⏹️Barriers to Accessing Justice & Remedies

Despite the numerous human rights violations they face on a day-to-day basis, LGBTQIA+ people in Malaysia face significant barriers to accessing justice and remedies. This section of the toolkit explores the obstacles that prevent them from coming forward about injustices they have faced.

Criminalisation and discriminatory regulations

The criminalisation and regulation against LGBTQ people compound the human rights violations they face in several ways. It can expose them to legal prosecution in the process of seeking essential services, justice, and redress. This fear of further discrimination is magnified when LGBTQIA+ people when the perpetrators are state actors.

A 2021 report found that 59% of 220 LGBTQIA+ respondents felt uncomfortable reporting cases of discrimination and violence to government agencies, the primary factor being a lack of trust (73%). This vulnerability to legal prosecution significantly hampers their ability to lodge complaints and access justice when their rights have been violated. Consequently, LGBTQIA+ people are not only more susceptible to human rights violations but also structurally impeded from seeking justice or remedies due to the fear of legal repercussions for their SOGIE identities, which are criminalised.

Another result of criminalisation is that human rights violations against LGBTQIA+ people are under-reported. SUHAKAM’s 2018 annual report stated that they received a total of 4 complaints on discrimination, hate speech, and challenges within the criminal justice system. The low number of complaints significantly hampers efforts to monitor and evaluate human rights violations towards LGBTQIA+ people and address any systemic issues that contribute to the issue.

Lack of Legal Gender Recognition

The absence of legal gender recognition has a systemic impact on all areas of life for trans, non-binary, and intersex people, including access to redress for trans people, data collection, and data protection. For example, by and large, most forms collect personal information based on legal documents and only allow binary gender options.

Lack of Comprehensive Anti-Discrimination Protection Policies

While there are complaint mechanisms for various discrimination cases, anti-discrimination or diversity and inclusivity policies in the workplace and other places, typically do not extend to LGBTQIA+ people or include SOGIESC as protected grounds of discrimination As such, LGBTQIA+ people are reluctant to lodge complaints for fear of being outed, unfairly dismissed, or receiving differential treatment, among other reasons.

This leaves LGBTQIA+ employees uncertain about the employer’s commitment to protect their rights as workers and employers unprepared to address different types of discrimination, including those based on SOGIESC. Consequently, LGBTQIA+ people are unable to make use of the safety mechanisms provided to report harassment and discrimination in the workplace.

Low Knowledge of Complaint Mechanisms

Aside from the fear of reporting cases, a lack of familiarity with complaint mechanisms also contributes to underuse. LGBTQIA+ people are often unaware of their rights, the existence of oversight bodies and their mandates, the existence of a complaint mechanism altogether, remedies that are available to them, as well as how to lodge a report. A study found that among LGBTQIA+ people who did not report cases of violence, 30.5% did not report because they did not know how to do so.

Even when LGBTQIA+ people are aware of their rights or complaint mechanisms, another obstacle is the lack of clarity about what remedies are available to them. Due to the trust deficit between LGBTQIA+ people and government agencies, they assume that the process cannot offer them any meaningful solutions. This leads them to disregard complaint mechanisms as an option altogether.

Poor Privacy Practices

Privacy concerns are acute for LGBTQIA+ people, particularly those not openly out. LGBTQIA+ people’s privacy concerns can be intersectional. A notable risk involves the exposure of HIV status to employers or academic institutions, leading to potential job or scholarship loss.

The criminalisation of LGBTQ people and the non-recognition of trans, intersex, and non-binary people amplify fears around the collection and sharing of personal data. Moreover, the transparency of privacy measures in many complaint mechanisms is lacking. Additionally, the government of Malaysia is exempted from the Personal Data Protection Act (PDPA).

The absence of robust whistleblower protection policies in many mechanisms further discourages LGBTQIA+ people from reporting human rights abuses, particularly when state actors are implicated, due to fears of retaliation.

Case Study: “The Police Know My Address”

A gay man was subjected to arrest for a minor substance-related charge. During the arrest, the person was subjected to physical and verbal abuse because of their sexual orientation. The person declined to lodge a report with an oversight body about the abuse because the police knew their location, and they were not confident that the body’s ability to protect them in case of police retaliation against them for filing a complaint.

Key Takeaways

• Law enforcement in Malaysia is empowered to collect a large amount of personal information from people implicated in criminal cases, including their government name and home address.

• The extraction of sensitive information increases feelings of fear and mistrust towards law enforcement, discouraging affected complainants from coming forward about their experiences.

• Discriminatory legislation against LGBTQIA+ people enables law enforcement to act with impunity, and deters LGBTQIA+ people from seeking redress

What does this have to do with remedies?

• There are substantial challenges in asking people who have experienced harassment by police to report their issues to the same authorities. It is important to have an independent body to oversee law enforcement agencies.

Source

• Interview with JEJAKA, 16 January 2024

Lack of Accessibility

Most formal reporting mechanisms for human rights violations are website-based, requiring complainants to fill up a form with personal details and information about their complaint. On the surface, this is beneficial to LGBTQIA+ people as anyone can lodge a complaint as long as they have access to the internet. However, the forms themselves contain numerous elements that can restrict their usage:

• Difficulty in locating the page: Some complaint mechanisms are not listed on the main webpage of the government agency or oversight body responsible. Users have to look them up separately.

• Identity documentation requirement: Many forms require users to enter an IC or passport number, restricting people with alternative forms of documentation or people who are stateless from using the platform.

• Languages: Most complaint websites are only available in Malay or English. Complainants who do not express themselves well in these languages would have to use the services of an interpreter to access them.

Lack of Timely & Effective Remedies

LGBTQIA+ people reported feeling disinclined to use official complaint mechanisms because it was not clear what the oversight body could do, and if they could even respond in time. Due to the critical and time-sensitive nature of certain cases, many did not feel that the complaints mechanism would benefit their situation at all.

It is not enough to have a complaint mechanism and system of response; the remedy must be provided in a timely manner, and the response must be proportionate to the level of harm caused. Delays in responding to complaints can adversely impact the complainant and their case.