Recommendations

​

We recommend the Government to:

​

(a) prohibit pre-employment and discrimination at the workplace under the Employment Act; 
(b) enact a comprehensive anti-discrimination act that prohibits multiple forms of discrimination, including on the basis of sexual orientation, gender identity, gender expression and sex characteristics, and recognises the intersectional nature of discrimination; 
(c) enact a Gender Equality Act that recognises gender as a multidisciplinary concept, which recognises diverse gender identities and the harmful impact of binary social construct of gender on all persons, including cisgender persons; and 
(d) conduct training for public officials on gender, diversity, and human rights. 

​

The publication “Standards of Conduct for Business: tackling discrimination against lesbian, gay, bi, trans, and intersex people” by the Office of UN High Commissioner for Human Rights, shaped by the UN Guiding Principles on Business and Human Rights and other inputs from diverse sectors, outlines the following five standards for businesses:

​

(a) Respect human rights of LGBTI workers, customers, and community members; 
(b) Eliminate discrimination against LGBTI employees in the workplace; 
(c) Support LGBTI staff at work; 
(d) Not discriminate against LGBTI customers, suppliers, and distributors, and insist that business partners do the same; and
(e) Stand up for human rights of LGBTI people in the communities where they do business[16].

 

Guided by the UN Guiding Principles on Business and Human Rights, the private sector should take measures to protect, respect, remedy, and promote the human rights of trans and gender-diverse persons. We also recommend the Government to: 

​

(a) introduce comprehensive non-discrimination and inclusion policies to ensure trans and gender-diverse workers are protected against discrimination and violence;
(b) introduce gender, inclusion and diversity, and human rights training programmes at the workplace to dismantle prejudice among co-workers and create a welcoming environment; and
(c) adopt trans- and gender-diverse-affirming workplace guidelines. Guidelines developed by civil society, for example, the Transgender Equality Network Ireland (TENI)’s “Guidelines for Employers and Employees”[17] and Transgender Europe (TGEU)’s “Trans-Inclusive Workplaces — Guidelines for Employers and Businesses”[18] provide tools and resources for employers to implement the inclusion of trans and gender-diverse persons in the workplace.

​

2.2 Human Rights Defenders

​

Tharani’s testimony shows the increased vulnerability of trans women human rights defenders, including those who are not explicitly defending the human rights of LGBTIQ persons. Visible trans women human rights defenders especially are vulnerable to gender-based hateful speech, crimes, and discrimination online and offline. 

​

The UN’s “Gender Dimensions of the Guiding Principles on Business and Human Rights” notes that women human rights defenders who challenge business-related human rights violations are vulnerable to multiple forms of risks, discrimination, and violence, including but not limited to the workplace. The report notes that the vulnerability faced by women human rights defenders“ reflect a failure to integrate a gender perspective in laws, regulations, policies, plans, practices, processes and decisions. The current general business practice of gender-neutral human rights due diligence is a case in point”.[19] In the context of trans and gender-diverse people, the policies are not only gender-neutral but also cisnormative and heteronormative. The report recommends “a gendered approach to decision-making by States and businesses should also consider the intersectional nature of discrimination".[20]

​

The LGBTIQ monitoring report shows that LGBTIQ human rights defenders and those who defend the rights of LGBTIQ persons are vulnerable to multiple forms of discrimination and violence by State and non-State actors, including: 

 

(a) Censorship;
(b) Loss of employment for LGBTIQ persons, human rights defenders, or allies;
(c) Police investigation;
(d) Increased vulnerability of being reported to the police or other State agencies; and
(e) Property damage.

​

The report notes that the LGBTIQ human rights defenders face self-isolation and increased mental health burden as a result of the backlash that they face. 

 

In Malaysia’s 2018 CEDAW review, the Committee expressed its concern over the arbitrary arrests, harassment, and intimidation by State authorities as well as religious institutions, and recommended the State to: 

​

50. … ensure that women human rights defenders can freely undertake their important work without fear or threat of arbitrary arrests, harassment and intimidation, including the issuance of fatwas by religious institutions, by fully guaranteeing their rights to freedom of expression, assembly and association. It also recommends that the State party provide capacity-building on women’s rights and gender equality to law enforcement officials, members of the judiciary and members of religious institutions.[21]  

 

Recommendations 

​

State
 
In addition to the Concluding Observations by the CEDAW Committee, we recommend that the Government address human rights violations that have surfaced in relation to the hospital cleaning workers in line with the State’s duty to protect against human rights violations within its jurisdiction and the UN Guiding Principles on Business and Human Rights, where principle 26 notes that States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses, including considering ways to reduce legal, practical, and other relevant barriers that could lead to a denial of access to remedy. This, among others, includes non-obstruction to legitimate and peaceful activities of human rights defenders.

​

Meanwhile, principle 27 notes that States should provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse. The Guiding Principles notes that National Human Rights Institutions play an important role in addressing violations and the State should “consider ways to address any imbalance between the parties to business-related human rights claims and any additional barriers to access faced by individuals from groups or populations at heightened risk of vulnerability or marginalization".[22] 

​

Private sector

​

Apart from the State’s duty to address business-related human rights impacts and claims, the UN Guiding Principles on Business and Human Rights outlines the roles of businesses in safeguarding human rights. Principle 23 of the Guiding Principles states that all businesses should:

 

(a) comply with all applicable laws and respect internationally recognised human rights, wherever they operate;
(b) seek ways to honour the principles of internationally recognised human rights when faced with conflicting requirements; and
(c) treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue wherever they operate.

​

Principle 13 of the UN Guiding Principles on Business and Human Rights outlines the responsibility of business enterprises in respecting human rights, which includes: 

​

(a) To avoid causing or contributing to adverse human rights impacts; and 
(b) To seek to prevent or mitigate adverse human rights impacts that involve them, even if they have not contributed to those impacts.[23] 

​

In Tharani’s case, while the direct perpetrator could be an employee, her company as the employer has the duty to avoid contributing to, and to mitigate adverse human rights impacts. Principle 15 of the Guiding Principles recommends business enterprises to put in place appropriate policies and processes to meet their responsibilities to respect human rights.[24] We recommend the private sector to adopt an anti-discrimination workplace policy in line with the UN Guiding Principles on Business and Human Rights, which also expressly states SOGIESC as grounds of discrimination.[25] 

​

Lastly, to be in line with principle 17 of the Guiding Principles, which recommends companies to carry out human rights due diligence to identify, prevent, mitigate, and account for actual and potential human rights impacts and how they will address adverse human rights impacts, among others.[26]  

​

3. Paddy’s Testimony
 
The testimony from Paddy (pseudonym) brings to the forefront several intersecting issues. These include:

​

(a) Criminalisation and its wide-ranging impact on trans people. Her sharing also shows the hefty cost of seeking access to justice. In Paddy’s situation, her desire to be free from criminalisation, arbitrary arrest, and detention came at the cost of her own mental health and well-being; and 
(b) Impact of COVID-19 on trans people. In this section, Paddy shared the struggles during COVID-19. We emphasise that trans and gender-diverse people and their experiences are not included in many research and data collection processes. As a result, trans and gender-diverse people are not only left behind, but they also remain invisible. 

​

Paddy’s testimony highlights issues of family acceptance and isolation alongside criminalisation and the increasing context of anti-trans and LGBT sentiments. 

​

3.1 Criminalisation
 
In Malaysia, Muslim trans women are penalised for their gender identity and gender expression under Syariah criminal enactments and acts in all 13 states, and the Federal Territories. There are two versions of the law:

 

(a) In 10 states: any male person who, in any public place, wears a woman’s attire and poses as a woman for immoral purposes shall be guilty of an offence and shall on conviction be liable to a fine not exceeding ___ ringgit [the amount of the fine varies by state] or to imprisonment for a term not exceeding ___  years [the term of imprisonment varies by state] or to both; and
(b) In four states: any male person who, in any public place, wears a woman’s attire and poses as a woman shall be guilty of an offence and shall on conviction be liable to a fine not exceeding ___ ringgit [the amount of the fine varies by state] or to imprisonment for a term not exceeding ___ years [the term of imprisonment varies by state] or to both.

​

In summary, the penalties vary between six months to one year of imprisonment and fines between RM1,000 to RM5,000. 

​

In 2019, section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992, which penalises “male persons who wear women’s attire or pose as a woman” was amended to include “for immoral purposes”.[27] The punishment was also increased from a fine not exceeding RM1,000 or imprisonment not exceeding six months or both, to a fine not exceeding RM3,000 or imprisonment not exceeding two years or both.[28] Additionally, section 66A was introduced to criminalise female persons who wear men’s attire or pose as a man.[29] 

​

Four states in Malaysia criminalise female persons posing as a man. 

​

According to the Pelan Strategik JAKIM 2015–2019 and the Manual Islam & Mak Nyah, there were 746 cases of arrest under the ‘posing as a woman’ state Syariah laws between 2008 and 2012 in Malaysia. In 2010, 218 cases of arrest were reported throughout Malaysia — the highest recorded cases between 2008 and 2012.[30] That same year Paddy and her friends filed a constitutional challenge against section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992 at the Negeri Sembilan High Court.

​

3.2 Application of the Law

​

Based on published research, the use of the laws remains arbitrary in practice. “I’m Scared to Be a Woman”, a publication by Human Rights Watch shows the various contexts in which the laws are used, the multiple forms of violence and degrading treatment that trans women face due to the use of these laws, and the criminalisation of trans women based on their gender identity and expression. 

 

The report shows that trans women have been arrested and harassed under Syariah laws:

​

(a) when they are in public places, for example disco or clubs, buying food, or in their car travelling to places. In one case, the report notes that non-Muslim trans women were also arrested in raids by the state Islamic departments. Based on our experience documenting cases of arrest, depending on the law enforcement agencies that are involved in these arrests, we find that non-Muslim trans women are often let go, remanded or charged under other laws; 
(b) during trans-women-related events, including charity events, beauty pageants, and private functions in hotels;
(c) when trans women are in areas that are known for sex work; and
(d) for alleged sex work.

 

In these cases of arbitrary arrest, trans women face multiple forms of violence; and degrading, humiliating, and inhumane treatment. Numerous research materials and documentation have reported the following: 

 

(a) High levels of sexual harassment and violence during arrest and detention. The sexual harassment links to the non-recognition of trans women as who we are and our gender identity. As a result, public officials feel that it is justified to grab our breasts or make us remove our tops in public because trans women are perceived as male persons; 
(b) Multiple forms of violence and extortion during arrest and detention. Some violence is a result of being chased by state religious department officers, some of whom are in civilian clothes; 
(c) Humiliating and degrading treatment during arrest and detention. Some of the arrests take place in public places, causing unwanted public attention; and 
(d) Involvement of the media in arrests and raids not only causes humiliation, but also termination of employment.

​

It is also important to note that while these laws directly target Muslim trans women, the impact of these laws are wide-reaching. The laws and criminalisation of trans women result in, among others, the following: 

 

(a) They create negative perceptions and stereotypes about trans and gender-diverse people, which enable discrimination and violence, including within the family. Many anecdotal evidence show that fear of discrimination and violence of LGBTQ people results in family members forcing LGBTQ people to suppress their identities. Research shows negative responses from parents to LGBT youths can be attributed to anxious concerns over the child’s well-being and future to abuse.[31]

 

Further, in a context where state Syariah laws are perceived as ‘God’s laws’[32], the criminalisation under the state Syariah laws reinforce the notion that LGBTQ people are sinners both among LGBTQ and non-LGBTQ persons. In tandem with that, challenging a discriminatory Syariah law is seen as a challenge to Islam itself, resulting in severe impact and isolation of those who seek redress and justice. 

​

(b) They allow violence and discrimination against all trans and gender-diverse persons by various actors with impunity. There are many documented cases of extortion involving state officials and trans women. In some, we have also seen the establishment of vigilante groups to address social ills. Skuad Badar in Sungai Petani, Kedah reportedly arrested and tarbiah (counselled) trans women. Justice for Sisters reported that the group had harassed, detained, and shaved heads of trans women in Kedah.[33] The squad was reported to have collaborated with the state Islamic agency to carry out enforcement activities.[34] 

​

(c) They increase the lack of trust in Government agencies, especially the police. This is especially apparent in the limited access to redress and justice that trans women experience. 

​

Lastly, the criminalisation of trans and LGBT people allows other forms of state-sanctioned acts against LGBTIQ persons such as state-funded rehabilitation programmes in Malaysia. Rehabilitation or conversion practices are widely discredited due to its long-term harmful impacts. 

​

3.3 Constitutional Challenge to the Law
 
In 2014, in an appeal of a constitutional review of section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1994, the Court of Appeal found section 66 to be unconstitutional on the grounds that it violates: 

 

(a) Article 5 on the right of trans women to live with dignity. The Court of Appeal cited Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumah [2000] 3 CLJ 224: 

​

5. the word ‘life’ in Art. 5(1) includes the right to live with dignity. In his words, (at p. 239) — 

… it is the fundamental right of every person within the shores of Malaysia to live with common human dignity.[35]

​

The Court stated that, “as long as section 66 is in force the appellants will continue to live in uncertainty, misery and indignity. They now come before this Court in the hope that they may be able to live with dignity and be treated as equal citizens of this nation."[36] 

​

The Court noted that the word “life” in article 5(1) “means more than mere animal existence: it also includes rights such as rights as livelihood and the quality of life (see Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor. [1996] 2 CLJ 771 and Lee Kwan Woh v. PP [2009] 5 CLJ 631 at p. 643 para [14])".[37] As such, the Court also noted that the state law had an “inevitable effect of rendering their right to livelihood/work illusory, for they will never be able to leave their homes, cross-dressed, to go to their respective places of work without being exposed to being arrested and punished under section 66".[38] 

 

(b) Articles 8(1) and (2) that safeguard equality before the law and prohibit gender-based discrimination. 

​

(c) Article 9 on freedom of movement. The Court of Appeal stated that “even if we were to regard section 66 as a restriction and not as a denial of the right to move freely within the country, still, such restriction, according to judicial authorities (see Sivarasa Rasiah; Dr. Mohd Nasir Hashim and Muhammad Hilman), must be subject to the test of reasonableness. However, we hold that section 66 is an unreasonable restriction of the appellants’ right to freedom of movement — and hence unconstitutional as being inconsistent with Art. 9(2) of the Federal Constitution".[39] 

​

(d) Article 10 on the right to freedom of expression. In the decision, the Court of Appeal affirmed that self-expression and gender expression are part of our freedom of expression.

​

A person’s dress, attire or articles of clothing are a form of expression, which in our view, is guaranteed under Art. 10(1)(a).[40]

 

In the decision, the Court of Appeal also noted that “art. 10(2)(a) states that only Parliament may restrict freedom of expression in limited situations; and so long as such restrictions are reasonable. The state Legislative Assemblies in Malaysia (and this includes the state legislature of Negeri Sembilan) have no power to restrict freedom of speech and expression. Only Parliament has such power. This is confirmed by the Supreme Court in Dewan Undangan Negeri Kelantan & Anor. v Nordin Salleh & Anor [1992] 1 CLJ 72 (Rep) at 82".[41]  

​

“… Moreover, any restriction on freedom of expression must be reasonable (see Sivarasa Rasiah; Dr. Mohd Nasir Hashim and Muhammad Hilman). … Thus, also from the aspect of reasonableness, section 66 is unconstitutional".[42] 

​

Principle 19 of the Yogyakarta Principles on the right to freedom of opinion and expression states: 

 

Everyone has the right to freedom of opinion and expression, regardless of sexual orientation or gender identity. This includes the expression of identity or personhood through speech, deportment, dress, bodily characteristics, choice of name, or any other means, as well as the freedom to seek, receive and impart information and ideas of all kinds, including with regard to human rights, sexual orientation and gender identity, through any medium and regardless of frontiers.[43] (emphasis added in bold)

​

In 2015, the Federal Court set aside the decisions by the High Court and Court of Appeal on the grounds of technicality. Specifically, the Federal Court opined that the applicants had made a mistake in filling in their petition. However, in 2019, in the case of Alma Nudo Atenza vs PP & Another Appeal, the Federal Court opined that the filing procedure was indeed correct: 

​

[59] The decision in Titular Roman Catholic Archbishop of Kuala Lumpur (supra) was followed in State Government Of Negeri Sembilan & Ors v. Muhammad Juzaili MohdKhamis & Ors [2015] 6 MLRA 117; [2015] 6 MLJ 736; [2015] 8 CLJ 975; [2015] 6 AMR 248, where the validity of a State Enactment was challenged on the ground that it offended the fundamental liberties in arts. 5, 8, 9 and 10 of the Federal Constitution. Similarly, the Federal Court held that the challenge could only be made via the specific procedure provided for under arts. 4(3) and (4) of the FC.

​

[60] These two cases suggest that a challenge to the constitutionality or validity of a law on any ground comes within the ambit of arts. 4(3) and (4). With respect, we are of the view that the wide interpretation adopted is contrary to the clear wordings of the aforesaid Articles and is not supported by any consistent line of authorities. (See: Ah Thian (supra), Gerald Fernandez v. Attorney-General Malaysia [1970] 1 MLRA 126; [1970] 1 MLJ 262, Yeoh Tat Thong v. Government of Malaysia & Anor [1973] 1 MLRA 480, Syarikat Banita Sdn Bhd v. Government Of State Of Sabah [1977] 1 MLRA 81; [1977] 2 MLJ 217, Rethana M Rajasigamoney v. The Government Of Malaysia [1984] 1 MLRA 233; [1984] 2 MLJ 52, East Union (Malaya) Sdn Bhd v. Government Of State Of Johore & Government Of Malaysia [1980] 1 MLRA 270; [1981] 1 MLJ 151). We are therefore not inclined to follow these two cases. In our view, they were decided per incuriam.[44]

​

The doctrine of per incuriam, which translates as ‘through lack of care’ has a significant meaning. A per incuriam judgment refers to a judgment that was made without reference to a statutory provision or precedent. A judgment that has been decided per incuriam renders the judgment void, and the judgment does not have to be followed as a precedent by a lower court.[45]

​

Based on the Alma case, the applicants filed another petition to review the Federal Court’s decision in 2020, on the grounds that the decision was not inconsistent with article 121(2)(a) of the Federal Constitution and sections 96 and 74(1) of the Courts of Judicature Act 1964 causing injustice. However, their application was unsuccessful.[46]

​

3.4 Post Constitutional Case
 
As Paddy shared, we also observed a significant reduction in cases of arrest of trans women under the ‘male person posing as a woman’ provision in state Syariah laws following the Court of Appeal’s decision. However, it is also important to note that gender-disaggregated data of arrest and detention are unavailable. 

​

With that said, the laws and criminalisation of trans women still subject them to multiple forms of discrimination, violence, and surveillance. 

​

The LGBT monitoring report includes cases of arrest, harassment, and intimidation that occurred between 2018 and 2020. In the state of Perak, the trans women interviewees observed that the Perak state Islamic Department patrols areas where trans women usually gather.[47] In December 2019, a trans woman was arrested by the state Islamic Department in Taiping. However, she was released without charges on the same night of her arrest. The reasons for the arrest were unclear but attributed to being out at night in a sex work hotspot.[48] This underscores the harm of the law in its increasing arbitrariness with the harassment and surveillance of LGBTQ persons with impunity. 

​

The report also posits that trans women are still vulnerable to being targeted by state Islamic Departments under various state Syariah laws. Furthermore, LGBT human rights groups observe a shift in trends in the use of laws. This includes the following: 

​

(a) Liwat and attempt to commit liwat; 
(b) Encouraging vice (menggalakkan maksiat); 
(c) Insult to Islam; and 
(d) A group of trans women was arrested for not performing Friday prayers under section 16 of the Syariah Criminal Offences (Takzir) (Terengganu) Enactment 2001 in Kuala Terengganu in April 2019.[49] The trans women were arrested in their private homes. As a result, transgender people are afraid to go out and work due to fear of arrest.[50] Every Friday during prayer time, they would not stay at home but instead hide in other places.[51] 

​

The impact is, the trans women community, and myself included, yes, it’s compulsory for men, but it’s their own prerogative. In my opinion. But it’s the way the arrest is carried out. They arrest us at home. It’s not like we are hanging out in public spaces. There are so many men who hang out in the parks, by the beach during prayer time, but why don’t they arrest them. So in terms of impact, we are afraid. Afraid to go out. Every Friday, when it’s 12 noon, we will not be home. We run to some other places. Perhaps people may say just go do the Friday prayers, but when people see ‘pondan’ at the Friday prayer, what will people say to us?[52]  

​

Paddy also told of the humiliating and degrading treatment that she faced in court when a court official loudly called her by her name in her legal document (‘dead name’), misgendering and outing her in a public place. Her experience in the court correlates with the non-recognition and misinformation regarding trans and gender-diverse people in Malaysia. 

​

The SUHAKAM study shows that at least 57 respondents experienced challenges when dealing with Government actors and agencies because of their gender identity and gender expression. Meanwhile, 65 respondents shared that they faced challenges in accessing gendered spaces. 

​

3.5 International Standards and State Obligations in Relation to Criminalisation

​

States have an obligation to respect, protect, and fulfil the human rights of all persons within their jurisdiction, which includes LGBTIQ and gender-diverse persons.[53] These State obligations are established in international human rights law on the basis of the Universal Declaration of Human Rights, international human rights treaties, and customary international law.[54] The fundamental principles of universality, equality, and non-discrimination have been interpreted to include discrimination on the grounds of sexual orientation, gender identity, and sex characteristics.[55]  

​

The Born Free and Equal booklet outlines five core obligations of the States to protect, respect, and fulfil the human rights of LGBTIQ persons based on international human rights norms and standards, namely:[56]  

​

(a) Protect individuals from violence; 
(b) Prevent torture and cruel, inhuman, and degrading treatment or punishment; 
(c) Repeal discriminatory laws; 
(d) Prohibit and address discrimination; and 
(e) Respect freedom of expression, peaceful assembly, and association. 

​

Principle 33 of the Yogyakarta Principles safeguards the right to freedom from criminalisation and sanctions:[57]  

​

Everyone has the right to be free from criminalisation and any form of sanction arising directly or indirectly from that person’s actual or perceived sexual orientation, gender identity, gender expression or sex characteristics.

​

General Recommendation No. 33 on women’s access to justice (para 51) recommends States parties to: 

(l) Abolish discriminatory criminalization, and review and monitor all criminal procedures to ensure that they do not directly or indirectly discriminate against women; decriminalize forms of behaviour that are not criminalized or punished as harshly if they are performed by men; decriminalize behaviours that can only be performed by women such as abortion; and/or act with due diligence to prevent and provide redress for crimes that disproportionately or solely affect women, whether such acts were perpetrated by State or non-State actors;

​

In its 2019 Concluding Observations, the CEDAW Committee recommended that Malaysia: 

(a) amend laws that discriminate against LBTI women;
(b) apply a policy that protects LBTI women from discrimination and violence; and
(c) discontinue measures that aim to “correct” or “rehabilitate” LBTI women.

​

During the Universal Periodic Review, other States have consistently recommended Malaysia to review and repeal laws that discriminate against persons on the basis of their sexual orientation and gender identity as well as consensual sexual activities, to protect LGBTIQ against discrimination. All recommendations have been noted. 

​

Recommendations

​

We call on the Government to: 

​

(a) review and repeal all discriminatory laws based on gender identity and gender expression in line with human rights norms and standards; 

(b) end all prosecution and harassment against LGBTQ persons based on their gender identity, gender expression, and sexual orientation; 

(c) carry out gender, diversity, and human rights training for public officials; and 

(d) enact a Gender Recognition Act similar to the Gender Identity, Gender Expression and Sex Characteristics Act, 2015 in Malta, which recognises trans and gender-diverse persons based on the person’s self-determined gender identity. This means that no medical intervention is needed for recognition of gender. The act outlines the registration process, and data protection, among others.[58] 

​

3.6 COVID-19 Pandemic

​

Paddy in her testimony shared the impact of the COVID-19 pandemic on her and her community. 

​

During the pandemic, many trans and gender-diverse people, especially those in the B40 economic category, who are elderly, refugees, and stateless, became even more vulnerable. Firstly, there is no large-scale data of the trans population in Malaysia and their needs, which can be attributed to the following: 

​

(a) Lack of legal gender recognition in Malaysia that is seen as a barrier and impediment by others. As a result, we see many missed opportunities, including by the private sector to affirm trans and gender-diverse persons identities and collect necessary data with consent;

(b) Lack of robust and intersectional data collection, disaggregation, and analysis. For example, the census in Malaysia only includes two gender options and the selection has to be based on the identity on the person’s identification card; and

(c) Criminalisation and rehabilitation of trans and LGBTQ persons in Malaysia increase the trust deficit and raises concerns about sharing personal information due to fears over the misuse of personal information. For example, HIV data collection is often used to shame and justify the criminalisation of LGBT people, instead of developing evidence and rights-based strategies to address emerging issues. 

​

However, research shows that many trans women live in poverty or are vulnerable of falling into poverty as a result of the job discrimination that they face. Many also lack social support because they are working in informal job sectors also as a result of the pervasive employment discrimination. There are some documented cases of termination of employment of trans women during the pandemic. Given the limited choice of employment and pervasive employment discrimination, trans and gender-diverse face additional stress.

​

The SUHAKAM study shows the average monthly income of the 100 trans and intersex respondents living in Kuala Lumpur and Selangor. Nine (9%) out of the 100 respondents made below RM900 per month, which is considered as absolute poverty. A total of 10 respondents indicated that they have no income, of which three are trans persons with disabilities. The data shows that a significant portion of the respondents — more than 50% — fall within the B40 category.

​

Throughout the pandemic, many groups, together with LGBTIQ human rights groups provided COVID-19 relief assistance. During the first lockdown, they collectively raised RM83,569.08, which benefited over 1,100 requests for support from trans and LGBTIQ persons all over Malaysia. A small number of the recipients were cisgender women sex workers. In contrast, the Government noted that they assisted 525 mukhayam participants through its COVID-19 Musa’adah fund. 

​

Most recipients were from the B40 economic category, including many were sex workers and stateless persons. The Trans Solidarity Fund reported that the beneficiaries of the fund earned between RM0 to RM2,000 per month. About 20% of recipients were either unemployed or had no stable income. Meanwhile, over 48% earned between RM200 to RM950. In terms of age groups, the trans women who benefited were between 19 and 82 years old. 

​

LGBTIQ groups noted that many populations in rural and marginalised areas did not have access to adequate aid during the lockdowns. They also noted trans, gender-diverse, and LGBTIQ persons face additional barriers in accessing aid, which include:

​

(a) Fear of stigma and discrimination. This correlates with the increasing anti-LGBT sentiments; and 

(b) Use of identification cards as a verification tool to access aid. The lack of legal gender recognition puts trans and gender-diverse people in a position where they have to out themselves and put themselves at risk of humiliating, degrading, and discriminatory treatment. On the other hand, refugee and stateless trans and gender-diverse people, who do not have these documents, also find it challenging to access aid. 

​

As mentioned by the witness, trans and gender-diverse people, especially those living outside of the Klang Valley, also faced an increased digital divide.

​

Recommendations
 
The independent expert on SOGI released guidelines based on six fundamental actions identified as good practices in the design, implementation, and evaluation of measures of pandemic response and recovery. The six fundamental actions — the ‘ASPIRE’ guidelines — were developed through the lens of established international human rights frameworks.

​

ASPIRE stands for: 

​

(a) Acknowledgement, which includes the critical first step of acknowledging that LGBT persons are everywhere (and that they are hard-hit by the pandemic). As mentioned above, LGBTIQ persons are diverse and have intersecting identities, which exacerbate the impact of COVID-19 on them. 
(b) Support the work of LGBT civil society organisations and human rights defenders (and learn from their significant achievements).
(c) Protection of LGBT persons from violence and discrimination in the pandemic context (and prosecute perpetrators).
(d) Indirect discrimination avoidance.
(e) Representation of LGBT persons in the process of design, implementation, and evaluation of COVID-19-specific measures is key (and reflect their voices).
(f) Evidence-gathering concerning the impact of COVID-19 on LGBT persons must be gathered (and States must follow good practices).

 

We recommend the Government to: 

​

(a) adopt recommendations from SUHAKAM’s Study on Discrimination against Transgender Persons based in Kuala Lumpur and Selangor; 
(b) engage and work with LGBTIQ human rights groups to understand the vulnerability and address the needs of LGBTIQ persons so that no one is left behind; 
(c) ensure that COVID-19 relief assistance reaches all vulnerable LGBTIQ persons without conditions; and 
(d) end misinformation in relation to LGBTIQ persons and end State promotion of conversion practices. 

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3.7 Family Acceptance, Isolation, and Mental Health Burden
 
As mentioned by Paddy, trans, LGBTQ, and gender-diverse persons face increased isolation and enjoy very little space to express themselves because of the stigma that they face online and offline, in particular by their family members. Research shows that family acceptance can protect LGBT persons’ health and well-being. Family acceptance and support are associated with greater self-esteem, social support, general health status, less depression, less substance abuse, and less suicidal ideation and behaviours among LGBT youths. Family support among transgender youth specifically, has a protective effect against depression and is associated with the youth having a higher quality of life.[59] 

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The Freedom of Expression and Gender Identity in Malaysia research shows family and family members are a significant part of the lives of trans women. They play a considerable role in determining the extent to which trans women are able to express themselves, particularly at home. Extended family and neighbours are also important as they influence family acceptance of trans women. The report finds a positive correlation between family acceptance and the ability of trans women to accept and express themselves. 

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The report finds that family members who initially were not accepting of their trans family member eventually came around. Some attribute the change in the family’s acceptance to their financial independence. The respondents’ experiences suggest that family members lack understanding of trans identities and gender, and to some degree, the respondents too. At least three respondents said that their family members perceived them as ‘lembut’ or ‘soft’, which suggests a limited understanding of trans persons and gender identity. The report posits that family members might be more accepting if they had access to accurate and affirming information on trans persons and gender.

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The report found multiple forms of restrictions, aggression, and violence by family members, including extended family members. These include:

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(a) Pressure to change gender identity and expression;
(b) Isolation, which includes expression of shame of being associated or seen in public spaces and rejection to proposal to spend time together with family members, especially if it involves being in public spaces; and
(c) Loss of status within the family.

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The lack of family acceptance had a range of impacts on the respondents, including: 

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(a) Lack of ability to accept themselves;
(b) Loss of support system; and 
(c) Suicidal attempts.[60]

 

Some respondents noted that living independently gave them more freedom to express themselves and avoid conflicts with their family members. However, this is just a band-aid solution to ensure cordial relationships, and some level of support, are maintained both ways. 

 

Over the pandemic, SEED Foundation observed an increase in trans women seeking shelter due to violence and stress as a result of being unable to express themselves. 

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Recommendations
 
We recommend the Government to: 

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(a) end misinformation in relation to LGBTIQ persons, and end State promotion of conversion practices; and 
(b) provide accurate evidence and rights-based information regarding trans and LGBTIQ persons.

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Endnotes

[1] “What is transgender and what are the main health concerns of transgender people?”. WHO/Europe brief – transgender health in the context of ICD-11. WHO. https://www.euro.who.int/en/health-topics/health-determinants/gender/gender-definitions/whoeurope-brief-transgender-health-in-the-context-of-icd-11.

[2] “Born Free and Equal: Sexual Orientation, Gender Identity and Sex Characteristics in International Human Rights Law”. Office of the United Nations High Commissioner for Human Rights (OHCHR). 2019. p. 5. https://www.ohchr.org/Documents/Publications/Born_Free_and_Equal_WEB.pdf.

[3] “LGBTI people and human rights”. OHCHR. https://www.ohchr.org/EN/Issues/LGBTI/Pages/IntersexPeople.aspx.

[4] “Born Free and Equal: Sexual Orientation, Gender Identity and Sex Characteristics in International Human Rights Law”. p. 5. https://www.ohchr.org/Documents/Publications/Born_Free_and_Equal_WEB.pdf.

[5] Report of the Special Rapporteur on freedom of religion or belief. A/HRC/43/48. paras 62, 63 and 64. p. 15.

[6] Report of the Special Rapporteur on freedom of religion or belief. A/HRC/43/48. paras 62, 63 and 64. p. 15.

[7] “CEDAW adopts general recommendations including sexual orientation and gender identity”. Outright Action International. https://outrightinternational.org/content/cedaw-adopts-general-recommendations-including-sexual-orientation-and-gender-identity.

[8] Committee on the Elimination of Discrimination against Women. “General recommendations”. OHCHR. https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Recommendations.aspx.

[9] “General recommendation No. 27 on older women and protection of their human rights”. UN. http://daccess-ods.un.org/access.nsf/Get?Open&DS=CEDAW/C/GC/27&Lang=E.

[10] “General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women”. UN. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fGC%2f28&Lang=en; “CEDAW adopts general recommendations including sexual orientation and gender identity”. Outright Action International. https://outrightinternational.org/content/cedaw-adopts-general-recommendations-including-sexual-orientation-and-gender-identity.

[11] “General recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women”. UN. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fGC%2f32&Lang=en.

[12] “International documentation on sexual orientation and gender identity (SOGI)”. Outright Action International. https://outrightinternational.org/documentation/international-documentation-sexual-orientation-and-gender-identity-sogi.

[13] The Human Rights Commission of Malaysia (SUHAKAM). Study on Discrimination Against Transgender Persons Based in Kuala Lumpur and Selangor: Right to education, employment, healthcare, housing and dignity. Human Rights Commission of Malaysia. 2019. p. 63. https://www.ohchr.org/sites/default/files/Documents/Issues/SexualOrientation/SocioCultural/NHRI/Malaysia_Human_Rights_Commission.pdf.

[14] The Human Rights Commission of Malaysia (SUHAKAM). Study on Discrimination Against Transgender Persons Based in Kuala Lumpur and Selangor: Right to education, employment, healthcare, housing and dignity. Human Rights Commission of Malaysia. 2019. p. 110. https://www.ohchr.org/sites/default/files/Documents/Issues/SexualOrientation/SocioCultural/NHRI/Malaysia_Human_Rights_Commission.pdf.

[15] Winter, Sam, et al. “Denied Work: An audit of employment discrimination on the basis of gender identity in Southeast Asia”. Asia Pacific Transgender Network and United Nations Development Programme. 2018. https://weareaptn.org/wp-content/uploads/2019/11/APTN-DeniedWork-Main.pdf.

[16] “Standards of Conduct for Business: Tackling Discrimination against Lesbian, Gay, Bi, Trans, & Intersex People”. OHCHR. https://www.unfe.org/standards/.

[17] Prof Whittle, Stephen, and Dr Lewis Turne. “Trans-inclusive Workplaces Guidelines for Employers and Businesses”. TGEU. December 2017. https://tgeu.org/wp-content/uploads/2018/06/TGEU_transinclusiveworkplaces_web201806.pdf.

[18] “Supporting Transgender Inclusion in the Workplace: Guidelines for Employers and Employees”. TENI. 2017. https://www.teni.ie/wp-content/uploads/2019/11/Supporting-Transgender-Inclusion-in-the-Workplace-Guidelines-for-Employers.pdf.

[19] “Gender Dimensions of the Guiding Principles on Business and Human Rights”. United Nations Development Programme. paras 20 and 21. p. 54. https://www.ohchr.org/Documents/Issues/Business/BookletGenderDimensionsGuidingPrinciples.pdf.

[20] “Gender Dimensions of the Guiding Principles on Business and Human Rights”. United Nations Development Programme. paras 20 and 21. p. 54. https://www.ohchr.org/Documents/Issues/Business/BookletGenderDimensionsGuidingPrinciples.pdf.

[21] “Concluding observations on the combined third to fifth periodic reports of Malaysia”. CEDAW/C/MYS/CO/3-5. OHCHR. https://digitallibrary.un.org/record/1627641.

[22] “Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework". UN. 2011. p. 30. https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.

[23] “Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework". UN. 2011. p. 14. https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.

[24] “Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework". UN. 2011. p. 15. https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.

[25] “Gender Dimensions of the Guiding Principles on Business and Human Rights”. United Nations Development Programme. p. 54. https://www.ohchr.org/Documents/Issues/Business/BookletGenderDimensionsGuidingPrinciples.pdf.

[26] “Gender Dimensions of the Guiding Principles on Business and Human Rights”. United Nations Development Programme. p. 17. https://www.ohchr.org/Documents/Issues/Business/BookletGenderDimensionsGuidingPrinciples.pdf.

[27] Mohd Najib, Khairulkheiza. “Enakmen Jenayah Syariah (Negeri Sembilan) Diperkasa”, 1 May 2019, https://www.negerisembilan.org/01-mei-2019-1.

[28] Mohd Najib, Khairulkheiza. “Enakmen Jenayah Syariah (Negeri Sembilan) Diperkasa”, 1 May 2019, https://www.negerisembilan.org/01-mei-2019-1.

[29] Mohd Najib, Khairulkheiza. “Enakmen Jenayah Syariah (Negeri Sembilan) Diperkasa”, 1 May 2019, https://www.negerisembilan.org/01-mei-2019-1.

[30] “Infographic: Overview of Arrest and Detention of Trans Women in Malaysia”. Justice for Sisters. 20 February 2018. https://justiceforsisters.wordpress.com/2018/02/20/inforgraphic-arrest-of-trans-women-in-malaysia/.

[31] Dr Katz-Wise, Sabra L., et al. “LGBT Youth and Family Acceptance”. Pediatric clinics of North America. December 2016. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5127283/.

[32] Moustafa, Tamir. “Islamic Law, Women’s Rights, and Popular Legal Consciousness in Malaysia”. 2013. https://www.researchgate.net/publication/251311863_Islamic_Law_Women%27s_Rights_and_Popular_Legal_Consciousness_in_Malaysia.

[33] “Rise of Crimes and Violence against Trans Women Needs Urgent Attention”. Justice for Sisters. 3 January 2019. https://justiceforsisters.wordpress.com/2019/01/03/rise-of-crimes-and-violence-against-trans-women-needs-urgent-attention/; “Mak nyah diskriminasi wanita”. Infohviral. 19 August 2018. http://infohviral.blogspot.com/2018/08/mak-nyah-diskriminasi-wanita.html.

[34] Zakaraya, Siti Zubaidah. “JHEAIK jalin kerjasama dengan Skuad Badar, Ansar”. Sinar Harian. 21 April 2021. https://www.sinarharian.com.my/article/134743/EDISI/JHEAIK-jalin-kerjasama-dengan-Skuad-Badar-Ansar;  Hashim, Roslinda. “Skuad Badar: Boleh terus operasi tapi…”. Sinar Harian. 10 February 2019. https://www.sinarharian.com.my/article/12220/EDISI/Utara/Skuad-Badar-Boleh-terus-operasi-tapi-hellip.

[35] Civil Appeal No. N-01-498-11/2012. p. 14. https://www.refworld.org/pdfid/5475fb1a4.pdf.

[36] Civil Appeal No. N-01-498-11/2012. p. 15. https://www.refworld.org/pdfid/5475fb1a4.pdf.

[37] Civil Appeal No. N-01-498-11/2012. p. 16. https://www.refworld.org/pdfid/5475fb1a4.pdf.

[38] Civil Appeal No. N-01-498-11/2012. p. 17. https://www.refworld.org/pdfid/5475fb1a4.pdf.

[39] Civil Appeal No. N-01-498-11/2012. p. 22. https://www.refworld.org/pdfid/5475fb1a4.pdf.

[40] Civil Appeal No. N-01-498-11/2012. p. 23. https://www.refworld.org/pdfid/5475fb1a4.pdf.

[41] Civil Appeal No. N-01-498-11/2012. p. 24. https://www.refworld.org/pdfid/5475fb1a4.pdf.

[42] Civil Appeal No. N-01-498-11/2012. p. 24. https://www.refworld.org/pdfid/5475fb1a4.pdf.

[43] Principle 19: The Right to Freedom of Opinion and Expression. The Yogyakarta Principles. http://yogyakartaprinciples.org/principle-19/.

[44] Alma Nudo Atenza v. PP & Another Appeal [2019] 3 MLRA 1. https://www.elaw.my/JE/01/JE01_2019.html.

[45] Thapliyal, Arvind. “India: The Doctrine of Per Incuriam”. Mondaq. 5 August 2016. https://www.mondaq.com/india/civil-law/516732/the-doctrine-of-per-incuriam.

[46] Anbalagan, V. “Court turns down transgenders’ bid to hear right to cross-dress”. Free Malaysia Today. 27 July 2020. https://www.freemalaysiatoday.com/category/nation/2020/07/27/court-turns-down-transgenders-bid-to-hear-right-to-cross-dress/.

[47] Interview with R, 26 June 2020.

[48] Interview with O, 30 June 2020.

[49] Shamsuddin, Norizuan. “‘Mak andam’ tak solat Jumaat didenda RM2,600. BH Online. 28 August 2019. https://www.bharian.com.my/berita/kes/2019/08/601019/mak-andam-tak-solat-jumaat-didenda-rm2600.

[50] Interview with T, 30 June 2020; interview with P, 3 July 2020.

[51] Interview with P, 3 July 2020.

[52] Interview with P, 3 July 2020.

[53] “Born Free and Equal: Sexual Orientation, Gender Identity and Sex Characteristics in International Human Rights Law”. OHCHR. Second edition. 2019. https://www.ohchr.org/Documents/Publications/Born_Free_and_Equal_WEB.pdf.

[54] “Born Free and Equal: Sexual Orientation, Gender Identity and Sex Characteristics in International Human Rights Law". OHCHR. Second edition. 2019. p. 2. https://www.ohchr.org/Documents/Publications/Born_Free_and_Equal_WEB.pdf.

[55] “Born Free and Equal: Sexual Orientation, Gender Identity and Sex Characteristics in International Human Rights Law”. OHCHR. Second edition. 2019. p. 2. https://www.ohchr.org/Documents/Publications/Born_Free_and_Equal_WEB.pdf.

[56] “Born Free and Equal: Sexual Orientation, Gender Identity and Sex Characteristics in International Human Rights Law”. OHCHR. Second edition. 2019. p. 7. https://www.ohchr.org/Documents/Publications/Born_Free_and_Equal_WEB.pdf.

[57] Principle 33 (YP+10). The Yogyakarta Principles. https://yogyakartaprinciples.org/principle-33-yp10/.

[58] NATLEX: Database of national labour, social security and related human rights legislation (Malta). International Labour Organization. https://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=101028&p_country=MLT&p_count=4.

[59] Dr Katz-Wise, Sabra L., et al. “LGBT Youth and Family Acceptance”. Pediatric clinics of North America. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5127283/; Ryan, Caitlin, et al. “Family acceptance in adolescence and the health of LGBT young adults”. National Library of Medicine. https://pubmed.ncbi.nlm.nih.gov/21073595/.

[60] “Freedom of Expression and Transgender Women in Malaysia”.  Justice for Sisters. July 2021. 

https://static1.squarespace.com/static/5e2fb70868966a1c84c7e258/t/6156fb9848b86e3bf6013ad3/1633090508281/Empower_JFS_FOEGI_Report.pdf.

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