A flawed Imagination of Asia: The unnatural laws against LGBTQ people

By Michelle Yesudas | Published on 18 May 2020

SAN SAN was wearing a dress and wig when she was out with friends one night in Mandalay, Myanmar. She described herself as a ‘cross-dresser’. A car pulled up and five plainclothes policemen brutally arrested her for ‘unnatural offences’ and for violation of the ‘shadow law’—criminal laws that continue to plague the LGBTQ community in Myanmar. She was physically abused, beaten, taunted, and slapped by the police during her detention and made to strip in front of policemen. This story is a tragically familiar echo of human rights violations perpetrated against the LGBTQ people all over Myanmar. The stories also bore stark resemblances to the encounters of LGBT people with the police and religious authorities in Malaysia. 

From 2018 to 2019, my team and I travelled throughout more than nine townships in Myanmar, covering Yangon, Mandalay, Shan State, Magway region and Sagaing region, meeting over 70 people from the lesbian, gay, bisexual, transgender, queer community in the country, documenting their experiences with Myanmar’s legal system. As a former legal practitioner in Malaysia, inundated by the nation’s voyeuristic interests in Anwar Ibrahim’s sexual orientation via two decades of ‘sodomy trials’, followed by Azmin Ali’s, it was startling to see similarities with Myanmar, despite the differences in political history, legal systems, and cultural practices. 

Never a perfect time

17 May 2020 marks the International Day Against Homophobia, Transphobia and Biphobia (IDAHOTB), memorialising the decision to remove homosexuality from the International Classification of Diseases of the World Health Organization, after decades of hard work and campaigning. 2020 is Myanmar’s election year, and civil society organisations have launched a campaign called ‘Love is Not a Crime’. This campaign demands the immediate decriminalisation of consensual ‘same-sex relationships’, as the country responds to allegations of genocide, crimes against humanity and war crimes at the International Criminal Court and the International Court of Justice. 

To capitalise on elections, LGBTQ activists are working out methods to dialogue with potential candidates on issues of sexual orientation, gender identity and expression (SOGIE), pushing the limits of civic space, despite calls from certain quarters to focus on more ‘pressing’ issues surrounding the constitution and institutional reform. The work of civil society in Myanmar has now gone digital, in response to the global health pandemic, COVID-19, to create safe spaces and solidarity for queer young people who have lost support structures or stuck in unsupportive homes.

While naysayers may be concerned with waiting for the ‘right time’ to broach the subject of LGBTQ rights in Southeast Asia, we may have to accept there is no perfect time, as long as the dominant narratives of ‘criminality’ and ‘deviance’ follow the footsteps of LGBTQ people. In Myanmar, public sentiment varies from person to person, with many taking ‘pity’ on LGBTQ people believing they are born that way because of their actions from their past lives (karma). On the other hand, many gay men and trans people are revered if they are participating in rituals as ‘natkadaws’ (spirit mediums) who practice the art of divination, narrowing the ambit of belonging in the public space.  

LGBTQ people who do not toe the lines of belonging see police operations being run against them in certain ‘hot spots’ across various townships in Myanmar. They are perceived as inherently criminal. 

The argument about whether it is the right time to advocate for LGBTQ rights is heard in Malaysia too. While it may never be the ‘perfect time’ to advocate for the rights of LGBTQ people, it is important now more than ever to be vigilant. Queer folks and allies dread the new ruling coalition with politicians riding on anti-LGBTQ knee-jerk rhetoric.  The fight for reforms and the protection of fundamental human rights must continue under the Federal Constitution and the state’s international obligations to respect, protect and fulfil its human rights duties. 

Impacts of laws that target gender and sexuality

Our research led us to dozens of personal testimonies by LGBTQ people being abused, harassed and arrested by police officers in Myanmar, under the suspicion of committing ‘unnatural sex’, a crime under Section 377 of the Penal Code. This act broadly defines any sexual acts ‘against the order of nature’ (Myanmar courts have yet to define this through case law) as a crime punishable by imprisonment for a term of twenty years or more. Despite its unspecificity, LGBTQ people in Myanmar are its primary target, reminiscent of how 377 (and Syariah laws) are being weaponised against queer communities in Malaysia.

The impacts are also uncannily similar. While the formal use of this law is scarce, many people have been arrested while on dates, stopped while sitting in parks, extorted for money and released before being charged in court. As long as this law is in the books, all LGBTQ people remain at risk of being thrust into the criminal justice system.  We also found that laws regulating police powers inevitably provide the police with extensive ‘stop’, ‘search’ and ‘arrest’ powers for people found outdoors between sunset and sunrise. These laws are disproportionately used on LGBTQ people. 

It is important to recognise that the additional barriers to security and visibility, which exist for LGBTQ people in both Myanmar and Malaysia, is perpetuated by homophobic and transphobic institutions. From our research in Myanmar, LGBTQ people have lost faith and trust in the police and in the courts to deliver justice. Also from our research, we have found no recorded cases of perpetrators being held accountable for harming LGBTQ people. LGBTQ people from less privileged backgrounds will have less access to lawyers, legal advice, community support, and protection from reprisals.

Laws against nature

When confronted with the question of LGBTQ rights, it is not uncommon to find our leaders claiming that LGBTQ rights is a freedom only meant for ‘Western societies’. The widely accepted paradox whereby Southeast Asian states require colonial, antiquated laws to protect modern, Southeast Asian cultural values continues to exempt our governments from eradicating discriminatory laws and practices from the books. 

Our former Prime Minister Mahathir Mohamad was a prolific proponent of Asian Values who famously built his arguments against ‘LGBTQ rights’ on the premise of it being a Western practice, which he believes are exemplified by the West’s ‘disrespect’ for the institutions of family and marriage. This argument is recycled through Cabinet members, each adding on their own odd and outdated perspective on the issue, seen when the former Deputy Prime Minister, Datuk Seri Dr. Wan Azizah Wan Ismail advised LGBT people to not “glamourise” their private lives and to keep their “practice” behind closed closeted doors.

The 20th-century argument utilising Asian Values as a reason to perpetuate poor treatment of LGBTQ people and to undermine human rights should be countered, debunked, and relegated to the past as soon as possible. Professor Holning Lau in his 2011 article ‘Grounding Conversations on Sexuality and Asian Law’ notes a ‘flawed imagination of Asia’ exists in the minds of many, where ‘Asia’ is imagined to be homophobic, regressive, and intolerant of SOGIE rights (sexual orientation, gender identity and expression). He argues that there are ‘misperceptions of the law and misperceptions of culture’, creating a gap of information that will hamper the process of policymaking. 

Has Asia been queer all along? Read more:

If you think queerness is a western thing, this thread has news for you

Are India, Taiwan, Nepal and Pakistan not a part of Asia?

In the past decade, we have seen progressive outcomes from both the courts and Parliaments in Asia, providing the protection of the basic rights of LGBT people. We see the landmark case from the Supreme Court in India 2018, that has its roots in a decade long litigation, continuously mounted by the community and its lawyers. In the 2009 Naz Foundation v Government of NCT Delhi case, the Delhi High Court ruled that Section 377 was unconstitutional, insofar as it criminalised consensual sexual acts between adults and violated equality, privacy, liberty and dignity, international law standards. Meanwhile, in 2017, Taiwan’s Constitutional Court declared that the marriage law was unconstitutional and the constitutional right to equality and freedom of marriage guarantees same-sex couples the right to marriage. The court gave the legislative body time to pass this law, and the bill was passed in May 2019, making Taiwan the first country in Asia to legalise same-sex marriage. 

Nepal more than a decade ago delivered a significant judgment in Sunil Babu Pant v the Government of Nepal and others, uniquely ordering the Government of Nepal to ensure people of diverse identities and sexual orientations could fully enjoy their rights. Pakistan too has developed some progressive jurisprudence in its Supreme Court for civil rights of transgender citizens, and protective legislation for trans people with the Transgender Persons (Protection) Act 2018.

In 2014, Malaysia experienced a landmark ruling that declared laws that target trans women for cross-dressing were unconstitutional. Unfortunately, it was overturned the next year on a technicality. Legal battles for the rights of LGBT Malaysians are ongoing as we speak.

The progress for better treatment of LGBT people in Malaysia is not solely the duty of LGBT activists, but it is part of the larger movement for ending state violence and impunity and the fight to uphold the rule of law.  The road to meaningful, robust social and legal protections for the LGBT community in Malaysia may be a long one, but it is one we must all walk together for the sake of justice and fairness for all.

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Michelle Yesudas is the Senior Legal Adviser at an international non-governmental organisation (INGO) in Myanmar. She currently works on Sexual Orientation and Gender Identity/Expression issues and is part of a research and technical team that produced a legal analysis on the systemic discrimination of LGBTQ people in Myanmar that was launched this year. This report was produced with several partners from Myanmar.

As a Malaysian lawyer, she has worked on strategic litigation cases on trans rights and provided legal aid to the LGBTQ community. She sees the interconnectedness in being biracial, bisexual and bilingual.

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Featured image created by Tarmedi. License: CC-BY-NC-ND 4.0