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Criminalising LGBT relations fosters intolerance, discrimination

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Malaysian authorities should have dropped the case against two women for same-sex relations before their caning on 28 August 2018, Human Rights Watch said.

A court convicted the two on 12 August of violating a state Sharia law that criminalises sex between women and sentenced each to six strokes of the cane and a RM3,300 fine.

The Malaysian government should ban the punishment of caning, which constitutes torture under international human rights law, Human Rights Watch said.

“The … caning of two women is the latest blow to Malaysia’s LGBT community, which had hoped for better protection under the country’s new government,” said Graeme Reid, director of the lesbian, gay, bisexual, and transgender (LGBT) rights programme at Human Rights Watch. “This prosecution and punishment will only fuel the recent wave of homophobia and transphobia in Malaysia.”

Under Malaysia’s Constitution, each state is empowered to enact laws governing offences by Muslims against Islamic precepts. The state of Terengganu, like most states in Malaysia, has outlawed sexual relations between women, or musahaqah. Local media quoted the prosecutor in the case as saying this was the first time women have been caned for same-sex relations in the state.

Caning is considered cruel and inhuman punishment under international law and should be abolished, Human Rights Watch said. The criminalisation of sexual relations between women also violates Malaysia’s obligations under the United Nations Convention on the Elimination of All Forms of Discrimination against Women (Cedaw), which Malaysia ratified in 1995.

At the conclusion of Malaysia’s most recent Cedaw review in March 2018, the Cedaw Committee called on Malaysia to “amend all laws which discriminate against LBTI women, including the provisions of the Penal Code and Syariah laws that criminalise same-sex relations between women and cross-dressing,” and “to prohibit the whipping of women as a form of punishment”.

The case comes at a time when the new government’s position on the rights of LGBT people in Malaysia is under intense scrutiny. On 8 August, the government minister for religious affairs ordered the removal of portraits of a transgender rights activist and an LGBT rights activist from a display of photographs of Malaysians at the Georgetown Festival, citing the government’s policy of “not promoting LGBT rights”.

Deputy Minister in the Prime Minister’s Department Fuziah Salleh defended the action by saying LGBT people are unwanted as “role models for their children”. A mufti, or Islamic law jurist, from Penang, likened LGBT activism to fighting “for the freedom of animals”.

In addition to the discriminatory state Sharia (Islamic) laws, section 377A of the federal penal code, a British colonial relic, outlaws “carnal intercourse against the order of nature”, defined as oral or anal intercourse between a man and another person of any sex, punishable by up to twenty years in jail and a whipping.

Section 377D of the Penal Code also outlaws “any act of gross indecency with another person” – historically intended to refer to same-sex conduct – punishable by up to two years in prison.

“Malaysia’s new government should stand against discrimination and brutality and foster a culture of tolerance and equality,” Reid said. “As part of that effort, it should seek to abolish all laws against same-sex conduct and end the cruel practice of caning once and for all.”

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