LGBTQ Legal Guide: What laws are out to catch you?
Most people, even from the LGBTQ community, do not have a clear idea of which laws actually criminalise us and our behaviour. We need to know them in order to understand how these laws are being used by the government to justify the raids, conversion camps, and its 5-year national policy to curb “LGBT behaviour”. (See here for a complete list of state-sponsored violence and discrimination).
This is why we’ve created a comprehensive guide to empower all with the knowledge of how the legislation affects us and our rights. This is part of a series by Queer Lapis of resources on the law and rights of everybody, especially LGBTQ people in Malaysia. In this part, we look at laws that criminalise us, our consensual sexual acts, and our gender identity and expression. In the chapter on our rights, we look at how our constitution guarantees our fundamental rights.
Overview:
- Many laws in Malaysia criminalise consensual sex which has immense impacts on the rights of everyone, especially LGBTQ people.
- Section 377A, B and D can be used to charge anybody who has consensual sex.
- State Shariah Laws criminalise consensual sexual acts and gender expression for Muslim persons.
Table of Contents
“Unnatural Offences” in Criminal law (penal code)
Criminal laws apply to everybody in the country, regardless of which state you reside in or what is your religion. The most problematic laws that violate LGBTQ rights are found in Section 377 of the Penal Code, which criminalises “unnatural offences”, and are highlighted in bold.
377. Buggery with an animal
377A. Carnal intercourse against the order of nature
377B. Punishment for committing carnal intercourse against the order of nature
377C. Committing carnal intercourse against the order of nature without consent, etc.
377CA. Sexual connection by object (without consent)
377D. Outrages on decency
377E. Inciting a child to an act of gross indecency
Note the harmful way in which the unnatural offences section is organised by lumping together consensual and non-consensual sex, bestiality and child sexual abuse in the same section. This creates stigma towards consensual sex. It also illustrates a clear lack of understanding by the state of what constitutes sexual violence, which is centred on the lack of consent.
Anyone who has oral and anal sex can be charged
Sections 377A and B penalise consensual sex between consenting adults of any gender and sexual orientation. Section 377A is often considered to be “anti-gay”, but this inaccurate as anyone who has oral and anal sex can be charged.
Carnal intercourse against the order of nature is defined as the insertion of a penis into the anus or mouth of another person, regardless of the genders of those involved, which makes it a gender-neutral law. But while the law seems unbiased, it has a significant impact on the LGBTQ persons in terms of threats of arrest, invasion of privacy, and extortion. The laws also create a chilling effect on other rights.
Carnal intercourse against the order of nature
377A. 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.
Explanation—Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.
Punishment for committing carnal intercourse against the order of nature
377B. 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 liable to whipping.
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The punishment for committing oral and anal sex is imprisonment up to 20 years and whipping, as outlined by 377B. Malaysia is thus the country which imposes one of the longest prison sentences for consensual sex in the world—besides those that charge life sentences.
Section 377 Penal Code Act 574 covers unnatural offences under several provisions. Section 377A and B criminalise consensual carnal intercourse between persons of any gender. Section 377 is a colonial law that was introduced by the British in the 1860s. To date, at least 68 countries criminalise, and at least 34 of these countries inherited the law from the British. (LGBTQ rights aren’t exactly a Western import from this point of view).
While the law was partially repealed in the UK in 1967, following the release of the Wolfenden Report (1957), the laws remained in other countries.
Meanwhile, in many countries, the laws had undergone amendments. In Malaysia, Section 377 was amended in 1989 in conjunction with legal reform in relation to the protection against rape and again in 2017 in conjunction with the introduction of the sexual offences against children act 2017.
In the 1989 amendments, Section 377, which was generally worded as ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished …’ underwent a major review. 5 new sections were introduced – Section 377 A, B, C, D and E. These new sections specified what is carnal intercourse and criminalised consensual carnal intercourse.
Meanwhile, the amendment in 2017 had resulted in an increase of punishment under Section 377. Section 377B currently imposes mandatory whipping for consensual sex between adults.
Today, many countries, even in Asia have made great strides in repealing Section 377, the most recent case being the unanimous 2018 decision in India.
In reviewing and repealing the laws under Section 377, it is also important to review the laws against sexual violence. At the moment the laws against sexual violence are not gender-neutral, comprehensive, and appears under several sections. Section 377, being named unnatural offences, adds stigma and creates a skewed understanding of consent.
Outrages on Decency
Several other laws can be used to criminalise LGBTQ people in this section, including this:
377D. Outrages on decency
Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years.
If we look at the exact wording of the law, “decency” or what constitutes its “outrage” is not defined. The word “consent” is also absent. Due to its vague and broad nature, these laws can be abused to charge LGBTQ people and anyone in general for arbitrary reasons. In the recent scandal, Azmin Ali was investigated under 377D, in addition to 377B, for the alleged sex video.
Other recent uses of the law were used to investigate and charge acts such as cases involving minors, indecent exposure, and more. While acts of sexual abuse and violence need to be criminalised, the issue is that Section 377 and its various laws are colonially-linked, outdated and unable to reflect the reality of modern Malaysia. This points to another pressing issue of the lack of comprehensive laws that explicitly address sexual violence, sexual harassment, and related sexual misconduct.
CASE HIGHLIGHT
Anwar Ibrahim is the most famous person to be charged under section 377A and B twice. He was found guilty the first time in 2000 and given a 5 years sentence, and was acquitted in 2004 by the Court of Appeal. He was charged the second time in 2010 and was given a 9-year sentence, of which he was pardoned by the Agong in 2018.
Section 377 was relatively unknown among Malaysians before Anwar’s trials. We believe there is a link between the increased hateful rhetorics and attitudes surrounding sexuality today and the political scapegoating of LGBTQ identity and sexual acts associated with Anwar’s case and others (including Azmin Ali’s).
In the beginning, State Syariah laws did not criminalise same-sex acts
While the federal laws above apply to everyone, state syariah laws only apply to Muslims and they differ from state to state. The syariah courts predominantly rule over matters related to Islamic personal and family law. However, since the 1980s, various laws have been passed that grant syariah courts the power to charge people who violate the precepts (principles) of Islam.
History
The syariah criminal offences act were introduced in Kelantan in 1985, and subsequently in other states in Malaysia. In the 1980s, there were no provisions that criminalised same-sex acts, however, zina (sex between unwed couples), khalwat (close proximity between unwed couples) were already criminalised. Gradually, however, states began to repeal these laws, and enact consolidated Syariah criminal offences enactments that included liwat (sexual relations involving anal penetration), musahaqah (sexual relations between women) as offences.
By the end of 2013, all 13 states and the Federal Territory had laws that target laws that criminalise same-sex relations and transgender people. Syariah laws, as we know them, are a recent invention. (The historical development of these laws and their influence by and on the socio-political environment in Malaysia is beyond the scope of this article, stay tuned for a future resource on this topic!)
Provisions
As it stands, the syariah criminal offences enactments have between 44 and 47 provisions divided into 5 sections:
- offences related to aqidah (Islamic creed)
- offences related to the sanctity of Islam and its institutions
- offences for indecent behaviour
- miscellaneous offences
- abetment and attempt of the offences.
As mentioned, the range of laws include those that deal with zina, khalwat, incest, not performing Friday prayers, disobeying fatwa (religious edict), liwat (sexual relations involving anal penetration), musahaqah (sexual relations between women), female person dressed as a man, male person dressed as a woman, sex work or prostitution, apostasy, among other matters.
Penalties
The maximum punishments for syariah courts are far less than civil courts as their sentencing jurisdiction is limited. They can only impose RM 5,000 in fines, 3 years of imprisonment and 6 strokes of the cane in accordance with the Muslim Courts (Criminal Jurisdiction) Act 1984.
There have been continued efforts in the last 3 years to push for the expansion of the syariah courts sentencing jurisdiction to RM 100,000 in fines, 30 years of imprisonment and 100 strokes of the cane. The main proponent of this change is the Islamic Party (PAS) who have introduced a Private Member’s Bill called RUU355 in parliament to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).
In 2002, the state of Terengganu introduced hudud laws and gazetted the laws in 2003, while Kelantan introduced hudud laws earlier in 1993. Under these laws, liwat is penalised for all persons. However, the laws are not enforceable because of the sentencing limits set by Act 355. The Islamic Party continues to use this bill to extend their political mileage, notably among the Muslims and their constituents, as a commitment by them to enforce hudud laws.
A Combination of Syariah Laws
Almost all states in Malaysia have a combination of Syariah laws that criminalise people based on sexual relations and consensual sexual acts under their respective state syariah criminal offences enactments.
This combination is made up of the following laws:
- Liwat (sexual conduct between men OR anal sex)
- Musahaqah (sexual conduct between women)
- Sexual intercourse against the order of nature (gender-neutral)
- Sexual relations between persons of the same gender
- Attempt to commit liwat
Unlike section 377 of the Penal Code, which does not define the genders of the accused, liwat and musahaqah in Syariah can specify sexual relations between men and sexual relations between women. In some states, however, liwat is seen as a sexual act (anal sex) between any gender. They are not consistent.
There are also laws that are used against transgender people and they fall under 2 categories (this will be covered more thoroughly in a separate article):
- Male person posing as woman
- Female person posing as a man
The punishments for Liwat, Musahaqah and related laws under state syariah laws in Malaysia
As the laws vary slightly from state to state, with differing definitions and penalties, it can be tricky to understand. Here’s an explanation.
Different States, Different Liwat
There are two main versions of the law—one that is gender-neutral and one that is gendered.
Definitions and interpretations
The gender-neutral liwat laws appear in the first 4 states that introduced the syariah criminal offences enactment between 1985 and 1992—Kelantan, Kedah, Melaka and Perlis. In Perlis, liwat is defined as ‘anal sex that also applies to heterosexual persons’, and in Kedah, it means ‘unusual sexual intercourse between a man and a man or between a man and a woman’. However, the definition of liwat contradicts the gender neutrality of the law in Melaka where liwat is defined as “homosexual relations in between men”. Kelantan, conversely, does not clearly define liwat. Meanwhile,
In the same year, 1992, the language of the law changed from being gender-neutral to only focusing on male persons or men in the 6 other states.
Any male person who commits liwat shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.
Liwat is defined as sexual intercourse between a man and another man in every state except for Perlis, Kedah, and Kelantan.
Consent
Another category that separates these laws are the factor of consent. The word ‘wilful’ appears in the laws of 5 states, while there is no mention of wilfulness or consent in the other 5 states, which speaks to a similar issue to 377D and the misunderstanding of sexual violence.
Punishments
Liwat is criminalised in 11 states. Pahang, Perak, and Selangor do not penalise liwat in their state enactments. However, Selangor has a related law, ‘sexual relations between persons of the same gender’. Terengganu has an unusual phrasing: “Liwat is an offence consisting of carnal intercourse between a male and another male or between a male and a female other than his wife performed against the order of nature, that is through the anus.”
As mentioned above, both Kelantan and Terengganu had passed hudud laws in 1993 and 2002 respectively, and the punishments include stoning, whipping and imprisonment. However, these are not enforceable, as it is beyond the state’s jurisdiction.
To Musahaqah or Not to Musahaqah
Musahaqah is criminalised in all states except for Pahang and Selangor. However, in Selangor, ‘sexual relations between persons of the same gender’ is used in its place, similar to section 377B.
Definitions and interpretations
Musahaqah is defined in the definitions of the most State Syariah Enactments to mean “sexual intercourse or relations between a woman and a woman”. Only Kelantan has no definition for musahaqah.
Consent
The laws on musahaqah are gendered and use language such as “wilfully” in place of consensual. There are two main versions of the law:
- “Any woman who wilfully commits musahaqah with another woman” (Kelantan, Kedah, Melaka, Perlis, Perak, Sabah),
- “Any woman who commits a musahaqah” (Johor, Negeri Sembilan, Penang, Sarawak, Terengganu and Federal Territory)
The issue of the misunderstanding of sexual violence and consent is apparent here again where consensual sex is criminalised in the first version, and consensual and non-consensual sex is collapsed into one law in the second version.
Punishments
The sentencing varies too from one state to another. Five states in Malaysia—Johor, Penang, Sarawak, Terengganu and Federal Territory—outline the maximum sentencing within the Syariah Courts jurisdiction i.e. RM5000 fine, or 3 years imprisonment or 6 lashes or any combination thereof. Kedah is the only state that imposes a sentence of fine not exceeding RM5000 or to imprisonment for a term not exceeding 4 months or to both.
CASE HIGHLIGHT
In 2018, the Terengganu Syariah High Court sentenced two persons to a fine and 6 strokes of the cane for the attempt of musahaqah. “Attempt of musahaqah” does not exist under the law, instead, two sections, “musahaqah” and “attempt” were read together.
LGBTQ organisations say that this is a troubling trend that reflects the arbitrary usage of laws with regards to persecuting consensual sex acts.
As punishments, the two were caned in a public gallery, sparking an international outcry condemning what amounted to torture. The caning was the first public caning under the Terengganu Syariah enactment, or anywhere else in Malaysia.
Laws against the order of sexual nature
Criminalised in four states, “Sexual intercourse against the order of nature” is not defined in all four of them. The law is gender-neutral and applies to all persons regardless of gender identities or sexual orientations. In practice, it is used similarly to the liwat and musahaqah laws discussed above.
The language used for sexual intercourse against the order of nature varies according to states, but the gist of it is identical to Section 377, before its amendments in 1989.
CASE HIGHLIGHT
In 2019, 11 men charged for attempting sex in Selangor and their trials are ongoing. Similarly to the 2018 Terengganu caning case, the men were charged under two sections that were read together: Sexual intercourse against the order of nature and attempt.
They faced all kinds of abuses from arrests all the way to their trials. Read here to learn more about their case and how you can help.
“Male person posing as a woman”
All 14 states have laws that criminalise ‘any male person who dresses or poses as a woman’. In 9 states, only male persons who dress or pose as a woman for “immoral purposes” are charged. Meanwhile, you can be charged in 5 states even without so-called immoral purposes.
In practice, transgender women were targeted and subjected to arbitrary arrest. Many trans women have also reported a range of violence, extortion and degrading treatment.
CASE HIGHLIGHT
In 2010, a group of transgender women in Negeri Sembilan filed a judicial review of Section 66 of the Negeri Sembilan Syariah Criminal Offences Enactment following a series of raids, arbitrary arrests and violence targetting trans women in the state. The women claimed that the law contravenes with their rights guaranteed in our constitution: Article 5 (personal liberties), Article 8 (equality and non-discrimination), Article 9 (freedom of movement), Article 10 (freedom of speech, assembly and association). In 2014, the Court of Appeals in a landmark decision declared Section 66 unconstitutional. However, this decision was overturned the following year on a technicality.
“Female person posing as a man“
Three states in Malaysia: Perlis, Sabah and Pahang penalise female persons who dress or pose as a man. It is also important to note there are no known documented cases of individuals being charged under these laws, according to Justice for Sisters, an LGBTQ organisation focusing on legal reform. However, anecdotal reports of harassment of pengkid (masculine or transmasculine persons) have been documented.
The different punishments for various laws in different states
For the entire list of laws in each state, their exact definitions and punishments, see here. For a summary of punishments of laws criminalising gender expression, see here.
Fatwas
Fatwas are essentially the opinions of religious scholars on a range of issues and whether they are permissible (halal) or forbidden (haram). In the context of Islamic jurisprudence and syariah law, fatwas issued are not legally binding unless a state gazettes them. Once it is gazetted, it can be enforced and Muslims are liable to be charged if they violate them and can be sentenced with up to the maximum punishments allowed as provided in the Muslim Courts (Criminal Jurisdiction) Act 1984: three years jail, up to RM5,000 fine or six strokes of the cane. To learn more on fatwas, read this explainer here.
A large number of fatwas, gazetted and non-gazetted, exist that criminalise gender identity and expression. See the complete list below, updated as of 2012.
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| Date | Issue | Status |
| 13 April 1982 | Sexual Transplant From Male To Female/ Pertukaran Jantina Daripada Lelaki Kepada Perempuan | This matter was discussed at the national level. The Fatwa Committee National Council of Islamic Religious Affairs Malaysia decided that a person who is born as a “khunsa musykil”, who has both male and female genitals, is permitted to undergo surgery “to retain the most functional private part according to the suitability”. It was also decided that a person, even if she or he has successfully undergone sex reassignment surgery would still remain a male or a female. |
| 24 February 1983 | The Status Of Transvestite In Islam/ Kedudukan Mak Nyah Dalam Islam | Sex change is forbidden in Islam for male and female persons. |
| 13 December 1989 | The Status Of Transvestite In Islam/ Kedudukan Mak Nyah Dalam Islam | Sex change from man to woman and vice versa through operation is prohibited in terms of Syariah. |
| 16 March 1993 | Sex Change from Male to Female/ Pertukaran Jantina Daripada Lelaki Kepada Perempuan | This discussion was prompted by a successful application by a post-operative trans woman to change her name in her identification card. Was discussed at the state level in Selangor, but was not gazetted. |
| 15 June 1993 | Ruling on Change of Gender for Mak Nyah/ Hukum Menukar Jantina Mak Nyah | Was discussed at the state level in Selangor, but was not gazetted. |
| 15 June 1993 | Marriage between Mak Nyah and Men | This discussion was prompted by a wedding between a trans woman and a cisgender man (Noranizah bte Mohd Yusuf and Richand bin Badry). This issue was discussed at the state level in Selangor, but it was not gazetted. |
| 14 April 2005 | The Ruling Of Changing The Gender Status In Mykad (ID) | The 68th Muzakarah (Conference) of the Fatwa Committee National Council of Islamic Religious Affairs Malaysia held on 14th April 2005 has discussed the ruling on changing gender status in Mykad (ID). The Committee has decided that: 1. Changing gender status in the ID for the owner who has undergone sex change operation which is permitted by Islamic law is permissible. 2. Changing gender status in the ID for the owner who had undergone sex-change operation which is prohibited by Islamic law is forbidden. |
| 21 November 2006 | The Issue of Gender Disorder; Congenital Adrenal Hyperplasia and Testicular Feminization Syndrome | |
| 25 May 2006 | The Ruling Of Changing The Gender Status In Mykad (ID)/ Hukum Menukar Status Jantina Di Mykad | The fatwa only authorizes change of gender in MyKad for those who are permitted to change their sex according to Islamic laws. This fatwa was gazetted on 25 May 2006 in Selangor. |
| 25 October 2007 | The Issue of Gender Disorder; Congenital Adrenal Hyperplasia and Testicular Feminization Syndrome/Isu Kekeliruan Jantina Congenital Adrenal Hyperplasia Dan Testicular Feminization Syndrome | The fatwa was gazetted in Selangor on 25 October 2007. |
| 22 – 24 October 2008 | Ruling on Women Imitating Men (Tomboy)/ Hukum Wanita Menyerupai Lelaki (Pengkid) | Tomboy or pengkid is defined as “women whose appearance, behaviour and sexual inclination are like men”. This matter was discussed at the national level. |
| 27 November 2008 | Ruling on Women Imitating Men (Tomboy)/ Hukum Wanita Menyerupai Lelaki (Pengkid) | Was discussed at the state level in Sarawak, but was not gazetted. |
| 3 December 2008 | Fatwa Ruling on Women Imitating Men (Tomboy)/Fatwa Hukum Wanita Menyerupai Lelaki (Pengkid) | The fatwa has been gazetted in Johor. |
| 14 December 2008 | Fatwa on Pengkid | Was discussed at the state level in Kelantan on 14 December 2008, but was not gazetted. |
| 18 December 2008 | Banning of Women Imitating Men/ Pengharaman Wanita Menyerupai Lelaki (Pengkid) | The fatwa was gazetted in Malacca on 19 November 2009. |
| 18 December 2008 | Ruling on Women Imitating Men (Tomboy) and Ruling on Men Imitating Women (Pondan and Mak Nyah)/ Hukum Wanita Menyerupai Lelaki (Pengkid) Dan Hukum Lelaki Menyerupai Perempuan (Pondan Dan Mak Nyah) | Was discussed at the state level in Perak on 18 December 2008, but was not gazetted. |
| 29 December 2008 | Ruling on Women Imitating Men (Tomboy)/ Hukum Wanita Menyerupai Lelaki (Pengkid) | Was discussed at the state level in Pahang on 29 December 2008, but has not been gazetted. |
| 18 March 2009 | Fatwa Ruling on Women Imitating Men (Tomboy)/Fatwa Hukum Wanita Menyerupai Lelaki (Pengkid) | The fatwa was gazetted in Wilayah Persekutuan Kuala Lumpur on 2 April 2009. |
Closing remarks
We have discussed laws that criminalise consensual sex between adults and laws that target transgender people. These laws do not reflect a diverse, contemporary society that understands the concept of equality, consent, and rights. They impact everyone’s freedom of expression and autonomy, and when LGBTQ people are seen as criminals, they are exposed to the high risks of arrests, raids, abuse by authorities, harassment, blackmail and more.
These laws violate Malaysians’ human rights so severely that they are clearly not constitutional. Additionally, the overlaps between state syariah criminal law and criminal law indicate that syariah law should not actually have jurisdiction to make laws on “unnatural sex”. Read the chapter on how the constitution protects the rights of LGBTQ people in Queer Lapis’s legal resource series to learn how we can challenge these laws and ultimately abolish them altogether. In the final part, we will look at how you can protect yourself when you’re being arrested, raided, intimidated or charged.
