Sexual Rights for All Malaysians
The Government of Malaysia
part of the campaign "29 Ways Towards an LGBTIQ-Friendly Malaysia"
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We, the undersigned, call upon the Malaysian government to uphold the human rights of each and every Malaysian citizen, irrespective of gender identity and sexual orientation. Policing of expressions of gender identity and sexual orientation through legal, coercive, and violent means must stop. These expressions include our choice of name, our choice of dressing, how we may walk and talk, the way we wear our hair, the decisions we make over our own bodies, our choice of domicile, our choice of sexual partners, and so on. While we understand that some people disapprove of certain sexual acts or gender expressions, we believe that these are essentially matters of personal conscience, and it should be left to the persons concerned to decide for themselves. It is not the State's role to play moral guardian to the people nor to dictate how they should express their gender and sexuality.
The Malaysian government has a responsibility to ensure that all state and non-state actors do not perpetuate nor endorse stigma, discrimination, violence, and persecution towards any one person based on their gender identity or sexual orientation. This responsibility is clearly articulated as the States obligations under the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC).
Gender identity and sexual orientation are identity issues which are well-articulated and protected under sexual rights. The Malaysian government ought to recognise that gender identity, gender expression, and sexual orientation are integral to every persons 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. Currently, the Malaysian government offers absolutely no protection for this freedom, and instead chooses to instigate, perpetuate, condone, and endorse discrimination. The following recommendations to the Malaysian government are made within this context and understanding of our sexual rights as an integral aspect of our human rights.
We, the undersigned, strongly call on the Malaysian government, to:
1.Take a public and official human rights stand and issue a statement that it will respect, protect, and promote the human rights of all Malaysians in relation to gender identity and sexual orientation, and irrespective of religious beliefs.
2.Expand the understanding and definition of non-discrimination on the basis of gender in Article 8(2) of the Federal Constitution to include non-discrimination on the basis of gender identity and sexual orientation. It is essential that the Malaysian government recognise and promote the acceptance and understanding of equality of all persons under the law.
3.Educate judicial officers (both civil and Syariah, and including judges, lawyers, and prosecutors), police officers, Islamic religious affairs department officers, and state authorities on the rights to equality and non-discrimination. Ensure that all of its agencies and public actors in all sectors (education, employment, health, armed forces, etc.) do not themselves perpetuate stigma, discrimination, violence, and arbitrary prosecution.
4.Enforce the law against all state and non-state actors and make them accountable for their vigilantism against those whose gender identity or sexual orientation is perceived to deviate from heteronormative standards.
5.Condemn threats of violence and murder in the name of any culture or religion against any person based on gender identity and sexual orientation, and ensure that there are effective remedies and means for redress for all who are victimised and persecuted.
6.Provide effective redress for violence perpetuated by police personnel, religious authorities, family members, and any other institution or members of the general public against any person based on their perceived gender identity or sexual orientation.
7.Take legal action in situations where private or public institutions, through their own policies and practices, have promoted and encouraged stigma, discrimination, violence, and the persecution of any minority community on the basis of gender identity, gender expression, or sexual orientation. This includes actors like the media and private institutions that have discriminatory policies for hiring and firing personnel (e.g., dictating forms of behaviour and dressing to conform to heteronormative gender roles); institutions of learning that target transgenders, effeminate men, and masculine women and compel them to undergo camps or any other form of rehabilitation. Actions that intentionally or unintentionally result in targeting girls with unwanted pregnancies, and women and girls who engage in same-sex relationships, in ways that would increase their isolation from others and which would not foster greater understanding and integration within society should also be ended.
8.Review and expand the scope of rape laws to include the rape of lesbians, gay men, and transgenders.
9.Repeal all laws including Syariah state laws in Malaysia that target stigma, discrimination, and persecution on the basis of an individuals gender identity, gender expression, and/or sexual orientation. This should also include all laws that criminalise cross-dressing in any form or manner. Under Syariah states laws, these are laws on Men posing as women or Men impersonating women, Women posing as men or Women impersonating men, as well as laws on lesbianism (musahaqah) and sodomy (liwat). Under the Malaysian Minor Offences Act 1955, this is Section 21.
10.Repeal all laws that can and do outlaw and criminalise mutually consensual sexual activity between adults (under both civil and Syariah laws). Under the Malaysian Penal Code, this would be laws under Section 377 and under Syariah state laws, this would be all laws pertaining to khalwat (being in close proximity with a person of the opposite sex who is not a relation) and zina (adultery). This includes dismantling all State institutions or initiatives that were established with the purpose of regulating and monitoring people's sexual or moral behaviour in consensual situations. We stress that this issue is a larger one than that of gay rights. The laws on sodomy and fellatio, for example, means that heterosexuals who engage in these practices can also be targeted, not just homosexuals. And whether or not one is directly affected by these laws, the fact that the State is violating the human rights of many citizens on the grounds of sexual and moral misconduct should be of concern to all who support social justice.
11.Repeal all laws that criminalise soliciting (Section 372B of the Malaysian Penal Code) and instead, put in place effective laws that criminalise trafficking of persons and exploitation and profiteering of persons who have been coerced into sex work.
12.Expand the Domestic Violence Act which was enacted in 1994 to include same-sex partnerships. Individuals who are in same-sex relationships that are violent have no legal recourse if the Domestic Violence Act is not expanded to include them.
13.Ensure that sex education in schools are scientifically factual and free from moral judgement and religious beliefs. Girls who are still schooling and found to be pregnant should not be sent to separate schools, but should be allowed to continue to remain in the same schools and it is the responsibility of the teachers to ensure that they do not face stigma and discrimination. Parents should be encouraged to discuss sex with their children and to be supported by parents who have been able to do so with openness and non-judgement. Factual sex education has been proven to be effective in delaying young peoples decision to have sex, and getting them to practise safer sex.
14.Develop positive public service messages on the issues of lesbians, gays, bisexuals, transgenders, intersexed, and queer people (LGBTIQ) that promote their human rights and disseminate these as frequently as possible including during primetime telecast, through specially allotted programming slots on both public and private media stations.
15.Publish, translate, and widely disseminate the full report and research findings of Projek Kasturi so that a larger proportion of Malaysian society will be better able to understand the issues faced by lesbians, bisexuals, gays, and transgendered people.
16.Officially recognise transwomen and transmen as legitimate identities by establishing an enabling environment through policies and laws for their socio-economic and political advancement. By giving official recognition to transgenders, they will have better access to essential services, such as healthcare, low-cost housing, and bank loans. Their rights to education and employment would also be better served and protected. Useful statistics can be collected on healthcare needs for both transgenders (male-to-female and female-to-male) as these needs would be very different. In addition, the Malaysian government should ensure the inclusion of transgenders in all decision-making processes with regard to policies, laws, programmes, and services that will affect their lives. An official, independent consultative committee with at least 50\% to 75\% of its members composed of transgenders should be formed to ensure continuous consultation.