IX

International and Malaysian Law

Malaysia is not a party to many of the core international human rights conventions that countries around the world have widely ratified[188], including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[189] Malaysia has nonetheless ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),[190]  and the Convention on the Rights of the Child (CRC).[191]

As a United Nations member state, Malaysia has affirmed acceptance of the Universal Declaration of Human Rights, whose provisions are broadly accepted to reflect customary international law. [192]  The Universal Declaration of Human Rights upholds the fundamental rights and freedoms that are due to every individual on the basis of their being human: “All human beings are born free and equal in dignity and rights” and are protected from discrimination, arbitrary interference in privacy, family and home, arbitrary arrest and detention, and torture and ill-treatment.[193] Everyone also has rights to freedom of expression, association, peaceful assembly, religion and movement.[194]

The UN Committee on the Elimination of Discrimination against Women, which monitors government compliance with CEDAW, has stated in its General Recommendation on core obligations under the treaty that:

The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste, and sexual orientation and gender identity.
Discrimination on the basis of sex or gender may affect women belonging to such groups to a different degree or in different ways than men. States parties must legally recognize and prohibit such intersecting forms of discrimination and their compounded negative impact on the women concerned. They also need to adopt and pursue policies and programmes designed to eliminate such occurrences.[195]

Under the CRC, governments are obligated to prevent discrimination against children on the grounds of sexual orientation.[196] Although the Committee on the Rights of the Child has not issued recommendations specifically related to gender identity, the treaty prohibits discrimination on any grounds.[197]

The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity—a set of principles developed by international human rights experts and endorsed by the UN—encourage countries to consider measures that would allow all people to define their own gender identity.[198]

In Malaysia, responsibility for harmonizing Malaysia’s domestic laws with its obligations under international law rests with the International Affairs Division, an entity within the Attorney General’s Chambers.[199]

Malaysia’s federal constitution prominently features a chapter on “fundamental liberties.” Article 4 protects against arbitrary arrests. Article 8 states that “All persons are equal before the law and entitled to the equal protection of the law,” including on the basis of gender. Other fundamental freedoms protected by the constitution include freedom of expression and association (article 10), freedom of religion (article 11), and freedom of movement (article 9). The constitution provides parliament broad authority to enact laws to restrict expression, association, and religion on the basis of “morality.”[200]  The UN Human Rights Committee has repeatedly said that permissible restrictions on fundamental liberties must be appropriate to achieve their protective function; be the least intrusive means to achieve the desired result; and be proportionate to the interest to be protected.[201]

Under Malaysia’s constitution, Sharia law, as state law, is inferior to the constitution and cannot be put forward as justification for the violation of constitutional rights,[202] nor can states usurp the role of parliament to limit fundamental rights.[203]

Despite its international obligations and constitutional guarantees protecting equality and freedom of expression and other basic rights, Malaysian law and policy discriminate against transgender people on numerous grounds:

  • State cross-dressing laws violate recognized rights to equal protection and freedom of expression, and impose undue restrictions on rights to privacy and freedom of movement for transgender people.
  • The risk of arbitrary arrest and detention constitutes part of the daily reality of many transgender people.
  • Those who participate in LGBT organizations and gatherings such as Seksualiti Merdeka (Sexuality Independence festival) have seen their rights to freedom of association and peaceful assembly violated. No transgender association has attempted to register since the dissolution of the Federal Territory Mak Nyah Association in 1990.
  • The government has failed to take meaningful steps to address discrimination on the basis of gender identity, in violation of CEDAW. This includes discrimination in the health care sector, employment, and education.
  • The government has not adopted measures set out in the Yogyakarta Principles to “fully respect and legally recognise each person’s self-defined gender identity.”

Malaysia should remedy these deficiencies in the application of national and international law to transgender people by adopting the recommendations set forth in the following section.