Eliminate Discriminatory Laws, Practices; End Violence
(Kuala Lumpur) – The Malaysian government should urgently seek the repeal of all laws and regulations that discriminate against transgender people, Human Rights Watch said in a report released today. Transgender people in Malaysia face criminal prosecution under laws that effectively prohibit “cross-dressing” and discrimination in accessing employment, health care, and education.
The 73-page report, “I’m Scared to Be a Woman: Human Rights Abuses against Transgender People in Malaysia,” documents government abuses against transgender people in Malaysia. In research in four Malaysian states and the federal territory of Kuala Lumpur, Human Rights Watch found that state Religious Department officials and police regularly arrest transgender women and subject them to various abuses, including assault, extortion, and violations of their privacy rights. Religious Department officials have physically and sexually assaulted transgender women during arrest or in custody, and humiliated them by parading them before the media.
Human Rights Watch conducted field research in Malaysia in January 2014 in four states – Selangor, Negeri Sembilan, Penang, and Pahang – and in the Federal Territory of Kuala Lumpur. Human Rights Watch interviewed 66 people, including 42 transgender women and 3 transgender men; lawyers; HIV outreach workers; a criminologist, a psychologist, and a medical doctor; a representative of the federal Department of Islamic Development (JAKIM) and the governmental human rights commission (SUHAKAM); and an elected state assemblyman. Human Rights Watch contacted the Ministry of Health and the Prison Department about policies affecting transgender people, but neither agency responded.
“Transgender people in Malaysia risk arrest every day they step out of their door simply because of the way they express themselves,” said Boris Dittrich, lesbian, gay, bisexual and transgender (LGBT) rights advocacy director at Human Rights Watch. “The authorities shouldn’t be harassing and punishing people just for being who they are.”
Muslims, who according to government statistics make up about 60 percent of Malaysia’s population, are subject to state-level Sharia (Islamic law) ordinances, in addition to the federal criminal law. Since the 1980s, every state has passed Sharia criminal enactments that institutionalize discrimination against transgender people. All 13 Malaysian states prohibit Muslim men from “dressing as women,” while three states also criminalize “women posing as men.” The laws, enforced by state Islamic Religious Departments, do not define what constitutes transgender dressing or posing.
Victoria, a transgender woman in the state of Negeri Sembilan, said she was arrested in 2011 by Religious Department officials, who stripped and sexually assaulted her: “They were rough. One of them squeezed my breasts. I was completely humiliated. …They stripped me completely naked. One of them took a police baton and poked at my genitals. Everyone was looking – the men [Religious Department officials], as well as the women. They took photos of my naked body.”
Many transgender women who are arrested are fined and forced into “counselling” sessions, where officials from the state Islamic Religious Department lecture them on “being a man.” Because the national government’s Registration Department routinely rejects transgender women’s applications to legally change their gender, Muslim transgender women are vulnerable to repeated arrests. One transgender woman told Human Rights Watch she had been arrested over 20 times.
Transgender women told Human Rights Watch that civil police are sometimes directly involved in arrests, in some cases justifying their actions on a vague provision in the federal criminal code that prohibits “public indecency” and applies to people of all religious backgrounds. Police also accompany Religious Department officials on raids against Muslim transgender women.
“Malaysian authorities frequently abuse transgender women at the expense of their dignity and in violation of their basic rights,” Dittrich said. “It’s pretty clear that Religious Department and other officials feel they can do whatever they like with transgender women and no one will hold them accountable.”
While accurate figure totals do not exist for the number of transgender women sentenced to prison terms, some of the transgender women Human Rights Watch interviewed said they had been convicted and sent to prison for terms ranging from four months to three years. Several of them were placed in male wards, where they face sexual assault from both guards and other prisoners.
Erina, a transgender woman who was imprisoned on an assault charge and held in the men’s ward at Sungai Buloh prison from 1998 to 2000, said she was forced to have sex without condoms with the warden “about two times a week,” and with male prisoners. “I complained to the high officers, [and] the sergeant, but they did not take action,” she said.
Transgender people in Malaysia also face discrimination and abuse from other state officials and agents, including public sector health workers, teachers, and local government administrators. When she sought treatment for a fever at a government hospital, “the nurse didn’t want to touch me,” said Sharan, a transgender woman in Kuala Lumpur. “I felt as if I have a disease – if you touch me, are you going to become transgender as well?”
Official discrimination is compounded by other forms of discrimination for which the government provides little or no protection, Human Rights Watch found. Transgender people have been fired from their jobs, evicted from their homes, physically and sexually assaulted, and denied access to health care because of their gender identity. Police routinely refuse to receive complaints of violence against transgender people by public officials or private individuals, or to conduct serious investigations, transgender women told Human Rights Watch. In some cases, police even threatened transgender complainants with arrest or sexually harassed them.
While sex reassignment surgery was once available in Malaysia, a rise in conservative Islamic influences led the National Fatwa Council in 1982 to issue a fatwa banning such surgery. Although the council’s fatwas do not have legal authority, Malaysian doctors have stopped performing the procedure.
The federal government’s Registration Department has since refused dozens of requests by transgender people to change their names and gender markers on their identity cards. This includes those who are on hormone replacement therapy or who have undergone sex reassignment surgery outside Malaysia – most often in neighboring Thailand – leaving them in legal limbo.
Transgender women in Malaysia have filed a ground-breaking court case challenging the Sharia law in Negeri Sembilan state, which prohibits them from expressing their gender identity. The state’s Religious Department has used this law repeatedly to arrest transgender women – most recently, in a mass arrest of 16 transgender women at a wedding party on the night of June 8, 2014. Three transgender women have asked the court to strike down the law, which says that “any male person who in any public place wears a woman’s attire or poses as a woman” is violating the law.
The petitioners contend that the Sharia law violates provisions of the Malaysian constitution that guarantee rights to freedom of expression, freedom of movement, and equality. The Putrajaya Court of Appeal is expected to issue its decision on November 7.
The government-appointed National Unity Consultative Council (NUCC) is drafting a National Harmony and Reconciliation Bill that some council members have indicated will prohibit discrimination on the grounds of gender, including sexual orientation and identity. However, no final draft has been presented to the government, much less debated in parliament.
Malaysia’s laws against “cross-dressing” are contrary to the internationally guaranteed rights to non-discrimination, privacy, and freedom of expression and movement recognized by the Universal Declaration of Human Rights, whose provisions are considered reflective of customary international law. The abusive treatment of transgender people by Religious Department authorities and the police violates prohibitions against arbitrary arrest and cruel, inhuman, and degrading treatment. Many of these international legal protections can also be found in Malaysia’s federal constitution, such as the rights to freedom of expression (article 10), equal protection (article 8), and freedom of movement (article 9).
“Malaysia urgently needs to scrap laws that discriminate against transgender people, adhere to international rights standards, and put in place comprehensive non-discrimination legislation that protects them,” Dittrich said. “It is high time that the authorities recognized that transgender people have the same rights as all Malaysians.”
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