A promising court case in Malaysia challenging the ban on gay sex: a cause for hope?

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In 2018, a man was arrested in Selangor, one of Malaysia’s 13 states, for allegedly attempting gay sex — a charge which he denies. The man, who has not been named for privacy reasons, has filed a lawsuit against the Selangor Shariah High Court for breaching the Malaysian constitution. 

The case will be heard in Malaysia’s Federal Court and will argue that the Selangor state does not have the right to enforce an Islamic ban on gay sex, because gay sex is already banned under Malaysian civil law. This is because Malaysia, a predominantly Muslim country, operates under a dual-track legal system which has civil laws alongside Islamic criminal and family laws which are only applicable to Muslims.

It is therefore no surprise that a recent study has ranked Malaysia’s capital, Kuala Lumpur, as one of the top 10 worst cities to be LGBTQ+

Malaysian civil law has already outlawed gay sex which is punishable with 5 to 20 years in jail under Section 337 of the penal code (a British colonial-era law which criminalises homosexual activity). Although this law of ‘intercourse against the order of nature’ is rarely enforced, Islamic laws have been enacted to target Malaysia’s gay community – often enforcing harsh physical punishments. 

The gay community in Malaysia already faces unprecedented discrimination and prejudice from the government; for example, in 1994, the government banned LGBTQ+ individuals from appearing in state-controlled media and, more recently in 2010, the Film Censorship Board announced it would only allow the portrayal of homosexual characters in films if these characters ended up repenting or dying.

The case might even pave the way for campaigners to challenge other Malaysian states

The government also endorses gay conversion therapy and government representatives have made openly homophobic comments; the current Prime Minister, Mahathir Mohamad, stated at the Cambridge Union, “I don’t understand gay marriage. In Malaysia there are some things we cannot accept” and that same-sex marriage is a “regressive way of thinking”. It is therefore no surprise that a recent study has ranked Malaysia’s capital, Kuala Lumpur, as one of the top 10 worst cities to be LGBTQ+. 

Consequently, this case has been described as a landmark test case for gay rights in Malaysia and, if successful, its impact on the gay community in Malaysia would be monumental: the claimant’s lawyer has even stated that if they win ‘state law will be struck down and [that] the criminal charges in the shariah court should be dropped’. The case might even pave the way for campaigners to challenge other Malaysian states and local authorities for wrongfully arresting members of the LGBTQ+ community.

More broadly, this case would mitigate the trend towards enacting harsh legislation that targets the LGBTQ+ community. Certainly, this case is a clear cause for hope for the Malaysian LGBTQ+ community when the hearing take place later on in the year.

Image: Dennis S. Hurd via Creative Commons

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