On 14 May 2020, the Federal Court granted leave to hear the constitutionality of Section 28 of Shariah Criminal Offences (Selangor) Enactment 1995. In light of this case and the ongoing LGBT pride month, I have decided to write this article as a personal observation.
The false narrative that LGBT is from the west
We are no strangers to hearing strong opposing comments alleging that LGBT is a lifestyle from the west.
Addressing the elephant in the room, Malaysian trans man Dorian Wilde has compiled a thread on queer history in Malaysia (then Malaya). It turns out that queerness can be a uniquely local phenomenon. We used to have mak yong performers in Kelantan and mak andams who were involved in weddings and beautifying brides. There were also Malay androgynous priests aka sida-sida who served as palace guardians in Negeri Sembilan, Kelantan and Johor way back in the 15th century. Do note that in those times, Islam was already widely practised, as the religion has spreaded across Malaya as early as the 15th century.
Suffice to say, gender and sexual diversity used to exist in Malaysia without being labelled as an influence from the west or against ‘Asian values’.
So why do we think LGBT is western ideology?
Perhaps it is due to the term “LGBT” which came from the west, their social movement, and their far-reaching media.
However, a quick search on the web shows British sexologist Havelock Ellis (1859-1939) used to describe people who are attracted to the same gender, and people with gender identity or expression contrary to their sex assigned at birth as “sexual inverts”. The term “gay” only emerged as a underground term in the 1960s. Historically, it was loosely used as a term for all LGBTQ+ identities. The usage of the word only narrowed down to describe people attracted to the same gender in the 1990s when LGBT movements became visible.
What does this mean?
The point I’m trying to make is that queer people exist and have existed all across the globe – queerness is not something that emerged recently ‘from the west’.
Nonetheless, something to keep in mind – the dominant narrative today seems largely based on the western narrative (like how I am using the term LGBT here), but each culture has its own language and representations of what we describe as LGBT today.
Moreover, the ‘western terms’ are not enough to represent the diverse labels, identities, behaviours or practices of every culture, but we humans are limited by the languages we learn. We only try to make sense of cross-cultural experiences with the languages we are familiar with, which would inexorably be tainted or restricted by the cultures and experiences we call our own.
So what did ‘the west’ bring us?
That’s it ! s.377 in our Penal Code. Referring to Malaysiakini, s.377 is not solely a piece of legislation to prohibit a sexual act, it is part of a broader framework of morality laws from the British. After all, England in the Victorian era was hardly queer-friendly – heterosexuality was naturalized and normalized; while other sexual behaviors and gender presentations were labeled perverted. But they have moved on and anti-LGBT sentiments in our tanah air evolved.
From the 1980s, the concept of Malaysia being an Islamic state emerged. Quoting lawyer Lim Seng Heng, “[d]emands by Islamic state proponents and activists as well as the political responses of Umno set the stage for a unique form of Malaysian-style Islamisation and the erosion of the basic structure and character of the Malaysian polity”. It comes to no surprise then that Syariah laws were gradually enacted across Malaysia post-1985, with provisions criminalizing ‘unnatural sex’. There began a race to defend the sanctity of Islam.
Now that there are laws targeting consensual sexual relations between the same gender, what about laws targeting gender identity and expression?
Laws that target trangender people
Based on a report by Human Rights Watch, sex reassingnment surgery (SRS) used to be available in Malaysia. A well-known hospital that performed these surgeries was our very own University of Malaya Hospital. This came to an end when the National Fatwa Council issued a fatwa prohibiting SRS in 1982. Although said fatwa has no legal authority, the hospital facilities were shut down in 1983.
Syariah laws that target transgender people were enacted the same time as Syariah laws that target consensual ‘unnatural sex’. In short, all 13 states and the federal territories of Malaysia have laws criminalizing trans women; with Sabah, Pahang and Perlis criminalizing trans men. Some states require an additional “immoral purpose” as an element of the offence; whereas some states criminalize the mere act of dressing as the ‘opposite gender’ in any public place. Nevertheless, the essence of the law is to criminalize gender identity and expression, as one could interpret the very act of ‘dressing as the opposite gender’ as immoral.
With great relief, there is no civil law that targets transgender people. Nonetheless, with the spirit of Seksualiti Merdeka, “If one of us ain’t free, none of us are!”, my empathy extends to my gender nonconforming and trans Muslim neighbours – I strongly oppose the existence of these laws.
It’s not only the law! There are state initiatives designed to reach out and “rehabilitate” us
Justice for Sisters has laid out the evidence of state-sponsored violence and discrimination against LGBT persons in Malaysia. They consist of publications; videos; seminars; an app that provides resources and support for self-rehabilitation; Mukhayyam, a rehabilitation camp for LGBT persons. There was even a 5-year Action Plan to Curb Social ills [LGBT behaviour] 2017-2021 which Jakim proudly posted on their Facebook.
According to a stakeholder report tendered for the UN Universal Periodic Review in 2018, anti-LGBT initiatives led by the Department of Islamic Development Malaysia (JAKIM) escalated since 2012.
Phew. The state is really going out of their way to “cure” us, with taxpayers’ money! Wouldn’t it be better to allocate those funds for education in rural areas or the urban poor instead, especially now that online learning is becoming the new norm?
Wrapping it up
So… here we are in contemporary Malaysia, still stuck in pathologizing sexual and gender diversity. The consequence of this misinformed perspective is severe as it dehumanises LGBT people into a mere diseased population that must be cured. Such views cause long-term harm to a person’s self-esteem and mental health, at the same time reinforce self-hatred and social alienation.
As a gender nonconforming person, I vouch for the harmful effects of this notion. Spread the message – we are not an issue to be solved, an illness to be cured. Our existence is normal, natural, and part of the diversity on Earth.
Check out part II of this series here.
Elaine is a CLP student graduated from the University of Essex, UK. They have an interest in human rights and are often fascinated by the multiple facets of human rights. They believe that queer people deserve equal treatment and opportunities, which unfortunately are not granted in many countries including their own.
* This is the personal opinion of the writer and does not necessarily represent the views of ASASIkini.