Malaysia LGBT Laws

Aslyum, Immigration, Migration, Refugees Legislation/Cases/References
1. National

On 21 September 2017, it was reported that the Immigration Department announced a ban on the organisers and anyone planning to participate in a ”gay party” planned for 30 September in a club at the heart of the capital city Kuala Lumpur [R1.1].

R1.1 MalayMailOnline: Entry ban on gays tenuous, say lawyers 24 SEP 17
Censorship, Free Speech, Right of Assembly Legislation/Cases/References
1. National

On 13 November 2018, it was reported that Bohemian Rhapsody, the biographical film about Queen and its frontman Freddie Mercury, had been censored by cutting 24 minutes from the biopic due to the country’s strict anti-homosexuality laws [R1.2].

On 21 September 2017, it was reported that the Immigration Department announced a ban on the organisers and anyone planning to participate in a ”gay party” planned for 30 September in a club at the heart of the capital city Kuala Lumpur [R1.1].

2. Courts & Tribunals

On 19 August 2013, Court of Appeal justices Clement Allan Skinner, Mohamad Ariff Mohamad Yusof and David Wong Dak Wah upheld the decision of High Court Judge Rohana Yusuf – finding that the police ban on the annual LGBT Seksualiti Merdeka festival in 2011 was lawful – but say the ban on the event was only for that year [R2.2].

On 01 March 2012, Judge Rohana Yusuf of the High Court in Kuala Lumpur upheld the 2011 police ban on Seksualiti Merdeka, an annual sexuality rights festival, concluding that “The police are empowered under Section 27 of the Police Act to stop an event for investigation purposes.” [R2.1].

R1.2 Independent: Bohemian Rhapsody faces censorship in Malaysia due to anti-homosexuality laws 13 NOV 18
R1.1 MalayMailOnline: Entry ban on gays tenuous, say lawyers 24 SEP 17
R2.2 GayStarNews: Ban on Malaysia’s LGBT festival upheld by Appeals Court 22 AUG 13
R2.1 IGLHRC: Malaysian Court Upholds Ban on Sexuality Rights Festival, “Seksualiti Merdeka” 09 MAR 12
Gender Identity, Intersex,
Transgender, Transexual
1. National

On 30 March 2018 it was reported that Election Academy registrar Nik Aminudin Nik Shahar Shah said transgender men and women can still vote in the general election, although the gender listed in their identity cards (IC) does not match their appearance, although the clerks on duty at the polling place may face difficulties in verifying the person’s identity [R1.4].

In August 2001, transsexualism is against Islamic teachings and men who have sex-change operations will not be recognised as female [R1.3].

In February 2001, the government was requested to recognize transsexual men as women [R1.2].

On 01 June 1993, the Syariah Criminal (Negeri Sembilan) Enactment 1992 provides:

Part IV – Offences. Section 66. Male person posing as a woman.

Any male person who, in any public place wears a woman[‘s] attire and poses as a woman shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both [L1.1].

2. Courts & Tribunals

On 05 January 2017, the three-member panel of the Court of Appeal chaired by Datuk Seri Zakaria Sam with justices Datuk Ahmadi Asnawi and Datuk Hasnah Mohammed Hashim, allowed the appeal by the Director-General of the National Registration Department and set aside the 18 July 2016 High Court order which allowed a 30-year-old woman who underwent gender replacement surgery to be declared a man and to change the last digit of her identity card to reflect the male gender [R2.16]. See below.

On 18 July 2016, the Kuala Lumpur High Court ordered that the National Registration Department (NRD) update a trans man’s information on his identity card to better reflect his gender identity and chosen name [C2.15], [R2.14].

On 08 October 2015, the 5-judge Federal Court overturned a ruling by the Court of Appeals that found a provision of the Sharia code of the state of Negeri Sembilan used to arrest transgender women was unconstitutional. The decision was based on procedural grounds, the Court ruling that the case should have been brought in the Federal Court as it concerned the constitution [R2.13].

On 22 June 2015, the Human Rights Watch was reported to have said that an Islamic court in Malaysia convicted nine transgender women from the northeastern state of Kelantan of violating laws that prohibit “a male person posing as a woman”. All women were fined and two received a jail sentence but were released on bail pending an appeal [R2.12].

On 19 June 2015, High Court Judge Datuk Asmabi Mohamad dismissed the application of m2f transgender Vasudevan Ramoo for an order that the National Registration Department change his identity card details to reflect his new gender status as a woman, citing the Court of Appeal’s 2013 decision in the Kristie Chan v National Registration Department Director-general case, which adopted the position in UK case Corbett v Corbett (1970) and the UK case Bellinger v Bellinger (2003) [R2.11].

On 02 January 2015, Justices Datuk Mohd Hishamudin Yunus, Datuk Aziah Ali and Datuk Lim Yee Lan in the Court of Appeal released their full judgment in favour of three Muslim transgenders Muhamad Juzaili Mohd Khamis, Shukur Jani and Wan Fairol Wan Ismail who were convicted of cross-dressing under Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992 that punishes Muslim men who wear women’s attire with a fine not exceeding RM1,000, or jail of not more than six months, or both. The Court ruled that the framers of the Federal Constitution had confined the word “Islam” in Article 3 – which says that Islam is the religion of the Federation – to the areas of marriage, divorce and inheritance law. The Negri Sembilan state government has applied for leave to appeal the Court of Appeal’s decision [C2.10], [R2.9].

On 07 November 2014, Judge Mohamad Yunus in the High Court in Seremban overturned a law that bans Muslim transgender women from wearing female clothing in Negeri Sembilan, saying it was ‘degrading, oppressive and inhumane’. The landmark ruling that could trigger similar challenges in other states [C2.8], [R2.7].

On 11 October 2012, Judge Datuk Siti Mariah Ahmad in the Negeri Sembilan High Court dismissed a challenge by Adam Shazrul Bin Mohammad Yusoff, Mohammad Juzaili Bin Mohammad Khamis, Shukur Bin Jani and Wan Fairol Bin Wan Ismail to a law barring Muslim men from dressing or posing as women, prompting concern that more transgender people in the Muslim-majority country may be prosecuted [D2.6], [R2.5].

On 05 October 2012, the Court of Appeal unanimously dismissed without costs an application by Miss C, a 35-year old transsexual to review a High Court decision rejecting her application to have her gender changed from male to female on her MyKad. The quorum chairman Justice Datuk Abdul Wahab Patail said Malaysian medical reports were needed to support the Malaysian application rather than reports from Hong Kong and Thailand [R2.4].

On 30 August 2012, the high court in Seremban heard the case of Juzaili Khamis, 24, Shukor Jani, 25, Wan Fairol Wan Ismail, 27, and Adam Shazrul Yusoff, 25, four trans women challenging the Section 66 of the Syariah Criminal Enactment, which forbids them from behaving and dressing like women, in contradiction of the federal constitution, which states that: “no person shall be deprived of his life or personal liberty”, bars discrimination on the grounds “of religion, race, descent, place of birth or gender” and protects freedom of expression [R2.3].

On 19 July 2011, the High Court in Eastern Terengganu reportedly ruled that Ashraf Hafiz, a 25-year-old transgender individual who underwent male-to-female gender transition surgery, was not entitled to a change of sex on her national identity card. The court opined that a person’s sex is determined at birth and cannot be changed. Daily Pak Banker (Pakistan) [R2.2].

On 07 January 2011, High Court Judicial Commissioner Ridwan Ibrahim rejected an application by a post-operative transgender female to compel the National Registration Department (NRD) to alter the gender field on her identity card [R2.1].

In 2005, (reportedly) Judge (Datuk) V.T. Singham said the court had no power to make such a declaration but in another case presided by Datuk James Wong, the court allowed an application to change the gender in the person’s identity card [R2.1].

R1.4 TheStar: Transgender voters can vote in GE14 30 MAR 18
R1.3 Sydney Xpress News: No Female Status for Trannies 02 AUG 01
R1.2 The Advocate: Malaysian Government Considers Counting Transsexuals as They Identify 27 FEB 01
R1.1 Syariah Criminal (Negeri Sembilan) Enactment 1992 (Accessed 15 OCT 12)
2. Courts & Tribunals
R2.16 TheSunDaily: Court of appeal overturns ruling on sex change case 05 JAN 16
C2.15 Grounds for Judgment: Tan v. Ketua Pengarah Jabatan Pendaftaran Negara 24NCVC-1306-08/2015 PDF 2.10MB 18 JUL 16
R2.14 ILGA LGBulleTIn #59 – Three weeks in LGBTI news (August 5-25, 2016) 23 AUG 16
R2.13 BuzzFeed: Malaysian Court Reverses Transgender Legal Victory 08 OCT 15
R2.12 InternationalBusinessTimes: Malaysian Court Convicts 9 Transgender Women, LGBT Groups Slam Decision 22 JUN 1q5
R2.11 MalayMailOnline: Transgender fails court bid to change identity to woman, judge says ‘hands tied’ 19 JUN 15
C2.10 Full Judgment: Muhamad Juzailu Bin Mohd Khamis, et al. v. State Government of Negeri Sembilan, et al. No. N-01-498-11/2-12 02 PDF 3.11MB, 02 JAN 15
R2.9 MalayMailOnline: Islamic law restricted to familial matters, Court of Appeal says in transgender case 21 JAN 15
C2.8 Brief Judgment of the Court: Muhamad Juzailu Bin Mohd Khamis, et al. v. State Government of Negeri Sembilan, et al. No. N-01-498-11/2012 PDF 1.93MB, 07 NOV 14
R2.7 GayStarNews: Malaysia court scraps cross-dressing ban 07 NOV 14
D2.6 EqualRightsTrust: The Equal Rights Trust Legal Brief For Kanalesingam PDF 488.74kb, 06 JUL 12
R2.5 The New York Times: Malaysian Court Rejects Challenge to Cross-Dressing Ban 11 OCT 12
R2.4 The Sun Daily: Court of Appeal dismisses application by transsexual for MyKad change 05 OCT 12
R2.3 PinkNews: Malaysia: Court case challenges trans “discrimination” law 31 AUG 12
R2.2 Lesbian / Gay Law Notes: International Notes PDF 487.30kb, SEP 11 at 193
R2.1 fridæ: Malaysian transsexual to appeal court decision 10 JAN 11
HIV Aids Legislation/Cases/References
1. National

In March 1998, the Immigration Department was reported to have sent home 1,030 legal foreign workers because they tested positive for HIV, hepatitis, tuberculosis or venereal disease [R1.1].

R1.1 Capital Q: Malaysia Deports Positive Workers 27 MAR 98
Homosexuality, Sodomy Legislation/Cases/References
1. National

The law in Malaysia prohibits consensual sex between same-sex couples

Penal Code (Act No. 574) (Consolidated Version with amendments as of November 15, 1998) provides –

Unnatural Offences Section 377A Carnal intercourse against the order of nature

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. (Explanation: Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section).

Section 377B Punishment for committing carnal intercourse against the order of nature

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 377C Committing carnal intercourse against the order of nature without consent, etc.

Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.

Section 377D Outrages on decency

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.

Islamic Sharia Laws

Several states in Malaysia have instated Islamic Sharia laws, applying to male and female muslims, criminalizing homosexual and lesbian acts with up to three years imprisonment and whipping. The Sharia Penal law in the Malaysian state of Syriah prescribes penalties for sodomy (Liwat) and lesbian relations (Musahaqat) with fines of RM5,000.00, three years imprisonment and 6 lashes of the whip. All these penalties can be combined [R1.4].

In November 2000, it was reported that over 100 Malaysian men were arrested by the Islamic Affairs Department’s morality police for “attempting to commit homosexual acts” last year in Kuala Lumpur [R1.3].

In June 1999, Malaysian leaders have vehemently rejected a call to scrap the country’s law prohibiting sexual acts between males [R1.2].

In November 1998, a group called the People’s Voluntary Anti-Homosexual Movement (Pasrah) expressed a hope to “wipe out” gays, calling for severe penalties for gay sex and the closure of gay nightclubs [R1.1].

2. Courts & Tribunals

On 03 August 2018, it was reported that human rights groups deplored the caning in the Sharia High Court in the state of Terengganu of two Malaysian Muslim women, aged 22 and 32, convicted under Islamic laws of attempting to have sex, saying it could worsen discrimination against people in Malaysia’s lesbian, bisexual, gay and transgender community [R2.7].

On 28 August 2018, it was reported that the two women who were fined and ordered to be caned after they pleaded guilty to having same-sex relations have had their sentence postponed to 03 September due to ”technical reaasons” [R2.6].

On 15 August 2018, it was reported that Saiful Bahri Mamat, the state exco chairman for syariah implementation, education and higher education said the Syariah High Court’s decision to fine and cane two women who pleaded guilty to having same-sex relations in a car here is final, and no one should interfere in the matter. The sentence will be carried out on 28 August [R2.5].

On 14 August 2018, it was reported that Shariah judge Kamalruazmi Ismail in the Shariah High Court in Terengganu sentenced two women, aged 32 and 22, who pleaded guilty to having consensual sex, to six strokes of the cane and a 3,300 ringgit (£632) fine [R2.4].

On 08 November 2017, Justice Datin Azizah Nawawi in the High Court allowed the government’s application to strike out former Opposition leader Datuk Seri Anwar Ibrahim’s originating summons and ruled that the plaintiff’s case relating to his conviction for sodomising his former aide Mohd Saiful Bukhari Azlan was groundless and without any supporting evidence [R2.3].

On 07 March 2014, Appeals Court Judge Balia Yusof Wahi ruled that the lower court’s decision to acquit former Deputy Prime Minister 66-year old Anwar Ibrahim of sodomy charges was wrong, sentencing him to five years in jail [R2.2].

In October 2008, a National Fatwa Council ruling banned lesbian sex or other “masculine” activities for female Muslims [R2.1].

R1.4 ILGA: State-Sponsored Homophobia PDF 382.87kb, May 2008
R1.3 Capital Q: Morality Cops Target Gays 10 NOV 00
R1.2 The Australian: Malaysia Rejects Call to Scrap Gay Sex Law 14 JUN 99
R1.1 Capital Q: Malaysian Plan to “Wipe Out” Gays 06 NOV 98
2. Courts & Tribunals
R2.7 SFgate: Malaysian lawmakers, activists assail public caning of Muslim lesbian couple 03 SEP 18
R2.6 TheStar: Court postpones caning of Terengganu lesbian sex case 28 AUG 18
R2.5 TheStar: Syariah Court’s judgement against lesbian couple is final 16 AUG 18
R2.4 Reuters: Outcry in Malaysia over two women sentenced to caning for lesbian sex 14 AUG 18
R2.3 TheMalayMailOnline: Court dismisses Anwar’s lawsuit against govt 08 NOV 17
R2.2 PinkNews: Malaysia: Ex-Deputy Prime Minister jailed for five years on sodomy charges 07 MAR 14
R2.1 Malaysia’s Mulsims Ban Lesbian Sex and Other “Masculine Behaviour”” 24 OCT 08