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OutRight Action International formerly known as International Gay and Lesbian Human Rights Commission

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Transgender Women’s Constitutional Challenge To Sharia Law Fails in Malaysia

Grace Poore, Program Coordinator for Asia and the Pacific IslandsBy Grace Poore
Regional Program Coordinator for Asia and the Pacific Islands, IGLHRC

Many countries in the Southeast Asian region are incrementally shifting on lesbian, gay, bisexual and transgender (LGBT) people’s rights:

  • Vietnam’s Minster of Justice said publicly that rights of same-sex married couples should be recognized.
  • The Philippines Supreme Court has ruled that an LGBT party had the right to participate in national elections.
  • A Singapore Appeals Court ruled that the constitutionality of Section 377A of its Penal Code needs to be examined because it discriminates against gay men.
  • Thailand has long been known as the place to go for gender reassignment surgery.
  • Indonesia’ s Parliament will soon decide whether to appoint the first openly gay man as commissioner on its National Human Rights Commission.

The Malaysian government however continues to stubbornly reject the rights of LGBT people. This position reverberates throughout state institutions, encouraging hostility, discrimination, and abuse by state and religious authorities.

In October, Judge Siti Mariah Ahmad, of the high court of Seremban in Negeri Sembilan, one of Malaysia’s thirteen states, struck down a first-ever constitutional challenge brought by four Malay transwomen who sought the court’s protection for being unfairly targeted by Article 66 of the Negeri Sembilan sharia law.

Mohammad Juzaili Mohammad Khamis (24), Shukor Jani (25), Wan Fairol Wan Ismail (27), and Adam Shazrul Mohammad Yusoff (25) work as bridal makeup artists, and identify and dress as women. In August 2012, they applied for judicial review of Article 66, which criminalizes men “who dress in women’s clothes and behave like women in public.” They claimed that it violated their rights under Articles 5, 8, 9, 10 and 4 of the Malaysian federal constitution, which guarantees personal liberty, nondiscrimination, freedom of movement, freedom to express one’s identity, and supersedes any local state law that challenges the federal constitution.

Their lawyer argued that Article 66 was unconstitutional because it penalized individuals for “an attribute of their nature that they did not choose and cannot change.”

Judge Siti Mariah, who heard the arguments in the judicial review, disagreed. In her decision, she said, “The undisputed facts are that the applicants are born as males, they are male to female transsexuals, and the evidence of the psychiatrist is that they have jiwa wanita (soul of a woman)… Section 66 is part of the teaching of Islam and the applicants are Muslims. They cannot be exempted from it.”

PT Foundation, an HIV/AIDS organization in Malaysia, reports there are 10,000 mak nyahs (the local term for male transsexuals), in the country. Seventy to eighty percent of mak nyahs are Malay and Muslim while the remaining twenty percent are minority ethnicities. Most mak nyahs do not have gender reassignment surgery because it’s too costly and requires travel outside the country. They fear too that their families will not carry out the Muslim burial rites if they are not viewed as a man or a woman.

Malaysian rights advocate, Thilaga, working in the Justice for Sisters campaign for the rights of mak nyah, says, “Transgender people don’t report violations by police or religious officers because they don’t expect justice. Often, they don’t know their rights and lack resources to go to court to fight charges.” The four applicants in the Negeri Sembilan case attest to this. Mohammad Juzaili was detained four times in 2010, charged three times, convicted twice and fined 1700 Malaysian ringgit ($550 US); Adam Shazrul was arrested twice, convicted once, and fined 800 ringgit ($260 US); Shukor Jaini and Wan Fairol were each detained twice.

Muslim mak nyahs can face up to six months in prison from Malaysian sharia courts.  They are sometimes forced to attend Islamic religious classes where they are pressured to reform and give verbal assurances that they will stop being trans. They are particularly vulnerable to routine arrest and penalized by police and Islamic religious officers who verbally humiliate, physically and sexually abuse them while in custody.

Non-Muslim mak nyahs, while not subject to sharia laws, can be arrested and convicted for “disorderly or indecent behavior,” with penalties ranging from 25 to 100 ringgit ($10- $30 US) and two weeks to three months in prison.

During the August hearing, Judge Siti Mariah, visibly disturbed by reports of custodial abuse of the applicants, questioned the representatives of the state department and Islamic Affairs department about the way the applicants were treated. She also questioned the definition of public space, saying, “the moment they step out of their house, it’s public space,” suggesting that religious officers were using sharia law to target the mak nyah community. She questioned if Article 66 applied to the applicants “because they are not men, neither women.”

In her decision last week, Judge Siti Mariah remarked, “The Islamic Religious Department needs to be ‘lebih berhemat’ (more professional),” instructing the Department to work with PT Foundation “to give counseling to transsexuals.”

If we are to better protect the human rights of LGBT people in Malaysia, a far more explicit warning must come from the courts. The Negeri Sembilan Islamic Religious Department should be charged to investigate, prosecute and convict its own religious officers for acts of verbal, physical, mental and sexual abuse against those in their custody, for supposedly breaking morality laws.

Sharia judges across Malaysia must hold accountable Islamic religious officers (and police officers subject to sharia courts) who misuse their authority, take advantage of people’s vulnerabilities, humiliate them, and mistreat with impunity those they are hired to protect—including lesbian, gay, bisexual and transgender people.

For more on mak nyah experiences, see Nisha Ayub’s presentation (pdf) at the International Gay and Lesbian Human rights Commission panel at the 2012 Creating Change conference.

Grace Poore, the author, can be reached at gpoore@iglhrc.org

Indonesian Government Questioned About LBT Rights Violations

By Grace Poore
Regional Program Coordinator for Asia and the Pacific Islands

Women’s human rights defenders from Indonesia arrived in New York this week to report to the Committee for the Elimination of Discrimination Against Women (CEDAW) about flagrant violations experienced by women and girls in Indonesia across all sectors of society – female circumcision, unsafe abortions, forced sterilization of minority women, marital rape, polygamy, weak implementation of the domestic violence law, police abuses, abuses by domestic worker recruitment agencies, failure to grant reparations to women sexually violated during conflicts with the Indonesian military and police forces, judicial disregard for violence and discrimination against women, rampant abuses against women migrant workers, and many more.

Yet, violence and discrimination against lesbians, bisexual women and transgender (LBT) women was not on the agenda. The spread of intolerance by religious fundamentalists had driven a wedge within the Indonesian women’s movement. Except for one 145-page shadow report that mentioned sexual orientation and gender identity (SOGI) once, LBT people were invisible. Even Komnas Perempuan, the National Commission of Women was reluctant to raise LBT issues. As one Commissioner explained, “The fundamentalists are saying that when we push for women’s rights we are pushing for same sex marriage. So if we bring up LBT, it will weaken our advocacy.” Another Commissioner assured me, “We can raise the LBT issue at the next CEDAW session.” But that would be five years down the road!

Sri Agustine, director of Ardhanary Institute, a national LBT organization in Indonesia admits, “When I arrived in New York, I was pessimistic because I was the only one from my organization, and the other NGOs [non-governmental organizations] did not want to mention LBT issues because [other] women’s issues were urgent. But I’m a woman also.”

L to R: Sherlina Nageer from Guyana, Grace Poore from IGLHRC, Dorathy Benjamin from IWRAW Asia Pacific, Sri Agustine from Ardhanary Institute. (Photo courtesy of Ardhanary Institute.)

Women’s NGOs Exclude LBT Issues

Since 2000, LBT people in Indonesia have been part of the women’s movement, fighting for equality for all Indonesian women. Yet the CEDAW Convention does not apply to LBT people because LBT rights are not seen as women’s rights by the Indonesian state. This attitude is in part due to the resistance of women’s NGOs to recognize the multi-dimensional discrimination and “layered violence” that LBT people face for being women and also because of their sexual orientation and gender identity.

Agustine was pressured not to make any statements about LBTs to the CEDAW Committee. It saddened me to see how the forces of religious extremism had managed to compartmentalize advocacy and silence even those who were allies – allies who quietly supported LBT people but publicly could not afford to be associated with LBT rights.

The International Gay and Lesbian Human Rights Commission (IGLHRC) was aware that in Indonesia, fundamentalist thugs were calling up LBT groups and leaving threatening telephone messages, stalking LBT activists, violently disrupting human rights workshops and film festivals, halting conferences, using the media to incite violence against LBT people, and posting stickers on restaurant windows and banners in public spaces that said, “Destroy Gays and Lesbians.” This climate of hate and intolerance in the name of religion and morality has grown steadily since 2008 and exposed the LGBT community in general to vigilante attacks, police complicity with attackers, curbing freedom of association and assembly, stifling freedom of expression, and eroding LGBT people’s access to justice.

Decentralization

Ironically, these human rights erosions grew out of the decentralization process initiated by the Indonesian government to grant autonomy to local provinces and districts so they could govern themselves, including create their own local laws (or bylaws). Religious extremists usurped the decentralization process to create discriminatory bylaws in their provinces and enforce them with impunity in the name of morality and religion. They targeted sexual rights, reproductive rights, women’s rights and LBT rights. They regulated what women wore, the length of their hair, what public spaces they could access, and how they appeared – with penalties for butch lesbians (lesbian tomboys) for not looking “feminine enough” or transgender women (waria) for “acting like women.”

Ardhanary Institute reports that since 2008, employment discrimination and sexual bullying in schools sharply increased because of the “spread of intolerance.” By 2010, family violence against LBT people had doubled in Jakarta, the capital city, and tripled in the provinces outside Jakarta. Lesbians, particularly lesbian tomboys were increasingly being “sexually abused by fathers, uncles and brothers to change the sexual orientation of lesbians.” Those who risked going to the police faced ridicule and blame for provoking the violence and were lectured by police officers to change their sexual orientation and gender identity. Reports on the violence were quashed by police to prevent “smearing family reputation.”

According to Komnas Perempuan, the Indonesian Women’s Commission, the Ministry of Home Affairs was not properly monitoring and ensuring that the local bylaws were nondiscriminatory and in compliance with international human rights treaties that Indonesia has ratified, including the CEDAW Convention.

These realities challenged the suggestion that LBT people could wait another five years before their issues were brought to the CEDAW Committee. Agustine and I negotiated with the NGOs. Finally, they allocated eight minutes out of seventy minutes, which was fair given the number of NGOs wanting precious face time with CEDAW Committee members. Following our presentations, Komnas Perempuan and the leadership of the CEDAW Working Group of Indonesia revised their statements to include SOGI. They requested from Ardhanary Institute a regular supply of data so they could include it in their educational materials.

State Review

On the morning of July 11, Agustine walked into the room where the 52nd session of the CEDAW Committee would commence, a broad smile on her face, eyes shining. “I feel confident,” she said, having earned the support of the other activists, her sisters in struggle.

The first question on LBT rights violations was raised by Patricia Schulz, CEDAW expert from Switzerland: “The bylaws on adultery passed in Aceh, if implemented, would expose adulterers to death by stoning, and LBT persons to caning, 100 lashes. This law is pending implementation. These bylaws represent grave violations of the rights of women to life, liberty and security… there is no commitment of the government to challenge these local and provincial laws. So I ask if your government plans to systematically review the local and provincial laws and strike down all the provisions that are discriminatory to women. You have the authority and the mechanisms to do so. Let me comment that decentralisation cannot mean that the human rights of women are invalidated at the local and provincial level. Democracy and rule of law, including anti-discrimination and equality law have to walk hand in hand, at all levels of the State structure. Governments are responsible for upholding the obligations arising from ratified human rights treaties, so I hope that you will give us very good news on that respect at our next constructive dialogue.”

The second question came from Silvia Pimentel, CEDAW expert from Brazil and Chair of the Committee: “Due to different risks associated with being identified as lesbians, bisexual, or transgender, LBT people who experience violence by family are reluctant to report their cases to police. Could the State: (a) enhance operational procedures, such as victim representation and witness protection? (b) sensitize frontline staff through training to address these specific fears?”

Harkristuti Harkrisnowo, Director-General of Human Rights in Indonesia’s Ministry of Justice and Human Rights responded, “The allegation about criminalization of LBT is incorrect because Indonesia does not criminalize LBT groups.” He added, “Regarding the punishment in Aceh, the law is not in place yet.”

Harkrisnowo stonewalled. He did not shed light on what measures the state would take to ensure protections. True, Indonesia has no sodomy law like many other Muslim countries in the region. But there are laws that disproportionately affect transgender people like the vagrancy and public order laws. The Anti Pornography Law classifies homosexuality as a “deviant act” that is punishable with jail and a fine.

In addition, a total of 154 local bylaws, regulate how women dress, including lesbians and lesbian tomboys who are punished for not appearing “feminine enough” and effeminate men and transgender women are punished for “acting like women.” Other bylaws force women to cover their heads, control what public places they can socialize in, and how late they stay out – all of which directly and indirectly affect LBT people.

The most egregious of the discriminatory local bylaws is the Aceh adultery law that was passed in 2009 by religious hardliners in the Aceh government. If this law is implemented, heterosexual people will be stoned to death for adultery and LGBT people will be caned 100 times and face 8.5 years in prison for homosexuality, which the law defines as sexual activity outside marriage. Civil society groups have filed for judicial review with the Indonesia Supreme Court. To date, there has been no decision. IGLHRC has learned that the new governor of Aceh favors amending the law. LGBT groups in Aceh fear that even if stoning is removed, the penalties for homosexuality could remain unless there is greater solidarity.

As Agustine said after a long day, “SOGI needs to be included in the definition of discrimination against women in Article 1 of the CEDAW Convention. The Indonesian government needs to ensure that Indonesian LBT people have equal access to the law and justice. The Indonesian government needs to promote acceptance of sexual and gender diversity among non-state actors and destigmatize our issues.”

LGBT Report From The Peoples’ Forum In Phnom Penh, Cambodia

By Ging Cristobal

The Ninth Association of Southeast Asian Nations (ASEAN) Civil Society Conference/ASEAN Peoples’ Forum, (ACSC/APF), was held in Phnom Penh, Cambodia at the close of March. ASEANis an intergovernmental network formed to establish economic, socio-cultural, and political cooperation as well as regional peace amongst members. The ten member states include: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. The forum, which provides civil society activists a space to engage with their respective governments, included lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) issues for the second time this year. Ging Cristobal, Asia Project Coordinator for IGLHRC attended the forum for the second time around and shares about the experience.

The Struggle Continues for LGBTIQ Rights in the ASEAN Peoples’ Forum
For LGBTIQ activists the ninth convening of the Forum was an uphill climb compared to their first engagement last year. Fewer civil society organizations and individuals participated this year, as many were protesting the process of the Cambodia organizing committee. They claimed the Cambodian committee failed to be transparent in the organizing process and did not adequately consult with the regional committee. Allegedly, this affected not only how local organizers ran the convening but also hindered civil society groups and non-governmental organizations in other ASEAN countries from seeking funds to participate in the event.

Continue reading “LGBT Report From The Peoples’ Forum In Phnom Penh, Cambodia”

Thai Police Dismiss Murders of 15 Lesbians and ‘Toms’ As ‘Love Gone Sour’

grace poore

By Grace Poore

This post originally appeared in the Huffington Post »

On Feb. 24, 2012 in Loei province, Thailand, a 14-year-old girl reported to police that her 38-year-old father, who had sole custody of her since 2008, had been raping her continuously for four years because she “liked to hang out with toms” and wouldn’t listen to his instructions to stay away from them. She told police that the most recent rape had been on Feb. 11, 2012.

On Jan. 15, 2009 in Chiang Mai province, 17-year-old Orn-uma Wongprachit and her tomboy partner, 17-year-old Marisa Srisawa, were found dead. They had been stabbed over 60 times. Orn and Marisa worked at a karaoke bar to support their families. Police said they were killed by a man who was “attracted to one of the women and felt disdainful of the lesbian relationship.”
Continue reading “Thai Police Dismiss Murders of 15 Lesbians and ‘Toms’ As ‘Love Gone Sour’”

UPDATE: VICTORY! Seoul Student Rights Ordinance Passed with Sexual Orientation Gender Identity Clauses Included

The International Gay and Lesbian Human Rights Commission received  good news in the following letter  from Jihyye Kim  telling us of victory for LGBT Students in Korea.

Dear Friends and Colleagues,

 “We won the Seoul Student Rights Ordinance with all Sexual Orientation Gender Identity (SOGI) related clauses in the original draft included! 

…It happened after the 6 days of protest of LGBT young people and activists, day and night. This is a significant progress in our LGBT history, because we fought face-to-face against the homophobic individuals and groups, including many members of the Council…   The Council had serious debates on sexual orientation/ gender Identity  (SOGI) issues in their plenary session for the first time in our history. One of the Council members read out UN Secretary General Ban Ki-Moon’s recent speech…  That was the moment that the voices of LGBT people began to be heard, and LGBT people’s human rights recognized…

Continue reading “UPDATE: VICTORY! Seoul Student Rights Ordinance Passed with Sexual Orientation Gender Identity Clauses Included”

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