Report

Public Opinion of Transgender Rights in Malaysia

September 2020

This report analyzes data collected in the Global Attitudes Toward Transgender People survey. It is the first study to examine public opinion of transgender rights and status in Malaysia.

AUTHORS
Highlights
A Muslim-majority country, Malaysia has two justice systems to enforce both secular and religious legal codes.
There are no explicit protections for transgender people based on their gender identity or expression in the law and Federal Constitution.
A majority of participants agreed that transgender people should be protected from discrimination by the government.
Data Points
30%
of survey respondents reported having transgender acquaintances
17%
reported having transgender family members or friends
53%
of respondents agreed that trans people should be protected from discrimination by the government
49%
of respondents agreed that trans people should be allowed to serve in the military
37%
disagreed that they should be allowed to serve
48%
of respondents agreed that trans people should be allowed to adopt children
41%
disagreed that they should be allowed to adopt
Report

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.1 Very little is known about transgender men, although the local online community Transmen of Malaysia has more than 170 registered members.2 As recently as the early 20th century, transgender people were generally accepted in the Malay Archipelago.3 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.4 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.5

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.6 While Article 8(2) of the Federal Constitution explicitly outlines protection against gender-based discrimination,7 there are no explicit protections for transgender people based on their gender identity or expression in the law and Federal Constitution.8 9Malaysian activists have noted that the absence of any legal or constitutional protections leaves such individuals vulnerable to exclusion, discrimination, stigma, bullying and violence.10 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.11

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,”121314 laws in four states that criminalize “female person[s] posing as men,”15 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.16 Of note, the statewide Syariah law in Negeri Sembilan was deemed unconstitutional by the Court of Appeal17 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.18 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.19 20 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.21 22

As a Muslim-majority23 country that generally holds conservative views of gender and sexuality issues,24 25 gender and sexuality binaries are often upheld and enacted without contestation, and this furthers the stigmatization of transgender people.26 Additionally, Muslim religious leaders, as well as leaders of religious minorities, including Christians, have spoken out strongly against transgender “deviance” and “sinfulness,”27and 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.28 29 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.30 According to JAKIM, about 1,700 LGBT individuals have attended their “gender confusion education, treatment, and rehabilitation programme” since its inception in 2011.31

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Public Opinion of Transgender Rights in Malaysia

Slamah, K. (2005). The Struggle to Be Ourselves, Neither Men nor Women: Mak Nyahs in Malaysia. In G. Misra & R. Chandiramani (Eds.), Sexuality, Gender and Rights: Exploring Theory and Practice in South and Southeast Asia (pp. 98- 111). London, United Kingdom: Sage Publications Ltd.; Sulastri Ariffin, as cited in Yeow, J. (2001, September 8). ‘Women in men’s bodies’ struggle for basic rights. Malaysiakini. Retrieved from: https://www.malaysiakini.com/news/4611

Goh, J. N. (2019). Untying tongues: negotiations and innovations of faith and gender among Malaysian Christian trans men. Culture and Religion, 20(1), 1-20. Retrieved from: https://doi.org/10.1080/14755610.2018.1562482

Graham, P. (1987). Iban Shamanism: An Analysis of the Ethnographic Literature. Canberra, Australia: Department of Anthropology, Australian National University; Peletz, Michael G. (2006). Transgenderism and Gender Pluralism in Southeast Asia since Early Modern Times. Current Anthropology, 47(2), 309-340. Retrieved from: https://doi. org/10.1086/498947

Goh, J. N. (2015). Peculiar Politics in Malaysia: A Queer Perspective on Non-Heteronormative Malay-Muslim Men. In J. E. Cox & J. Grzelinska (Eds.), Ways of Queering, Ways of Seeing (pp. 3-33). Oxford, United Kingdom: Inter-Disciplinary Press; Liow, J. C. (2009). Piety and Politics: Islamism in Contemporary Malaysia. New York, NY: Oxford University Press; Noor, F. A. (2003). Blood, Sweat and Jihad: The Radicalization of the Political Discourse of the Pan-Malaysian Islamic Party (PAS) from 1982 Onwards. Contemporary Southeast Asia, 25(2), 200-232. Retrieved from: www.jstor.org/ stable/25798640

Teh, Y.K. (2008). Politics and Islam: Factors Determining Identity and the Status of Male-to-Female Transsexuals in Malaysia. In F. Martin, P. A. Jackson, M. McLelland, & A. Yue (Eds.), AsiaPacifiQueer: Rethinking Genders and Sexualities (pp. 85-98). Urbana, IL: University of Illinois Press

The Commissioner of Law Revision, Malaysia, “Syariah Criminal Offences (Federal Territories) Act 1997” (2006), § 28; The Commissioner of Law Revision, Malaysia, “Minor Offences Act 1955” (2006), § 21.

Federal Constitution of Malaysia (Reprint, 1 November 2010). Retrieved from: http://www.agc.gov.my/agcportal/ uploads/files/Publications/FC/Federal Consti (BI text).pdf

Anis, M. N. (2012, June 19). Dr Mashitah: No constitutional protection for LGBT. The Star. Retrieved from: https:// www.thestar.com.my/news/nation/2012/06/19/dr-mashitah-no-constitutional-protection-for-lgbt/

Asia Pacific Transgender Network & SEED Malaysia. (2017). Legal Gender Recognition in Malaysia: A Legal & Policy Review in the Context of Human Rights. Bangkok, Thailand: Asia Pacific Transgender Network (APTN). Retrieved from: https://www.undp.org/content/dam/rbap/docs/Research & Publications/hiv_aids/Malaysia-APTN_Publication_ OnlineViewing.pdf

Human Rights Watch. (2014, September). “I’m Scared to Be a Woman” Human Rights Abuses Against Transgender People in Malaysia. New York, NY: Human Rights Watch. Retrieved from: https://www.hrw.org/report/2014/09/24/im-scared-be-woman/human-rights-abuses-against-transgender-people-malaysia

KRYSS. (2014). On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia. New York, NY: International Gay and Lesbian Human Rights Commission. Retrieved from: https://outrightinternational.org/ sites/default/files/MalaysiaCC_0.pdf

KRYSS (2014).

Justice for Sisters. Laws that criminalize gender identity and expression in Malaysia. Retrieved April 20, 2020 from: https://justiceforsisters.wordpress.com/laws/

APTN & SEED (2017)

The four states are Pahang, Perlis, Negeri Sembilan, and Sabah. Justice for Sisters. Laws that criminalize gender identity and expression in Malaysia. Retrieved April 20, 2020 from: https://justiceforsisters.wordpress.com/laws/.

Ibid.

The Court of Appeal is the second-highest court in the Malaysian judiciary system, below the Federal Court. Office of the Chief Registrar – Federal Court of Malaysia. Court Hierarchy. Retrieved June 6, 2020 from: http://www.kehakiman. gov.my/en/about-us/court/federal-court/hierarchy

Muhamad Juzaili bin Mohd Khamis & Ors v. State Government of Negeri Sembilan (2014). Retrieved from: https:// www.refworld.org/pdfid/5475fb1a4.pdf; APTN & SEED (2017); Suparmaniam, S. (2015, October 8). Transgender case: Federal Court overturns Court of Appeal’s decision. Astro Awani. Retrieved from: http://english.astroawani.com/ malaysia-news/transgender-case-federal-court-overturns-court-appeals-decision-75716

KRYSS (2014). See also article on Malaysiakini (2019, July 29). Transgender Aleesha Farhana dies at 25. Malaysiakini. Retrieved from: https://www.malaysiakini.com/news/171502

Human Rights Commission of Malaysia. (2019). Study on Discrimination Against Transgender Persons Based in Kuala Lumpur and Selangor (Right to Education, Employment, Healthcare, Housing and Dignity). Selangor, Malaysia: Human Rights Commission of Malaysia (SUHAKAM). Retrieved from: https://drive.google.com/file/d/1wEJ2pVGheprNhqFquo QtMNV01nmfbK48/view

KRYSS (2014).

Barmania, S. & Aljunid, S. M. (2017). Transgender women in Malaysia, in the context of HIV and Islam: a qualitative study of stakeholders’ perceptions. BMC International Health and Human Rights, 17(1), 30. Retrieved from: https://doi. org/10.1186/s12914-017-0138-y

The official religions of Malaysia are Islam, Christianity, Buddhism and Hinduism. Department of Statistics, Malaysia. (2011, July 29). Population Distribution and Basic Demographic Characteristics 2010. Retrieved from: https://www. dosm.gov.my/v1/index.php?r=column/ctheme&menu_id=L0pheU43NWJwRWVSZklWdzQ4TlhUUT09&bul_ id=MDMxdHZjWTk1SjFzTzNkRXYzcVZjdz09

Welsh, B. (2019). Malaysia: Middle-Equality Trap. In S. Franceschet, M. L. Krook, & N. Tan (Eds.), The Palgrave Handbook of Women’s Political Rights (pp. 331-347). London, United Kingdom: Palgrave Macmillan. Retrieved from: https://doi.org/10.1057/978-1-137-59074-9_23.

Thas, A. M. K. & Sulathireh, T. (2012). CEDAW in Defending the Human Rights of Lesbians, Bisexual Women and Transgenders in Malaysia. In Equality Under Construction: Malaysian Women’s Human Rights Report 2010/11. Petaling Jaya, Malaysia: Persatuan Kesedaran Komuniti Selangor (EMPOWER) in collaboration with Strategic Information and Research Development Centre (SIRD). Retrieved from: https://www.academia.edu/18853876/CEDAW_in_ Defending_the_Human_Rights_of_Lesbians_Bisexual_Women_and_Transgenders_in_Malaysia_as_a_framework_ for_the_Respect_Protection_Promotion_and_Fulfilment_of_Human_Rights_related_to_Gender_Identity_Gender_ Expression_and_Sexual_Orientation.

Goh, J. N. (2012). The Homosexual Threat: Appraising Masculinities and Men’s Sexualities in Malaysia. In J. Hopkins & J. C. H. Lee (Eds.), Thinking Through Malaysia: Culture and Identity in the 21st Century (pp. 167-186). Selangor, Malaysia: SIRD

Teh, Y. K. (1998). Understanding the Problems of Mak Nyahs (Male Transsexuals) in Malaysia. South East Asia Research, 6(2), 165-180. Retrieved from: https://doi.org/10.1177/0967828X9800600204.

Shahbaz, S. (2020, February 28). Conversion Therapy: Trends in Asia. Presented at the Harvard Law School, Cambridge, MA at a United Nations Human Rights Special Procedures convening, organized by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity.

Justice for Sisters. (2019, April 19). Evidence of State-sponsored Violence and Discrimination Against LGBT Persons in Malaysia. Retrieved from: https://justiceforsisters.wordpress.com/2019/04/19/458/; Tham, J. V. (2018, December 20). Here’s How Malaysia “Cures” LGBTs With Conversion Therapy. Says. Retrieved from: https://says.com/my/news/here-s-how-malaysia-cures-lgbts-with-conversion-therapy

See, J. (2019, April). What it Means to Suffer in Silence: Challenges to Mental Health Access among LGBT People (Policy for Action No. 2/2019). Kuala Lumpur, Malaysia: Galen Centre for Health and Social Policy. Retrieved from: https://galencentre.org/wp-content/uploads/2019/04/PFA02_2019_Challenges-to-Mental-Health-Access-Among- LGBT-People.pdf

Justice for Sisters. (2020, August 5). Stop Intimidating Human Rights Defenders Who Question LGBTQ Related Government Policies. Retrieved from: https://justiceforsisters.wordpress.com/2020/08/05/stop-intimidating-human-rights-defenders-who-question-lgbtq-related-government-policies/, citing JAKIM-Jabatan Kemajuan Islam Malaysia. (2020, July 20). 1700 orang LGBT ikuti program rawatan dan pemulihan JAKIM. Retrieved from: https://www.facebook. com/MyJAKIMmalaysia/posts/1700-orang-lgbt-ikuti-program-rawatan-dan-pemulihan-jakimjakim-memandang-serius-/3354099984640547/