reports for CEDAW. pp.37 & 38.
72The purpose of this Act is to prevent or to stop discrimination on the grounds of race or ethnic origin,
gender, religion or belief, disability, age or sexual orientation. See section 1 of this Act, online resources of
the Federal Anti-Discrimination Agency, www.antidiskriminierungsstelle.de.
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Concluding Observations: Kyrgyzstan, CEDAW/C/KGZ/CO/3, November 14, 2008
43. The Committee is concerned about reports of discrimination and harassment against
women because of their sexuality as well as about acts of harassment against women in
prostitution by police officials.
Concluding Observations: Sweden, A/56/38, July 31, 2001
334. The Committee commends the Government for passing legislation that provides residence
permits to individuals who have a well-founded fear of persecution on the basis of sexual
orientation or gender, particularly in cases that involve discrimination against women.
Concluding Observations: Kyrgyzstan, A/54/38, August 20, 1999
127. The Committee is concerned that lesbianism is classified as a sexual offence in the Penal
Code.
128. The Committee recommends that lesbianism be reconceptualised as a sexual orientation
and that penalties for its practice be abolished.
Concluding Observations: Ireland, A/54/38, July 1, 1999
(a) Introduction by the State Party 162. The representative explained that the 1998 Employment
Equality Act outlawed discrimination on 9 grounds, including gender, marital status, family status,
sexual orientation and membership in the “traveler” community.
Concluding Observations: Mexico, A/53/38, May 14, 1998
420. The Committee requests information in the next report on whether homosexuality is
penalised in the criminal code.
Concluding Observations: Canada, A/52/38/Rev.1, August 12, 1997
310. A recent amendment to the Canadian Human Rights Act granted protection against
discrimination on the basis of sexual orientation.
Concluding Observations: New Zealand, A/49/38, April 12, 1994
612. The Government had passed a new Human Rights Act in 1993, extending the grounds of
prohibited discrimination. Its grounds would now cover gender issues, including pregnancy,
childbirth, sexual harassment, marital and family status, sexual orientation, disability, age, race,
religion, employment status and political opinion. The Act would come into force in 1994.
Concluding Observations: Netherlands, A/49/38, April 12, 1994
253. Members were favourably impressed by the fact that, one year before presenting each
subsequent report to the Committee, the Government would have to report to Parliament, and
they commended the concern that was shown about the issue of sexual preference.
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Annex 6
STATEMENT FROM SEKSUALITI MERDEKA
(Versi Bahasa Melayu di bawah kenyataan Bahasa Inggeris)
RECEIVING DEATH THREATS FOR GIVING HOPE
Wed 22 Dec, 2010
WHAT IS “IT GETS BETTER IN MALAYSIA”?
It Gets Better in Malaysia is a video project about giving hope to young LGBT Malaysians: even
though things can be rough during the teenage years, it can get better. This message is targeted
at the minority of young Malaysians who are growing up as lesbian, gay, bisexual, transgender
(LGBT).
This project is in response to accounts of suicides and attempted suicides by LGBT teenagers
and adults. Statistics of such suicides are anywhere between three to six times higher than by
heterosexuals. This is due to the overwhelming feelings of loneliness, fear or hopelessness that
result from the stigma and discrimination against them. Most people have their families to turn to.
For LGBT youths, even their own families can be a source of rejection. They have no one to turn
to. We decided it is up to us who have survived similar situations to reach out to young LGBTs.
This is why the project was born. It’s not about making coming out videos. It is about giving hope
to youths at risk.
Seksualiti Merdeka, the organiser of an annual human rights festival on sexuality, especially the
human rights of LGBT, took on this empowering project in belief of the message’s importance and
relevance to Malaysia. The festival is organised by a coalition of groups and inviduals including
the Bar Council Malaysia, SUARAM, Empower, PT Foundation, United Nations, Amnesty
International, KRYSS, Purple Lab, Matahari Books, among others.
DEATH THREATS AGAINST HOPE GIVERS
To date, our video project has seen 15 contributions, four of which are online. The first is by
singer Peter Ong on 9 Dec 2010, followed by engineer-writer Azwan Ismail on 15 Dec,
university student Kavidha on 17 Dec, and Pastor Joe Pang on 20 Dec.
Within five days, Azwan Ismail’s video – It Gets Better in Malaysia: Azwan Ismail “Saya gay, saya
okay” – reached over 150,000 views and 3,400 comments, many of which are against him:
commentators have urged him to repent and return to the right path (heterosexuality). However,
most of these comments are vicious, rude and uncalled for, and some have even threatened
violence and murder towards Azwan and Seksualiti Merdeka members.
We find it irresponsible of the Minister in the Prime Minister’s Department Datuk Seri Jamil Khir
Baharom to ask JAKIM to monitor the activities of gay groups, while failing to ask JAKIM to
criminalise those who post abusive and vulgar comments which threaten Malaysian citizens with
violence and death.
The honorable minister’s primary concern is the image of Islam being tarnished. However, we feel
that Islam’s image can also be tarnished by those who speak with hate and intolerance,
completely without a trace of humanity.
We never intended to tarnish the image of Islam. We simply wanted to give hope.
We hope our leaders will not ignore threats of physical violence. Besides preventing meaningful
discourse and debate, these threats also further intimidate fellow Malaysians who are already
fearful for their well-being.
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AVENUES TO EXPRESS OURSELVES
We believe in respectful exchange of perspectives in Malaysia if we are truly a nation that
celebrates diversity, dynamism, and creativity. If LGBT Malaysians are given avenues to express
ourselves, we are certain the public will be more understanding and realise we are not a threat to
society.
We advocate the importance of self-awareness and self-acceptance for our emotional,
psychological, and spiritual well-being. This promotes awareness and acceptance of others, and
responsibility to ourselves and to others.
Sexual orientation and gender identity are identity issues. LGBTs do seek and fall in love just as
heterosexuals do. There are already so many gay Malaysians working in all sectors of society
from engineers to lawyers to CEOs.
Homosexuality is not a foreign concept, writer Amir Muhammad says in support of Azwan’s
video. “Some people,” he explains, “aren't appalled by the fact of Azwan Ismail's sexuality. What
they are affronted by is that he's a person who's giving his own name, and being completely
honest about what he wants to say.”
The intolerant and vicious comments prove that Malaysia is a hostile environment preventing any
LGBTs from leading honest, open and meaningful lives. This vicious cycle of shame and
intimidation needs to be broken once and for all. The pressure in having to pretend to be
something we are not and the loneliness and fear that comes with it often results in a misery that
may push some to the verge of suicide.
And that is why, more than ever, we need messages of hope such as that by Azwan Ismail:
“I am confident that things will be better. We have to gather our strengths from around us
because there people who can help us and give us the confidence to be ourselves, to face our
future...”
We need each other – not just other LGBTs, but all Malaysians. Please stop targeting and
marginalising LGBT Malaysians. Give us a chance to tell our stories of hope.
RECOMMENDATIONS
We believe Malaysian leaders, the media and the public should:
1. Ensure the non-discrimination of all Malaysians based on sexual orientation and gender
identity.
2. Condemn threats of violence and murder in the name of any religion
3. Establish non-judgemental, constructive and positive spaces and enable opportunities for
LGBTs in Malaysia to express themselves and to promote better understanding on issues based
on sexual orientation and gender identity.
4. Assure protection to participants of the “It Gets Better in Malaysia” project for helping to
spread hope to our LGBT youths
Seksualiti Merdeka
www.seksualitimerdeka.org
seksualitimerdeka@gmail.com
+ + + +
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Annex 7
Asylum Seeker73
In Malaysia I do not count as a person. I am not considered to be a man because I look like a
woman. I am not considered to be a woman because my identity card says that I am a man. I
have no rights to obtain employment or open a bank account, or even to get health insurance in
my name. Because I can’t open a bank account I can’t purchase a house. If I am sick and go to
the hospital, they will put me in the men’s ward. Any prescription or receipt they give me will be
issued in the name of [applicant’s former name]. The pharmacy calls out that name and it is very
embarrassing for me to answer to that name in front of everyone. People laugh at me and I worry
that someone will try to beat me or assault me because I am transgender. It is not possible for me
to change my identity card to say that I am a woman.
I cannot live in Malaysia There is nobody to take care of me and I am not allowed to work
because of my identity. I was arrested three times just because of who I am and I was forced to
pay money just so that I wouldn’t be put in jail. I did not do anything wrong but Malaysian society
and the government thinks that there is something wrong with who I am. I do not want to work as
a prostitute and that is the only life for me there. I am a transgender person I am being
persecuted by the government and by the authorities in Malaysia who will not allow me to
survive....
I [the applicant] 38 years, of age who am struggling in my life for justice. I would like to take this
opportunity to express my feeling sorrow and disappointment at my country which I am living
presently.
I am a Malaysian which rich in everything except for person like me who born as a boy but living
as a girl. I had been going thru painful life during my time. There is no justice, understanding, pity
and sympathy on people like us. I had been fighting for life for justice in my country but its failed.
My mum doesn’t work. She are (sic) housewife the only person who take care of me is my father
(he reasonally (sic) past away) there is no one to take care of me.
In my country they look down on (transsexual) like me and they don’t accept for what I am and
who I am they only care for their needs an their races and sex.
I am a complete woman now. I tried to get a job they look down on me because of my (Identity).
Its return that my gender as are (male). In Malay it means (Lelaki).
This is the reason why I am expressing my feeling to you sir/mdm how painful and difficult life I
am going thru in my country.
I am begging for leniency from you sir/mdm to allow me to stay in your country.
I would really appreciate if you sir/Mdm grant my wish...
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73http://lgbtlawblog.blogspot.com/2010/03/transgender-malaysian-accepted-as.html. Last accessed on 31
August 2011.
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Annex 874
Selected texts from the concluding comments of the Committee on the Elimination of
Discrimination against Women to Malaysia, made during its 35th session
Principal areas of concern and recommendations
7. The Committee is concerned that the Convention is not yet part of Malaysian law and thus its
provisions are not enforceable in domestic courts. While appreciating that the State party
amended Article 8 (2) of the Federal Constitution in 2001 to prohibit discrimination on the basis of
gender, the Committee is concerned about the narrow interpretation given to this Article by
Malaysian courts. The Committee expresses concern that neither the Federal Constitution nor
other legislation of the State party contains a definition of discrimination against women, in
accordance with Article 1 of the Convention, or the principle of equality of men and women, in line
with Article 2 (a) of the Convention.
8. The Committee calls on the State party to take immediate measures to ensure that the
Convention and its provisions are incorporated into national law and become fully applicable in
the domestic legal system. The Committee urges the State party to incorporate in its Constitution
and/or other appropriate national legislation, the definition of discrimination, encompassing both
direct and indirect discrimination, in line with Article 1 of the Convention. The Committee further
recommends that the State party enact and implement a comprehensive law reflecting
substantive equality of women with men in both public and private spheres of life. It also
recommends that the State party include adequate sanctions for acts of discrimination against
women and ensure that effective remedies are available to women whose rights have been
violated.
9. While welcoming the State party’s assurances that it is reviewing reservations to Articles 5 (a)
and 7 (b) with a view to removing them, the Committee is concerned that the State party is not
ready to similarly review and remove reservations to Articles 9 (2), 16 (1) (a), 16 (1) (c), 16 (1) (f),
16 (1) (g) and 16 (2). The Committee is particularly concerned at the State party’s position that
laws based on syariah interpretation cannot be reformed.
10. The Committee urges the State party to review all its remaining reservations with a view to
withdrawing them, and especially reservations to Article 16, which are contrary to the object and
purpose of the Convention.
11. While welcoming the fact that the Convention has been translated into Bahasa Melayu ,
Chinese and Tamil and disseminated to various women’s non-governmental organisations and
appreciating the State party’s initiative to create a children’s handbook on the Convention, the
Committee is concerned that the provisions of the Convention are not widely known by judges,
lawyers and prosecutors.
12. The Committee calls on the State party to ensure that the Convention and related domestic
legislation are made an integral part of legal education and the training of judicial officers,
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including judges, lawyers and prosecutors, so as to establish firmly in the country a legal culture
supportive of women’s equality and non-discrimination.
13. The Committee is concerned about the existence of the dual legal system of civil law and
multiple versions of syariah law, which results in continuing discrimination against women,
particularly in the field of marriage and family relations. The Committee is also concerned about
the State party’s restrictive interpretation of syariah law, including in the recent Islamic Family
Law (Federal Territories) Amendment Act 2005, which adversely affects the rights of Muslim
women. The Committee is further concerned about the lack of clarity in the legal system,
particularly as to whether civil or syariah law applies to the marriages of non-Muslim women
whose husbands convert to Islam.
14. The Committee urges the State party to undertake a process of law reform to remove
inconsistencies between civil law and syariah law, including by ensuring that any conflict of law
with regard to women’s rights to equality and non-discrimination is resolved in full compliance
with the Constitution and the provisions of the Convention and the Committee’s general
recommendations, particularly general recommendation 21 on equality in marriage and family
relations. In this regard, it encourages the State party to obtain information on comparative
jurisprudence and legislation, where more progressive interpretations of Islamic law have been
codified in legislative reforms. It also encourages the State party to take all necessary steps to
increase support for law reform, including through partnerships and collaboration with Islamic
jurisprudence research organisations, civil society organisations, women’s non-governmental
organisations and community leaders. The Committee further recommends that a strong federal
mechanism be put in place to harmonise and ensure consistency of application of syariah laws
across all States.
15. While noting the work of the Ministry of Education in providing guidelines to writers and
publishers of school textbooks to eliminate gender stereotypes from school books, the Committee
is concerned about the persistence of patriarchal attitudes and deep-rooted stereotypes regarding
the roles and responsibilities of women and men in the family and society. These stereotypes
present a significant impediment to the implementation of the Convention and are a root cause of
the disadvantaged position of women in a number of areas, including in the labour market and in
political and public life.
16. The Committee calls upon the State party to implement comprehensive measures to bring
about change in the widely accepted stereotypical roles of men and women. Such measures
should include awareness-raising and educational campaigns addressing women and men, girls
and boys, and religious leaders with a view to eliminating stereotypes associated with traditional
gender roles in the family and in society, in accordance with Articles 2 (f) and 5 (a) of the
Convention.
17. While appreciating the State party’s policy of at least 30 per cent women in decision making
levels in the public sector and noting that the Ministry of Women, Family and Community
Development is working with the United Nations Development Programme to develop an action
plan to implement this policy, the Committee is concerned about the low level of representation of
women in public and political life and in decision-making positions, including in the foreign
service. The Committee is also concerned about the level of representation of women at decision-
making level in private sector organisations.
18. The Committee encourages the State party to take sustained measures, including temporary
special measures in accordance with Article 4, paragraph 1, of the Convention and the
Committee’s general recommendation 25, and to establish concrete goals and timetables so as to
accelerate the increase in the representation of women, in elected and appointed bodies in all
areas of public life, including at the international level. The Committee invites the State party to
also encourage political parties to use quotas. It recommends that the State party conduct
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training programmes on leadership and negotiation skills for current and future women leaders. It
also encourages the State party to take measures that will lead to an increase in the number of
women at the decision-making level in private sector organisations. It further urges the State
party to undertake awareness-raising about the importance of women’s participation in decision-
making processes at all levels of society.
19. While appreciating that the Ninth Malaysia Plan (2006-2010) aims to increase women’s
participation in the labour force, the Committee is concerned at the lack of employment
opportunities for women despite the high level of education attained by girls and women. The
Committee is further concerned that the preliminary findings of a study conducted to determine
factors contributing to the mismatch between women’s educational achievements and their
opportunities in the labour market indicate that employers have a preference for male employees
due to strongly held stereotypes of men as being more independent workers. In this regard, the
Committee notes with concern that restrictions on women’s employment, as well as protective
employment legislation, policies and benefits for women, perpetuate traditional stereotypes
regarding women’s roles and responsibilities in public life and in the family.
32. The Committee requests the State party to ensure the wide participation of all ministries and
public bodies in, and to continue to consult with non-governmental organisations during, the
preparation of its next report. It encourages the State party to involve Parliament in a discussion
of the report before its submission to the Committee.
