Background

Mak Yam revealed that during her younger days, things were very different from now. Transsexuals were a happy lot at that time as they were left to be who they wanted to be. … The police and the Islamic religious authorities had never bothered them. In fact, the police were good to them and accepted them as they were. [1]

Human Rights Watch research in Malaysia elicited similar recollections. Mak Lil, an elderly transgender woman and former sex worker in Kuantan in the eastern state of Pahang, remembered the early 1980s: “There was no violence at that time, and no harassment from the police or the religious authorities.” [2]

Sarah, a 52-year-old transwoman in Kuala Lumpur, said that she faced little discrimination before the National Fatwa Council issued a fatwa in 1982 against sex reassignment surgery: “I came out [as a transwoman] in the early 80s [before the fatwa]. Then, there was not much discrimination. Everything was going well—I seldom received discrimination. Only after the fatwa came out, so many things happened.” [3]

Not all transgender women share such a rosy picture of the past, but what is clear from the historical record is that transgender people have long had a visible presence in Malaysia and, during some periods, have faced significantly less discrimination than they do today. According to anthropologist Michael Peletz, historical texts from the 15th to 19th centuries testify to the existence at that time of “androgynous” priests or courtiers, both male and female:

[T]he evidence indicates the existence in the Malay Peninsula in the late pre-modern and modern era of a pre-Islamic class of male-bodied priests or courtiers, referred to by the term sida-sida … who were said to be involved in ‘androgynous behavior,’ such as wearing women’s clothes and possibly performing tasks generally undertaken by women.

Peletz also finds references to “female sida-sida,” and to “sida-sida and their wives,” suggesting that these individuals included “male- as well as female-bodied persons involved in transgender practices.” [4] Sida-sida and other ritual specialists known as pawing, which included women dressing as men, were reported in Malaysian palaces well into the 20th century. [5]

Joseph Goh, a PhD candidate in gender and sexuality studies at Malaysia’s Monash University, writes:

Trans* persons have long been important figures in the landscape of the Malay archipelago. In the 19^th century, the manang bali or Iban shamans who dressed as women were respectable curers and local leaders. Right up to the 20^th century in the archipelago, many transwomen were royal courtiers. Transwomen village performers were also favourably treated by the Sultan of the state of Kelantan in the 1960s. [6]

Although the ritual roles of transgender people diminished in the 20th century, Peletz found during fieldwork in the 1970s and 1980s that, “normatively orientated Malays still exhibited considerable tolerance and respect for individuals involved in transgendering, assuming they merited tolerance and respect on other grounds as well.” Some transgender people maintained a particular ritual status as mak andam, or “ritual practitioners whose roles include planning weddings and beautifying brides.” [7]

Beginning around 1980, sex reassignment surgery (SRS) was available to transgender people in Malaysia. A team of surgeons performed these surgeries at the University of Malaya Hospital. However, in 1982, the National Fatwa Council learned about the surgeries and issued a fatwa banning SRS. [8] The hospital facilities shut down in 1983, even though fatwas issued by the National Fatwa Council have no legal authority.

In 1987, transgender women in Kuala Lumpur coined the term “mak nyah” to identify themselves, and formed the Federal Territory Mak Nyah Association. In what trans activist Khartini Slamah describes as a “strategic alliance,” the association successfully sought small grants from the Federal Welfare Department to allow transgender women to start small businesses, noting that the department “look[ed] on mak nyahs as a social problem and want[ed] to rehabilitate us as biological men.” The association mobilized transwomen to file complaints against street gangsters and pimps who were violent toward them, and sought to change public perceptions of transwomen as being “only good for sex and entertainment.” After three years, however, JAWI, the Religious Department in the federal territory of Kuala Lumpur, banned the association. [9]

Politicization of Islam and Rising Transphobic and Homophobic Discourse

The political context since the 1980s in Malaysia has been marked by increasing regulation of the body, sexuality, and gender identity, and, in parallel, an increasing Islamization of domestic politics. [10] Mahathir Mohamad of the United Malay National Organization (UMNO), the key party within the Barisan Nasional coalition that has ruled Malaysia since independence in 1957, became prime minister in 1981 and remained in power until 2003.

Under Prime Minister Mahathir, UMNO developed a 1982 policy guideline “for the incorporation of Islamic ethics in governance.” Manifestations of UMNO’s increasingly hardline stance included the introduction of whipping as a punishment for women who engage in “illicit sex” and the attempt to prevent Christians from using the word “Allah.” [11] It is in this context that transwomen reported increasing harassment, particularly from state Religious Department officials.

Between 1985 and 2012, every Malaysian state and federal territory introduced Sharia criminal enactments that included provisions criminalizing “a man posing as a woman” or “a woman posing as a man” (see Appendix I). Malaysia thereby became one of the few countries in the world that explicitly criminalizes transgender people. [12] Further, from 2008 to 2010, seven states issued fatwas against “pengkid,” which roughly translates as “tomboy” or “masculine woman.” The fatwas, which have been gazetted in four states, specifically state that women who have a “masculine appearance or gestures” or a “male sexual instinct” are forbidden in Islam. [13]

In 1998, the Malaysian authorities discovered the power of tainting their political rivals with homosexuality allegations. They arrested Deputy Prime Minister Anwar Ibrahim, who had emerged as a political rival to Prime Minister Mahathir, on charges of corruption and sodomy. [14] One month after Anwar’s arrest, UMNO politicians closely linked to Mahathir formed “The People’s Voluntary Anti-Homosexual Movement,” or Pasrah, which pledged to “shield” the Malaysian people from the “disgusting practice” of homosexuality. [15]

Anwar was convicted of corruption in 1999 and of sodomy in 2000. He spent six years in prison before the Federal Court, Malaysia’s highest court, overturned his sodomy conviction in September 2004. After a brief period of self-imposed exile, Anwar returned to Malaysia and became the de facto leader of the political opposition, soon becoming a thorn in the side of the UMNO government. He was charged with sodomy yet again in 2008, won acquittal in the court of first instance in January 2012, but was subsequently convicted on appeal in March 2014. [16] He has filed an appeal to the Federal Court.

Politics and anti-LGBT sentiment again intertwined when police banned the Seksualiti Merdeka (Sexuality Independence) festival in 2011. LGBT rights activists initiated the festival in 2008, featuring workshops, talks, and performances on sexual diversity and LGBT rights within the broader human rights context. It was held without incident for three years, attracting hundreds of participants, before police banned it, claiming the festival constituted a “threat to public order.” [17] According to one of the organizers, the festival was “collateral damage” in an UMNO smear campaign against Ambiga Sreenevasan, an outspoken political activist and head of a coalition for free and fair elections, who had been scheduled to officiate the 2011 festival in her personal capacity. [18]

An increasingly competitive political field, in which UMNO barely scraped through to narrow electoral victories against the opposition coalition in both 2008 and 2013, has led UMNO to increasingly resort to scapegoating of minorities. [19] The government has also instrumentalized the specter of sexual rights to disparage human rights more broadly. In 2013, Malaysia was evaluated during the Universal Periodic Review at the UN Human Rights Council in Geneva. The Coalition of Malaysian NGOs in the UPR Process (COMANGO), a coalition of 54 human rights groups, made a submission documenting a broad range of human rights violations committed by the Malaysian government, including those based on sexual orientation and gender identity. [20] A coalition of Muslim NGOs objected, accusing COMANGO of “disrupting national peace.” [21] The government’s response was to ban COMANGO, calling it “un-Islamic” due to its support for basic rights for LGBT people, as well as its efforts to highlight violence toward the Shiite community, a minority in the predominantly Sunni Muslim country. [22]

Discourse by government officials, politicians, and religious leaders on LGBT rights has become increasingly vitriolic. In 2012, Prime Minister Najib Razak, who took office in 2009, stated in an event reportedly attended by 11,000 imams and mosque committee members that “LGBTs, pluralism, liberalism ― all these ‘isms’ are against Islam and it is compulsory for us to fight these.” [23] In March 2013, the Ministry of Information, Communication and Culture sponsored a play called “Asmara Songsang” (“Abnormal Desire”), performed in schools and universities around the country, the explicit aim of which was to “warn young people about the perils of being lesbian, gay, bisexual, and transgender.” [24] The following month, Deputy President Muhyiddin Yassin referred to the LGBT rights movement as a threat to Islam, backed by “foreign influences.” [25] In December 2013, an UMNO delegate who was chair of the Johor Islamic Religious Committee stated that, “LBGT exists in the West so that bad people (orang jahat) can be purged, leaving behind only the good people to inherit the earth.” He specifically claimed that transgender people “do not live long.” [26]

Intolerant government rhetoric filters down to the general public, influencing public attitudes toward transgender people and the broader LGBT community. Dr. Teh Yik Koon, the author of the 2002 study of transwomen, told Human Rights Watch: “Their situation being illegal leads to discrimination against them. People rely on the government to tell them what’s right and wrong—especially when it comes to [what is perceived as] a religious question.” [27]

Jina, a 22-year-old transwoman in Petaling Jaya, linked the politicization of LGBT rights and the inaccurate media portrayal of trans people:

There’s a lot of politicization of the LGBT community at the moment. ... We’re not looking for ‘LGBT rights’ in the sense of the Western world, such as same-sex marriage. The issue for trans people is the [lack of] positive media coverage of trans people. A more fair view would also decrease violence.

Jina noted that Malaysian media rarely reports on successful transgender people, citing the example of Jessie Chung, a popular transgender singer and performance artist who is largely ignored by the media. [28]

Sex Work and Double Stigmatization

Many transgender women in Malaysia face a double stigma. They are stigmatized by families, potential employers, government officials, and communities because of their gender identity and expression. And they are widely perceived to participate in sex work, which is stigmatized in Malaysia, regardless of whether sex workers are transgender or cisgender, female or male. Leela, a transgender HIV outreach worker, told Human Rights Watch, “In the media, transgenders are always portrayed as sex workers, even though we have transgender doctors and lawyers.” [39] In fact, while a large number of transgender women do participate in sex work, others work in a wide range of professions: Human Rights Watch interviewed transgender doctors, social workers, HIV outreach workers, hairdressers, makeup artists, cleaners, receptionists, and marketing representatives, among others.

A 2002 study of 507 transgender women in Malaysia found that 54 percent identified as sex workers, and 92 percent had received payment for sex at least once. [40] Although sex work is poorly regarded in Malaysia, many transgender people make an informed and conscious choice to participate in sex work, and a number of the transwomen interviewed by Human Rights Watch were relatively satisfied with this occupation or preferred it over the available alternatives. Others are driven to sex work due to employment discrimination and the lack of economic opportunities in other sectors. One transgender woman told Human Rights Watch that she was trafficked into the sex industry under threat of violence, and escaped after six months. [41]

Malaysian federal criminal law prohibits “soliciting for the purposes of prostitution,” a charge that is sometimes applied to non-Muslim transgender sex workers who are picked up in police raids. [42] Muslim transgender sex workers are usually handed over to the Religious Department officials, as discussed in the next chapter. Sex workers are also arrested under section 21 of the Minor Offenses Act, which criminalizes “indecent behavior,” or section 27, which targets “every prostitute behaving in a disorderly or indecent manner.” [43] Sharia enactments in the Federal Territories and some states, including Kelantan, Kedah, and Malacca, specifically criminalize prostitution, although the laws only apply to “women”—presumably excluding transgender women, who are defined as men under Malaysian law. [44]

Criminalization of Same-Sex Conduct

Both federal criminal law and state Sharia enactments criminalize adult consensual same-sex conduct. These laws have very rarely been enforced, and there are no known cases in which laws against same-sex conduct have been used to prosecute transgender people, although the laws constitute a risk to transgender people because they are widely perceived as homosexual.

Section 377B of the federal Penal Code prohibits consensual anal and oral intercourse between persons of any sex. The maximum sentence for anal or oral rape, 20 years in prison, is identical to the maximum sentence for consensual anal or oral sex. [45]

Sharia enactments in nearly all Malaysian states criminalize both male same-sex conduct (liwat, criminalized in all states but Terengganu and Pahang) and female same-sex conduct (musahaqah, criminalized in all states but Pahang) with sentences of up to three years in prison. [46]

Recent Progress in Trans Activism

Despite challenges, transgender rights activists have made recent progress on several fronts in Malaysia. In 2013, trans activists developed the “Be a Trans Ally” campaign, featuring video testimonies that highlight both the strength and the struggles of trans Malaysians, and distributing educational materials covering subjects ranging from what pronouns to use to refer to trans people, to the importance of creating safe spaces within the health care and education sectors. [47] The organization, Justice for Sisters, conducts regular outreach to communities to sensitize them on trans issues and maintains an active presence on social media. PT Foundation, an HIV/AIDS organization, has invested in training transgender people as peer educators and program coordinators, several of whom are now regionally and internationally recognized professionals in their field.

Outside Kuala Lumpur, too, transgender people have become increasingly visible. In the eastern state of Pahang, mak nyahs working with the Drug Intervention Community of Pahang, an NGO, participated in an Independence Day 2013 parade. [48] In July 2013, an assemblyman in the northwestern state of Penang, Teh Yee Cheu of the opposition Democratic Alliance Party, appointed a transwoman, Hezreen Shaik Daud, as his political secretary. [49] Hezreen is the first openly transgender person working within the Malaysian political establishment. Teh has also sought to establish a transgender welfare committee within state government, with the aim of addressing discrimination against trans people, although he has faced resistance from other state politicians. [50] In May 2014, he withdrew a motion to establish the committee due to lack of political support, although he plans to reintroduce the motion at the assembly’s next session in November 2014. [51]