As part of our 2019 thematic report, we are interviewing civil society activists and leaders about their experiences of backlash from anti-rights groups and their strategies to strengthen progressive narratives and civil society responses. CIVICUS speaks to Thilaga Sulathireh of Justice for Sisters and Seksualiti Merdeka about LGBTQI rights in Malaysia and the ways in which state and non-state forces are working together to deny rights.
Can you tell us about your work and the status of LGBTQI rights in Malaysia?
I work with Justice for Sisters and Seksualiti Merdeka. Justice for Sisters is a network that primarily works for the human rights of trans people in Malaysia, and we provide legal support, do human rights documentation, engage in national policy work and undertake advocacy with the United Nations (UN) to highlight human rights violations. At Seksualiti Merdeka, we recently launched a website, Queer Lapis. We do capacity strengthening and content production. The work we do is very much grounded in feminist, intersectional principles, and from a queer perspective.
The human rights of LGBTQI people are definitely regressing in Malaysia. Malaysia historically inherited section 377 of the Penal Code, which criminalises ‘unnatural’ sexual acts, from British colonial rule. Section 377 has been amended several times, and the last amendment in 2017 resulted in the imposition of mandatory whipping as a punishment for consensual carnal intercourse deemed unnatural. The law is gender-neutral but it is used in political ways. As a result, people see it as a law that applies to gay people. We also have shariah laws in three states of Malaysia, introduced between 1995 and 2013, that penalise same-sex relations and posing as a woman or man. Unlike Section 377, these laws directly criminalise sexual and gender identity. The implementation of these laws varies according to state, but amongst them, the law against posing as a woman is most actively used.
Has the situation for LGBTQI people changed in recent years?
In recent years, arrests and raids made under these laws have decreased, because of a legal challenge that took place between 2010 and 2015. An appeal went through the different stages of courts. We got a negative decision in the High Court and then won in the Court of Appeal, which upheld that the law was unconstitutional, but then the decision was overturned by the Federal Court. But because of the activism around this case, the number of arrests significantly reduced.
At the same time we saw a shift in tactics by the government’s Islamic Department, which has adopted a softer evangelical approach towards LGBTQI people. They saw that heavy prosecutions were giving the department a bad image, so there was a shift towards a softer approach, around promoting the ‘rehabilitation’ of LGBTQI people. There is a narrative that LGBTQI people need help in returning to the ‘right path’.
We saw an increase in state-funded ‘rehabilitation’ activities in this decade, at the same time that Seksualiti Merdeka, which used to organise festivals, was banned in 2011. The government decided it needed to increase its response to this growing LGBTQI movement. This gave rise to more groups that promote and provide ‘rehabilitation’ or ‘conversion therapy’. We have seen more anti-LGBTQI campaigns in universities and on social media. We have seen more concerted efforts overseen by the Ministry of Religious Affairs, which sits under the Prime Minister’s office, and which launched a five-year action to plan to address the ‘social ills’ caused by LGBTQI behaviour. This brought together most ministries.
As well as the use of various laws and increased state funding for anti-LGBTQI activities, we have seen a heavy-handed response to the freedoms of association and assembly of LGBTQI people. For example, when LGBTQI people have taken part in women’s marches, their organisations have been investigated.
Did anything alter as a result of the May 2018 election, which saw the first change of government in Malaysia’s independent history?
The 2018 election has historic in that it changed the administration, but the government has adopted and continued the same policies. Nothing has changed from the LGBTQI perspective. We still see the same amount of resources going into policies that treat LGBTQI people as a problem.
There is also an ongoing struggle between the new government and the former ruling party that is now in opposition, and this is used to justify the lack of change for LGBTQI people. Right after the election a lesbian couple was arrested in the state of Terengganu, which is an opposition-controlled state. They were charged for sexual relations between women and caned openly in the public court. After this there were also two cases of caning of sex workers.
So there is all this moral policing. Homophobia is real, but there is also a political tussle and mind games being played over who are the guardians of Islam and race. In this crossfire LGBTQI issues and people become politicised.
Who are the main groups attacking LGBTQI rights in Malaysia?
All the groups attacking LGBTQI rights use evangelical language, similar to the right wing in Europe or the USA. They reject the universality of human rights, are nationalistic, oppose pluralism and diversity in many ways, prioritise a particular race or religion and support ‘conversion therapy’. Some of the state-funded activities towards LGBTQI people are carried out by these groups.
There are celebrity preachers who post social media videos encouraging people to troll LGBTQI people and those who post LGBTQI-related content. There are also individuals who make homophobic comments and conservative student groups who organise against LGBTQI people. But they are less physically aggressive than those in Europe and the USA. They are often careful not to insult LGBTQI people out of fear of giving Islam a bad name.
There are also ethno-nationalist groups, with the purpose of protecting Muslims and ethnic Malays, that also engage in anti-LGBTQI activity. These don’t adopt an evangelical approach. They engage more in reporting LGBTQI people to the police, and sometimes physical intimidation and violence. At the last women’s march, we saw some of these groups physically intimidating participants. They also issue statements and have an active social media presence.
Then there are groups that call themselves Islamic non-governmental organisations (NGOs), some of which come together under a coalition of Islamic NGOs that participate in the Universal Periodic Review (UPR) process of the UN Human Rights Council (UNHRC). These include groups that use more rights-oriented language, given that they engage in the UPR process, and particularly use the language of religious rights. They position what they call the ‘rehabilitation’ of LGBTQI people as consistent with these religious rights. They also cite examples such as the case of a bakery in the USA that was taken to court for refusing to provide a cake for a same-sex wedding to support their arguments for religious rights. Some of these are groups of doctors, lawyers and academics, and they make pseudo-scientific and legal arguments against LGBTQI rights. Some of these Islamic NGOs also provide services, and as such are involved in the government’s ‘rehabilitation’ programme.
Within civil society, there is a tension between groups that support the universality of human rights and those that oppose it. Between those that promote pluralism and liberalism and those that oppose these. Between those that support LGBTQI rights and those that talk in terms of ‘rehabilitating’ LGBTQI people.
How do these tensions play out around civil society’s engagement at the international level?
Some of those Islamic NGOs engage in policy spaces. If LGBTQI CSOs attend a government consultation on the UPR, they share the space with these.
The UPR process – and UN processes more generally – offer a key site of contestation between these two camps. The second UPR cycle in 2013 was seen by critics as an attempt by civil society to push for the recognition of LGBTQI rights and destabilise the position of Islam in the Federal Constitution. There was a lot of pushback. And then in the third UPR cycle in 2018, these groups participated in the process and claimed space. Some of the recommendations of this group were included in the report compiled by the UNHRC.
When the Government of Malaysia tried to ratify the International Convention on the Elimination of All Forms of Racial Discrimination and the Rome Statue of the International Criminal Court, there was a lot of pushback from these groups and attempts to mobilise Muslim people against ratification. The government pulled out of ratifying on the grounds that it would affect the position of Islam and could offer an entry point to the recognition of LGBTQI rights.
How do different groups that oppose LGBTQI rights connect and receive support?
After the corruption scandal that led to the ruling party losing the election, ethno-nationalist groups are no longer as closely linked to political parties as they used to be. I suspect now they are mostly self-funded. With Islamic NGOs, I suspect they receive some foreign funding. Some have a presence outside Malaysia as well. There is an umbrella group, ISMA (Malaysian Muslim Solidarity), which apparently has an office in Germany.
We also believe some groups receive state funding for their participation in the government’s anti-LGBTQI programme. When a colleague raised the issue of state-sponsored violence against LGBTQI people at a UPR meeting, this created a lot of protest from Islamic NGOs, including those linked with ISMA, who demanded an apology and retraction. The small organisations that are providing ‘rehabilitation’ services also mobilised in their support, making quite clear the connections between groups receiving state funding to provide services and Islamic NGOs advocating against LGBTQI rights.
How is progressive, rights-oriented civil society trying to respond?
In the last few years LGBTQI groups are also pushing back and being more organised. The coalition of human rights organisations that participated in the UPR process has also tried to engage with Islamic NGOs and tried to increase engagement by pro-human rights Islamic organisations. They had some success in the UPR process in getting some groups to recognise the discrimination LGBTQI people face. Now there are more civil society groups that are countering arguments against universal human rights online, and more actions to communicate human rights messages in popular ways and in different languages. LGBTQI groups are working on communication strategies. We need this because we face overwhelming misinformation about LGBTQI people.
LGBTQI groups recognise that these issues aren’t restricted to Malaysia alone. We see a lot of tension at the UN level and realise these issues are ongoing, with states pushing the adoption of problematic language. For example at the Commission on the Status of Women in 2019, language about sexual orientation and gender identity was dropped because of pushback from conservatives. This is a global issue. Civil society everywhere is dealing with these challenges. So how can we come together and strategise around this? How can we do global activism better?
We need to make sure there is diverse representation in these international forums. We need to have global solidarity to push back on attacks on rights.
Because there’s a religious dimension to this, and because Islamophobia is on the rise, we need also to be careful when talking about these issues not to encourage more Islamophobia. We need to have more conversations about how we address intersectional forms of oppression and also give spaces for Islamic groups to participate in processes that help address Islamophobia. This is something that as civil society we need to be sensitive to.
Civic space in Malaysia is rated as ‘obstructed’ by the CIVICUS Monitor.