👺Annex 2: Criminalization of LGBTQ and gender-diverse people in Malaysia

The criminalization of LGBTQ and gender-diverse people can be classified into 3 categories:

1. Laws that criminalize LGBTQ and gender-diverse people based on sexual orientation, gender identity, and gender expression (SOGIE) or consensual sex between adults

2. Laws that are disproportionately used against LGBTQ and gender-diverse people

3. Other legal barriers

Laws that criminalize LGBTQ and gender-diverse people based on sexual orientation, gender identity, and gender expression (SOGIE) or consensual sex between adults

Federal laws

• Sections 377 A & B of the Penal Code criminalize carnal intercourse between consenting adults of any gender. It carries mandatory whipping and a maximum of 20 years of imprisonment.

• Section 377D, which penalizes gross indecency, has been used in cases of political extortions based on actual or perceived sexual orientation.

State Syariah laws

• Musahaqah criminalizes sexual relations between women. Musahaqah is criminalized in 13 states except Pahang.

• Attempt of musahaqah is criminalized in Kelantan.

• Liwat criminalizes sexual relations between men. Liwat is criminalized in 10 states except for Pahang, Perak, and Terengganu.

• Attempt to liwat is criminalized in 3 states - Melaka, Kelantan and Terengganu.

• Male person posing as a woman criminalizes trans women and gender-diverse people based on gender expression and gender identity in all 14 states in Malaysia.

• Female person posing as a man criminalizes trans men and gender-diverse people based on gender expression and gender identity in 6 states in Malaysia - Sabah, Perlis, Pahang, Negeri Sembilan, Kelantan, and Terengganu.

• Sex against the order of nature is criminalized in 4 states in Malaysia - Selangor, Sabah, Melaka, and Negeri Sembilan.

• Sexual relations between persons of the same gender in criminalized in Selangor.

• Changing gender is criminalized in Kelantan.

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Note: All sex against the order of nature and liwat laws are null and void following the Federal Court decision in the Iki Putra and Nik Elin cases, which affirmed that the enactment of those laws is beyond the state legal assemblies’ legal competency or jurisdiction.

Laws that are disproportionately used against LGBTQ and gender-diverse people

Federal laws

• Various provisions in the Dangerous Drugs Act are often used to raid LGBTQ-friendly clubs, saunas, and other establishments, events or activities

• Section 372B of the Penal Code criminalizes sex work or solicitation of sex for prostitution.

• Section 7 of the Printing Presses and Publication Act to censor LGBTQ-themed books and other items with any form of an imprint, including watches.

• Section 233 of the Communication and Multimedia Act has been used to prosecute LGBTQ-related content creators.

• Section 9(5) of the Peaceful Assembly Act has been consistently used to investigate organizers’ of LGBTQ-inclusive public assemblies.

• Section 21 of the Minor Offences Act, which penalizes drunkenness and disorderly behaviour in public places, has been used in the past against trans women based on gender expression and gender identity and alleged sex work.

State Syariah laws

• Encouraging vice has been used in a range of contexts, including against trans women for alleged sex work, and event organizers for events inclusive of or attended by LGBTQ people.

• Insulting religion has been used to prosecute trans women based on gender identity and gender expression, and restrict LGBTQ-inclusive religious discourse building.

• Other gendered laws, such as failure to perform Friday prayers, have been used against trans women.

Other legal barriers

• Change of name and gender markers are not allowed.

• Fatwas concerning LGBTQ persons have adverse impact specifically on self-determination, access to healthcare, and the right to live with dignity. Some key fatwas concerning transgender and gender-diverse persons that have been discussed by the Fatwa Committee of the National Council for Islamic Affairs are:

  • Gender affirmation surgery (1982). This fatwa declares trans people as haram or illegal and prohibits gender-affirmation surgeries

  • Position of transgender persons (1983 and 1989). This fatwa declared trans people as haram or illegal.

  • Ruling on national Identity Cards. This has only gazetted in Selangor.

  • Fatwa on pengkid (trans-masculine identity). At least seven states in Malaysia have declared pengkid as haram in their state gazette – Johor, Kedah, Perak, Melaka, Kuala Lumpur, Pulau Pinang, and Terengganu.

  • Other fatwas include the prohibition to organize and participate in MSM-related events (Pahang, unclear if gazetted). There are also fatwas issued against COMANGO for supporting the human rights of LGBTQ persons among other things. (Pahang, unclear if gazetted).