In May 2018, Malaysia saw its first change of government since independence.
In its election manifesto, the new government promised to abolish oppressive laws and make Malaysia’s human rights “respected by the world”.
However, little has been done to address the issue of sexual orientation and gender identity.
Article 8 of the Constitution protects the right to equality before the law for all citizens regardless of religion, race, descent, place of birth, or gender. Sexual orientation and gender identity are not included in this list.
The Malaysia Penal Code does not specifically refer to homosexuality but deals with actions that go against the ‘order of nature’. Article 337A of the Penal Code, states: ‘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.
Article 377B of the Penal Code, states: ‘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 punished with whipping.
As noted in the US Department of State’s human rights report for 2019 (USSD Report 2019) published in March 2020: “Authorities often charged transgender persons with “indecent behaviour” and “importuning for immoral purposes” in public. Those convicted of a first offense faced a maximum fine of RM25 ($6.25) and a maximum sentence of 14 days in jail. The sentences for subsequent convictions are fines of up to RM100 ($25) and up to three months in jail.”
Malaysia has 13 states and 3 federal territories. All have state-enacted Islamic laws that prohibit same-sex relations and criminalise trans women based on their gender identity and gender expression, while some criminalise trans men. Malaysia is one of the few countries in the world that locks people up simply for being transgender.
Several sources noted that in August 2018 the country’s oldest gay bar, the Blue Boy club, had been raided. Twenty men were detained and ordered into counselling for illicit behaviour.
Several sources reported that in August 2018 a sharia court ordered a lesbian couple to be caned after they were caught having sex in their car.
Several sources reported in November 2019 that 5 men were sentenced to jail, fines and caning by the Selangor Syariah High Court for attempted sexual intercourse following a 2018 raid on an apartment. Four of the
5 men were caned and released pending appeal of their jail sentence and the fifth was hoping to appeal his entire sentence. A further 6 individuals were due to face trial on the same charges.
The Asia Pacific Transgender network report of 2017 noted that: “Trans people in Malaysia face systemic and widespread stigma and human rights violations. Muslim trans people are subject to arrests, harassment and assault from federal, state, and local Islamic religious authorities, and often avoid reporting these incidents for fear that the police will not protect them.”
If you have a well-founded fear of persecution due to your gender identity or sexual orientation in Malaysia, you may be eligible for a Protection visa (subclass 866).
The first requirement states that you must fear persecution for at least one of five reasons specified in the Act:
- Membership of a particular social group (PSG)
- Political Opinion
LGBTI persons in Malaysia form a particular social group (PSG), within the meaning of the Refugee Convention because they share an innate characteristic or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it, and have a distinct identity which is perceived as being different by the surrounding society.
Although LGBTI persons in Malaysia form a PSG, establishing such membership may not be sufficient to be recognised as a refugee.
Our Immigration Lawyers can help you with your Onshore Protection Visa. Most of our LGBTI protection visa clients are international students and tourists who fear to return to their home country and would like to stay in Australia permanently. We have a proven success record in assisting nationals of Malaysia.
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