Understanding the Laws Against Us and What We Can Do About Them
By NATHALIE KEE
Applying the law can sometimes be like using a crude and blunt tool to repair a delicate object. But, what of the situation where there is nothing to fix?
This is the case for the enforcement of laws against consensual, private acts by LGBTQ individuals. Like many laws, they affirm certain moral values, which in turn justify the existence of such laws. This creates an endless cycle—a feedback loop—that not only excuses many types of violence against LGBTQ persons, but also makes it much more difficult to change narratives, whether in the public sphere or in parliament (for civil laws) or state legislative assemblies (for Syariah laws).
This was the major underlying theme during the online discussion ‘DISKUSI: The Laws Against Us’ organised by LGBTQ communities on 11 May 2020. Moderated by Gavin Chow, it featured activists Yee Shan and Mus, and legal experts Nurul, Andi and Alicia. The speakers not only provided a comprehensive overview of the existing legal framework—both civil and Syariah—but also addressed the systemic and institutional nature of discrimination and violence against LGBTQ persons, and the practical limitations of getting legal help as a queer person in Malaysia.
The layers of discrimination
The discrimination experienced by LGBTQ persons in the legal system in Malaysia has many layers to it, but generally fall under 2 categories:
- direct; and
- indirect (systemic or institutionalised).
The legal speakers at DISKUSI did a brilliant job explaining both the types of laws that are directly discriminatory, as well as indirectly discriminatory against LGBTQ persons in Malaysia.
The information on such directly discriminatory laws are well-documented on Queer Lapis and can be read here.
The laws that indirectly, or systemically, or institutionally discriminate against LGBTQ persons, or even non-LGBTQ persons who are associated with LGBTQ persons or the community, or perceived to have LGBTQ qualities, were also a point of discussion, for example:
- Section 377A (read with 377B) of the Penal Code (criminalising both consensual and non-consensual oral and anal intercourse) being used almost exclusively against LGBTQ persons, even though cis-heterosexual people may also be charged for engaging in oral and anal sex;
- Section 5 of the Film Censorship Act 2002 (criminalising possession, custody or control of films which are obscene or against public decency) being used to ban homosexual content in films, with the exception of homosexual characters having to ‘repent’ (read: become straight), be portrayed in a negative light or befell misfortune.
Recently, 12 men were arrested and charged in November 2019 at the Selangor Syariah High Court. 9 men were charged under Section 28 of the Selangor Syariah law (criminalising consensual and non-consensual sexual intercourse against the order of nature with any man, woman or animal). The 3 other men were charged for abetment and conspiracy under the Selangor Syariah law.
Section 28 is another example of a law that, while applicable to even cisgender and heterosexual persons, is more likely, if not almost exclusively, wielded against the LGBTQ community.
Click here to read more about their case and the abuses they faced in the criminal justice system and how you can support them today.
Institutions are not people, but they run on people
During DISKUSI, a participant reflected that he has received a mix of positive and negative experiences as a transgender male lawyer.
This goes to show that institutionalised discrimination is not a numbers game. It is not a case of ‘bad apples’ spoiling the stock. An institution can be inherently discriminatory without having to reach a certain percentage of ‘discriminatory’ people.
It is heartening to note that the Malaysian courts have given the LGBTQ community cause for victory, such as the Court of Appeal’s decision in 2014 which declared that the Section 66 of the Negeri Sembilan State Syariah Criminal Enactment which criminalises males who dress or pose as women, or “cross-dress”, as being unconstitutional because they were inconsistent with Articles 5 (Right to life and personal liberties), 8 (Right to equality and non-discrimination), 9 (Right to freedom of movement) and 10 (Freedom of speech, assembly and association) of the Federal Constitution.
Yet such victories are often hard-won through many years of litigation. These positive stories are also rarely heard in personal anecdotes from many LGBTQ persons. This is because, aside from laws that discriminate against LGBT persons, there are many fears and stigmas which are almost exclusive to LGBTQ persons, that are not directly attributed to the legal system, such as the fears of:
- being outed;
- publicity in the mass media;
- being ostracized by their family and community;
- their employers finding out;
- spiritual or religious consequences.
Such fears and stigma may be strong motivating factors for queer people to plead guilty for consensual private acts, avoid seeking help and sometimes even ‘return to the right path’, just so that they can be free of the criminal justice system as soon as possible. On top of this, the lack of access to justice and information to LGBTQ persons arising from the legal system can also create huge problems.
Lack of access to justice & information
It was interesting to note the challenges and issues that activists Yee Shan and Mus respectively faced when monitoring cases in which LGBT persons were prosecuted for consensual sex acts, notably the lack of access to:
- resources and information on where to get help;
- mental health services;
- safe spaces;
- resources (e.g. shelters, counselling) relating to domestic violence.
More depressingly, they also highlighted the way the system does not encourage or facilitate access to the above, and in fact, sometimes discourages LGBT persons from getting help particularly from activist groups.
The diskusi on DISKUSI aside, it is important to remember that no two LGBTQ persons’ experience with discrimination in law and legal enforcement are the same.
From arrest to sentencing, there are various stages in which many characteristics will come into play in determining your chances of getting fair and just treatment in the criminal justice system, such as the tone of your skin and the quality of your clothes. Some LGBTQ people are also more visible than others, and that visibility can make them more prone to bullying, harassment and other forms of discrimination and violence. For example, the queerness of certain transgender women is more visible than others.
The level of access to justice can also vary from person to person. Traditionally, access to justice is understood as access to legal representation. However, in a broader sense, it also includes access to legal information, affordable legal fees,
The mental health of an LGBTQ person can be affected by whether they are able to confide in others about their experiences in the criminal justice system and whether they have family and community who will support them during the process – whether it is by giving spiritual, moral or financial support. Some LGBTQ persons are also more likely than others to be wrongfully dismissed at work if the employer finds out.
It is only by recognizing that different people can experience discrimination and violence from the enforcement of anti-LGBTQ laws, that we can begin to build our vision of a better legal framework.
What you can do
- Going to court and filing a judicial review
Unfortunately, this option is only available to those who are considered to be ‘adversely affected’ (as opposed to a stranger) by the decision of a ‘public authority’ (as opposed to a private entity). Only such persons can file a judicial review against a decision that is unconstitutional.
Judicial review can be costly for many, but there may be law firms out there who would be willing to do the job pro-bono. Law firms that are known for strategic litigation are your best bet. Note that you only have 3 months from the date of the decision to file for leave for judicial review, so you need to move fast and consult a lawyer as soon as possible.
- Amending or abolishing anti-LGBTQ laws
Only Members of Parliament or State Assembly Representatives can amend or abolish anti-LGBTQ laws. Unless you have your lawmaker on speed dial, you have to resort to other methods of persuasion. There are various ways to pressure the majority of the day to change the laws, ranging from writing for QueerLapis (starting by clicking on this link to submit your article) to being quietly subversive in your own everyday life.
All the above shows that discrimination and violence against LGBTQ persons do not just happen on an individual level. They also occur on a wider, systemic level, which is favourable towards individuals who fit traditional forms of gender expression, sexual orientation and gender identity (a.k.a. cis-heteronormative).
Dismantling any discriminatory laws requires time and must be done in tandem dismantling discriminatory mindsets within the community. For the law is nothing but an expression of the general will of the people.
See here for a comprehensive and detailed review of the Malaysian legal system, the laws, and its impact on LGBTQ rights.
Are Asia and LGBTQ identities like water and oil? If you say ‘yes’, this article by Michelle Yesudas will change your mind.
Nathalie Kee writes from the perspective of a practising lawyer and ally who firmly believes in free access to legal knowledge.