Malaysia

Same-sex intimacy is prohibited under the Federal Penal Code 1936, which criminalises acts of “carnal knowledge against the order of nature” (sodomy) and “outrages on decency” (gross indecency). These provisions carry a maximum penalty of twenty years’ imprisonment with whipping. Both men and women are criminalised under the Penal Code. Although the law does not expressly criminalise transgender people, the offence of “outrages on decency” can be used to target them.

Same-sex intimacy has also been criminalised by state enacted Sharia laws. Such laws only apply to individuals who profess the religion of Islam in Transgender people are also often criminalised under Sharia law enactments, which prohibit, for example, “cross-dressing” or “males posing as females” (and vice versa).

Malaysia’s Federal Court has recently ruled unconstitutional criminalising provisions in Sharia criminal code enactments in the states of Selangor and Kelantan. This was on the basis that the state legislature did not have the power to adopt them, as the primary power to legislate criminal law lies with Parliament. This principle has wider application to state enacted Sharia criminal provisions.

There is evidence of the law being enforced in recent years. Since the 2018 election a crackdown on the LGBT community has been underway, with several reports of arrest, prosecution, and the imposition of corporal punishment. A high-profile case saw a prominent transgender woman flee the country in 2021 following threats of arrest against her based upon her gender identity.

There have been consistent reports of discrimination and violence against LGBT people in recent years, with transgender people being particularly vulnerable to physical and verbal abuse.

2024

In February, the Federal Court declared unconstitutional various sections of the Kelantan Sharia Criminal Code (I) Enactment 2019, including the provision criminalising “sodomy” and other sexual offences that proscribed “sexual intercourse against the order of nature”. The basis of the challenge was that the state legislature did not have the power to enact the challenged provisions. The court held that the offences could apply equally to non-Muslims and Muslims. As such, they were not “religious” offences that the state has power to legislate on and their enactment was accordingly unconstitutional.

2023 

In September, the Court of Appeal restored a ban on the book Gay is OK!: A Christian Perspective, which had been quashed by the High Court in a 2022 judgment. The book, authored by Malaysian writer Ngeo Boon Lin, was originally banned by the Home Ministry on the grounds of preserving public order, morality and public interest. The Court of Appeal agreed with the government, stating that freedom of expression may be restricted if necessary for reasons such as public order or morality.

2021 

In January, the Deputy Minister in the Prime Minister’s Department (Religious Affairs), Ahmad Marzuk Shaary,  suggested that stricter penalties could be imposed on LGBT people, arguing that the current punishments are not harsh enough. The Minister stated that he believed it is necessary to amend the Syariah Courts (Criminal Jurisdiction) Act 1965, which limits the sentences the Sharia courts can impose, to empower them to impose stricter punishments. The Deputy Minister further noted that all state religious enforcement agencies have been instructed to take against LGBT people who don’t “behave accordingly”.

In February, a gay man won a landmark court challenge following his arrest and prosecution under section 28 of the Syariah Criminal Offences Enactment 1995 in the state of Selangor, which criminalised “sexual intercourse against the order of nature”. The Federal Court ruled that the state did not have the power to enact the law, holding that the primary power to legislate criminal law lays with Parliament.

Numan Afifi, Pelangi Campaign, 2021

In June, a government taskforce proposed amendments to Sharia law that would allow action to be taken against social media users for insulting Islam and “promoting the LGBT lifestyle”. The proposal was in response to social media posts celebrating pride month.

2014

In November, Malaysia’s Court of Appeal declared a Sharia law provision in the state of Negeri Sembilan, which criminalised “cross-dressing”, as  unconstitutional.  The Court found that section 66 of the Syariah Criminal Enactment 1992 (Negeri Sembilan) breached various rights as guaranteed by the Malaysian Federal Constitution.

However, this landmark decision was overturned by the Federal Court in 2015 on a technicality, citing improper procedures used to challenge the enactment and without considering the substance of the constitutional challenge. In July 2020, the Federal Court dismissed the claimants’ application to appeal, also on procedural grounds.

2023

In November, local media reported that the Johor government announced plans to establish conversion therapy centres to “rehabilitate” LGBT people, and stated that these would be fully operational by July 2024. The Malaysian Queer advocacy group, Justice for Sisters likened these plans to torture, and raised concerns about the potential violation of human rights as guaranteed by Malaysia’s Federal Constitution.

2022

In October, Islamic religious police raided a Queer Halloween party in Kuala Lumpur, arresting at least 20 LGBT individuals for “cross-dressing” and “encouraging vice”. Officials report that the arrests were made under the Syariah Criminal Offences (Federal Territories) Act 1997. Reports suggested that 40 religious officers entered the venue, which held approximately 1,000 participants. Following the raid, Assistant Police Commissioner Noor Dellhan Yahaya vowed to “step up operations and inspections on clubs”.

2021

In February, the Minister for Islamic Affairs called for action to be taken against a prominent transgender entrepreneur, who posted pictures of herself in women’s clothing at a religious event. After she failed to appear in court, Selangor state issued a warrant for her arrest and announced that it was deploying 122 religious affairs officers to detain her. The woman was later revealed to have fled to Thailand where she was granted asylum, despite Malaysian authorities seeking her extradition. Malaysian authorities insisted efforts to return her to Malaysia were not intended to “punish”, but rather to “educate” her.

2019

The US Department of State Country Report on Human Rights Practices noted that in November, the Selangor state Sharia court sentenced five men to six to seven months’ imprisonment, six strokes of the cane, and a fine for “attempting to have intercourse against the order of nature”. One of the accused challenged the power to do so, resulting in the Federal Court invalidating the state Sharia enactment that criminalised same-sex sexual intimacy (see Law and Legal Developments, above).

2018

In May, then opposition leader and current Prime Minister Anwar Ibrahim was released from detention after receiving a royal pardon for same-sex sexual conduct, a charge he denied and one viewed internationally as politically motivated. Ibrahim had been in prison since 2015.

Following the new government coming into power in May, a serious crackdown on the LGBT community began, and reports of arrests and assaults of LGBT people increased. In August, an LGBT venue was raided and twenty men were arrested. In the same week, a Sharia court in Terengganu state ordered a lesbian couple to be caned, after they were found having sex in a car. This was the first time in years that such a punishment had been handed down.

2015

In June, a Sharia court in the state of Kelantan convicted nine transgender women under section 7 of the Sharia Criminal Code 1985 which prohibited “a male person posing as a woman”. All of the women received fines, and two were sentenced to jail terms of two months.

2023

The Malaysian Prime Minister Anwar Ibrahim stated that his government would never recognise LGBT rights. It has been suggested that Ibrahim is under pressure from Islamic groups and the opposition bloc to adopt a strict interpretation of Sharia law. Others have suggested that this stance stems from a desire to remove doubts surrounding Ibrahim’s own sexuality. Justice for Sisters stated that these comments encourage discrimination and violence against LGBT people.

In May, the Malaysian government confiscated rainbow-coloured watches produced by Swiss watchmaker Swatch during raids, due to fear of “promoting” LGBT .

2022

A report released by Human Rights Watch and Justice for Sisters examined how government-funded conversion practices contributes to the discrimination and violence faced by LGBT people in Malaysia. State religious “retreats” known as mukhayyam are targeted at Muslim LGBT people to “cure” them of their sexuality.

According to the 2022 US Department of State Country Report on Human Rights Practices, at least 1733 persons had attended these “rehabilitation programmes” as of June 2021. These reports have consistently reported discrimination faced by LGBT people in employment, housing, and access to services on the basis of their sexuality. They have also consistently found that imprisoned transgender women serve their sentences in male prisons.

2018

According to the 2018 US Department of State Country Report on Human Rights Practices, a survey by a local transgender group found that more than two-thirds of transgender women experienced some form of physical or emotional abuse.

2015

In September, Nisha Ayub, a prominent and internationally recognised transgender rights activist, was assaulted in by two men with iron rods by her house.

2013

In February, an estimated 16,000 parents and teachers attended a seminar on how to curb LGBT behaviour that took place in Politeknik Seberang Prai. After opening the seminar, Malaysia’s then Deputy Education Minister told a press conference: “[homosexuality] is like a disease but it can be cured with early intervention.”

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