Introduction
This report presents information on public opinion about transgender people and their rights in Malaysia. We analyzed data from the 2017 Global Attitudes Toward Transgender People survey, Malaysia panel, to provide new information on views toward transgender people, their rights, and their status in society.
Transgender activists suggest that there are approximately 20,000 to 30,000 transgender women or mak nyah in Malaysia. Very little is known about transgender men, although the local online community Transmen of Malaysia has more than 170 registered members. As recently as the early 20th century, transgender people were generally accepted in the Malay Archipelago. This situation changed starting in the 1980s. The competition between political parties to conform to perceived Islamic ideals in order to gain political credibility, a resurgence of Islam and expansion of Syariah laws in the public sphere, and the desire to attain a level of respectable Islamic modernity meant that purportedly ‘un-Islamic’ elements such as non-normative genders and sexualities had to be eradicated. For example, in 1997, Prime Minister Mahathir Mohamad challenged the traditional roles of sultans as leaders of Islam in their individual states by creating the Jabatan Kemajuan Islam Malaysia (JAKIM) or the Department of Islamic Development to oversee Islamic matters in the country. In retaliation, the sultans outlawed “sex-change operations” and “cross-dressing.” From that time, the persecution of transgender women in Malaysia escalated.
Malaysia is a representative democracy with a constitutional monarchy. Laws are made at the state and federal levels. The country employs two justice systems to enforce both secular and religious legal codes—specifically the local Islamic Syariah legal code for Muslims in Malaysia. While Article 8(2) of the Federal Constitution explicitly outlines protection against gender-based discrimination, there are no explicit protections for transgender people based on their gender identity or expression in the law and Federal Constitution. Malaysian activists have noted that the absence of any legal or constitutional protections leaves such individuals vulnerable to exclusion, discrimination, stigma, bullying and violence. In many segments of Malaysian society, transgender people are expected to conform to the norms of the gender assigned to them at birth in order to access benefits, employment opportunities, legally marry, adopt children, or serve in the military.
Transgender people are subjected to criminalization and non-recognition of their gender identity and expression throughout the country. These include Syariah and state laws in all 13 states and three federal territories that criminalizes “any male person…wear[ing] a woman’s attire and pos[ing] as a woman,” laws in four states that criminalize “female person[s] posing as men,” and the secular Civil Law Section 21 of the Minor Offences Act 1955, which has been used to criminalize transgender women for engaging in “disorderly or indecent” behavior. Of note, the statewide Syariah law in Negeri Sembilan was deemed unconstitutional by the Court of Appeal on several grounds, including that it violated constitutional protections against gender-based discrimination; however, the decision was subsequently overturned on a technicality at the Federal Court level. Additionally, transgender people have often been denied the right to amend their names and gender markers on their national identity cards and other legal documents. These identification cards are fundamental to many individuals’ interactions with their government and other entities, such as banks and hospitals, and having a gender marker incongruent with one’s gender identity has been shown to lead to discrimination and harassment.
As a Muslim-majority country that generally holds conservative views of gender and sexuality issues, gender and sexuality binaries are often upheld and enacted without contestation, and this furthers the stigmatization of transgender people. Additionally, Muslim religious leaders, as well as leaders of religious minorities, including Christians, have spoken out strongly against transgender “deviance” and “sinfulness,”and there have been efforts to change a transgender person’s gender identity through religious conversion therapies such as the state-sponsored Mukhayyam program targeted towards Muslim transgender youth. Some transgender women and gay men are also recommended or referred to both state- and non-state sponsored conversion therapy programs in secular health facilities. According to JAKIM, about 1,700 LGBT individuals have attended their “gender confusion education, treatment, and rehabilitation programme” since its inception in 2011.