Malaysian man wins landmark challenge against Muslim gay sex ban
Protesters step on a banner during a protest against a concert by American Musician, Adam Lambert outside its venue on 14 October 2010 in Kuala Lumpur, Malaysia. (Photo by Syamsul Bahri Muhammad/Getty Images)
A man from Malaysia has won a landmark ruling against an Islamic gay sex ban, raising hopes for greater LGBT+ rights in the country.
The Muslim man – whose name has been withheld by his lawyer to protect his identity – filed the lawsuit after he was arrested in the central Selangor state of Malaysia in 2018 for attempting gay sex. He denied the allegation.
Same-sex acts are illegal in Malaysia, although convictions are rare. All 13 states and the federal territory in Malaysia criminalise same-sex relations and gender nonconformity. The federal penal code also punishes any form of anal or oral sex with up to 20 years in prison and mandatory caning.
In an unanimous decision, Malaysia’s top court ruled that the Islamic provision used in Selangor was unconstitutional, and authorities had no power to enact the law which bans sex “against the order of nature”.
The nine-judge panel ruled Selangor’s enactment of the anti-gay law was ultra vires, or beyond the state’s power, because under Malaysia’s constitution only the federal government may legislate some aspects of criminal law.
‘One small, but significant step forward’
The Human Rights Watch (HRW) said in a statement the federal court’s ruling is “one small but significant step forward” for LGBT+ rights in Malaysia. The HRW said: “In the face of pervasive anti-LGBT+ discourse, law and policy, Malaysian activists are taking steps to whittle away at institutionalised discrimination.”
The man involved in the legal challenge was among 11 men arrested on charges of “attempting” gay sex from a 2018 raid on a private residence in Selangor. In November 2019, a court convicted five of the men and sentenced them to fines, imprisonment and six strokes of the cane each.
Malaysia’s state laws are notorious for their persecution of LGBT+ people, especially trans women
Last year, the religious affairs minister gave “full license” for Malaysian police to arrest and detain trans people. Minister Zulkifli Mohamad Al-Bakri announced on social media that he had given the religious police “full licence to carry out its enforcement actions” against transgender people in Malaysia.
He elaborated that his order goes beyond arrests, but also allows police to subject trans people to “religious education” so that they will “return to the right path”.
More recently, Malaysia’s deputy religious affairs minister proposed to increase criminal penalties against LGBT+ people. Deputy minister for religious affairs Ahmad Marzuk Shaary has proposed amendments to the Syariah Courts (Criminal Jurisdiction) Act (Act 355) which would allow state courts to enact harsher sentences for same-sex conduct than the current maximum sentence permitted under federal law.
Act 355 limits the sentences that can be imposed by Sharia courts. The current sentence under the act includes three-year imprisonment, a fine of RM5,000 (£905) and six strokes with a cane.
However, Marzuk said this punishment was “not giving much effect on the group of people”. He said: “All state religious agencies and enforcers have been instructed to take action against those [LGBT+ people] who do not behave accordingly.”
