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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

Paradojas Chilenas: Derechos LGBT en América Latina

por Pedro Garcia, Paula Ettelbrick Fellow

To read the original article in English, visit: Chilean Paradoxes: LGBT rights in Latin America 

Durante los últimos años ha habido avances importantes en materia de derechos humanos para la población gay, lesbiana, bisexual y transexual (LGBT) de América Latina. El reconocimiento de uniones civiles para parejas del mismo sexo en Brasil y en Uruguay, matrimonio homosexual en la Ciudad de México y en Argentina, y leyes que protegen la identidad de género en Bolivia, Chile y Argentina. Estos cambios ponen en duda viejos estereotipos que califican al subcontinente como una región conservadora, machista, y dominada por la moral de la iglesia católica.

La lucha por los derechos humanos LGBT en América Latina no es un camino de un solo sentido. Existen paradojas dentro de los Estados y entre las naciones. El año en que la Ciudad de México legalizó el matrimonio para parejas del mismo sexo, únicamente el 29% de la población de la ciudad apoyaba el derecho de estas parejas a adoptar. En Ecuador, la Constitución prohíbe explícitamente la discriminación por motivos de orientación sexual, pero también rechaza textualmente el matrimonio y la adopción por parejas del mismo sexo. EL matrimonio gay es legal en algunos casos en Brasil, pero la población transgénero sigue siendo víctima sistemática de violentos crímenes de odio. En el 2009, Brasil reportó el mayor número de asesinatos a personas transgénero del continente. En Costa Rica el diputado evangélico Justo Orozco, quien ha afirmado que la orientación sexual es un pecado y debe tratarse, es también presidente de la Comisión de Derechos Humanos.

Chile es una gran ilustración de estas paradojas latinoamericanas. Cuando Michele Bachelet, mujer socialista, asumió la presidencia en el 2006, grupos LGBT vieron una oportunidad para hacer avanzar sus derechos en un país de un conservadurismo rígido. Irónicamente, la mayor parte del debate y legislación sobre temas LGBT tuvo que esperar hasta la presidencia actual de Sebastián Piñera, el primer presidente de derecha desde la época de Pinochet.

Durante estos últimos meses, tres temas LGBT han recibido gran atención de la población chilena: una ley antidiscriminación, impulsada por una condena al Estado chileno de la Corte Interamericana de Derechos Humanos (CIDH) y el asesinato del joven homosexual Daniel Zamudio; un proyecto de ley para permitir las uniones civiles pero prohibir el matrimonio a parejas del mismo sexo a nivel constitucional; así como el anuncio de que el Fondo Nacional de Salud chileno, el Fonasa, costeará cirugías de cambio de sexo a personas transgénero.

Continue reading “Paradojas Chilenas: Derechos LGBT en América Latina”

Chilean Paradoxes: LGBT rights in Latin America

By Pedro Garcia, Paula Ettelbrick Fellow

Para leer este artículo en español, mira: Paradojas Chilenas: Derechos LGBT en América Latina 

Over the past few years, there have been important milestones advancing LGBT human rights in Latin America. Recognition of civil unions in Brazil and Uruguay, same-sex marriage in Mexico City and Argentina, laws protecting gender identity in Chile and Bolivia, and historic, progressive legislation in regard to gender identity in Argentina. These advances question old stereotypes of the region as a conservative macho culture dominated by the morals of the Roman Catholic Church.

The fight for LGBT human rights in Latin America isn’t a one-way street. Paradoxes arise among and between countries.  When Mexico City legalized same-sex marriage by legislative action, only 29% of the city’s population supported the right to adoption by same sex partners. In Ecuador, the Constitution prohibits discrimination based on sexual orientation yet bans same-sex marriage and adoption. Gay marriage is legal on a case-by-case basis in Brazil but transgender people continue to be the target of violent crime. In 2009, Brazil reported the highest number of murders of transgender people for the region. In Costa Rica, the president of the Legislative Assembly’s Human Rights Commission expressed his belief that sexual orientation is a sin that can be treated. Clearly, homophobia and transphobia are widespread in the region.

Chile:  World of Latin American paradoxes.

When the Chilean socialist president Michele Bachelet took office in 2006, LGBT groups saw an opportunity for advancing their rights in a country with rigid cultural conservatism. Ironically, most of the debate and legislation about LGBT issues had to wait until Sebastián Piñera, Chile’s first right-wing president since Pinochet left   office.

Three issues have received particular attention from the Chilean population: An anti-discrimination law, prompted by a ruling in the Karen Atala custody case condemning Chile by the Inter-American Court of Human Rights and the homophobic murder of Chilean youth Daniel Zamudio, a bill for same-sex civil unions  and  ban on same-sex marriage,  and , an   announced health coverage of sex reassignment surgeries by the country’s public health plan.

Continue reading “Chilean Paradoxes: LGBT rights in Latin America”

Archbishop Tutu: “I would never worship a homophobic God”

There has recently been almost unprecedented attention in the US mainstream media to issues of homophobia in various African countries. Attention to ending discrimination and violence on the basis of sexual orientation and gender identity is for the most part welcome. However, it is often too easy for voices from outside of Africa to be dismissed as being promoters of an un-African or western “homosexual agenda.” It is far more significant for an African voice to be reminding people of the need to protect human rights for everyone. And when so much of the hatred and vitriol against LGBT people is driven by claims to religion, it is even more significant when that African voice is a prominent faith leader.

desmond tutu

Archbishop Desmond Tutu, Nobel Peace Prize winner and recipient of IGLRHC’s 2008 OUTSPOKEN award, has long been a vocal advocate for the rights of lesbian, gay, bisexual, and transgender (LGBT) people. Two years ago, Archbishop Tutu accepted the award at IGLHRC’s A Celebration of Courage event. This award was given in recognition of his leadership as a global ally to the LGBT community through his outspoken and public support, which has contributed substantially to advancing the rights and understanding of LGBT people everywhere.

Achbishop Tutu continues to demonstrate the values and commitment for which this award was given. He has added an important faith-based voice against the discrimination and hate towards LGBT people seen in many places in Africa – what Tutu describes as as a “wave of hate … spreading across [his] beloved continent” – and often driven by religious fundamentalists. In his Op-Ed in the Washington Post on March 12, he noted that in many African countries, including Uganda, Senegal, Kenya and Malawi:

“People are again being denied their fundamental rights and freedoms. Men have been falsely charged and imprisoned in Senegal…In Malawi, men have been jailed and humiliated for expressing their partnerships with other men…Kenyan religious leaders, I am ashamed to say, threatened an HIV clinic…because the clerics wanted gay men excluded.”

He challenges the notion that LGBT people are somehow not African, noting that they are, in fact, an integral part of African families and communities. To those who spread hatred and discrimination in the name of religion and God he calles this an offense – saying that “Gay people, too, are made in my God’s image. I would never worship a homophobic God.” In remarks that highlight the reality of politicians who are manipulating the basest fears of people to hide their own failings of leadership in meeting people’s needs, he calls on politicians and leaders to demonstrate true leadership to “stand up for the principles of universal dignity and fellowship. Exclusion is never the way forward on our shared paths to freedom and justice.”

We hope that those across the continent who praised Tutu for his role as a religious leader in resisting apartheid will also hear the analogies he draws between the exclusion and hate of apartheid and that of homophobia. As he states in his Op-Ed:

“[W]e struggled for years against the evil system of apartheid that divided human beings, children of the same God, by racial classification and then denied many of them fundamental human rights. We knew this was wrong. Thankfully, the world supported us in our struggle for freedom and dignity. It is time to stand up against another wrong.”

This is a call to action and leadership from someone who has once again shown what true leadership is about.

IGLHRC thanks the Archbishop for his unstinting leadership and for his unequivocal and passionate call to end the hate against LGBT people in Africa.

Read the full Op-Ed »

Read about this year’s A Celebration of Courage awardees »

Exporting Homophobia

by Cary Alan Johnson

Despite the global recession, the U.S. is promoting and aggressively selling a costly product overseas: homophobia. Uganda, one of America’s closest partners in Africa, is currently home to vicious and violent attacks on its citizens based solely on their sexual orientation and gender identity. The high cost in terms of individual privacy and freedom of expression is mounting daily. Regrettably, much of the inspiration and call for these attacks is coming directly from these shores.

In March 2009, three American extremists flew to Uganda’s capital city of Kampala to be featured speakers at a three-day training seminar focused on the “homosexual machinery wreaking havoc on individuals, families and society.” Attendees, including Ugandan teachers, pastors, and parents, were bombarded with provocative lectures, slide shows, and glossy materials that offered advice on how to fight the “gay agenda” and “cure” gay people from their sexual orientation.

The three Americans—Scott Lively, Don Schmierer, and Caleb Lee Brundidge—work for groups such as the Extreme Prophetic Ministry in Arizona, the International Healing Foundation in Maryland, and Exodus International in Florida, all of which declare “homosexuality” to be sinful and advocate converting gay people to heterosexuality—an approach that is widely repudiated and even condemned by professional organizations including the American Psychological Association and the American Medical Association.

Lively, whose book, The Pink Swastika, makes the discredited claim that gays helped run the Nazi party, was quoted at the seminar as stating, “You have a gay movement in Uganda that is operating at a high level…this gay movement around the world has a handbook that they use and that is what the Ugandan gay movement is using now. You must be ready to stop this gay agenda.”

Emboldened by the Americans’ vilification of gay people, the seminar’s Ugandan host organization, Family Life Network, immediately instigated a witch-hunt. The group mobilized “ex-gays” to appear on television and radio and announce the names, addresses and places of employment of supposed gays and lesbians in Uganda. The effects have been immediate and devastating. At least five people have been arrested and charged with “having carnal knowledge against the order of nature.” Violent attacks of anyone suspected of being gay are occurring on the streets of Kampala with more frequency and intensity. Local tabloids, such as The Red Pepper have jumped into the fray by printing lists of men and women accused of being gay and lesbian.

Equally disturbing are calls for violence against gay men and lesbians from a coalition of the country’s religious leaders representing the Church of Uganda, the Catholic Church, and the Muslim Supreme Council. A recent public outing of “who is gay in Uganda” took place at the church of veteran Ugandan homophobe Martin Ssempa, who is a close friend of the head of America’s Saddleback Church, Rick Warren. In 2007, Ssempa organized a rally in which one of his guest speakers encouraged the murder of all gay and lesbian people by means of starvation. Now in 2009, Ssempa himself has publicly announced the names and places of employment of gay men.

This homophobic campaign is intent on getting new legislation passed in Uganda that will expand already harsh penalties against consensual same-sex relationships (the Ugandan Penal Code already carries a maximum sentence of life imprisonment. How much more severe can a penalty be?) Petitioners are calling for an expansion of that law to make it illegal for people of diverse sexual orientations to meet, to share ideas, and to engage in self-help programs to prevent HIV. These types of laws will open the door to all manner of blackmail, police harassment, employment discrimination and violence by state and non-state actors as well as attacks on freedom of expression, association, and privacy.

When asked what he would say to a gay person excluded by the church, Nobel Peace Prize winner Archbishop Desmond Tutu said he would apologize: “You are members of this family.” Every member of the human family deserves to be treated dignity and respect. Gay, lesbian, bisexual and transgender Ugandans should be able to live their lives in peace without the boot of the state on their necks or the fear of a homophobic lynch mob gathering outside their homes or workplaces. U.S. extremists are purposefully stoking the flames of homophobia in Uganda and inciting human rights abuses. In contrast, the U.S. government should stand up for justice and let Uganda know that any law that curtails basic human rights is wrong, that arresting people because of whom they are perceived to love is a crime, and that inducing violence and hatred is never a solution for resolving social conflict.

Cary Alan Johnson is Executive Director of The International Gay and Lesbian Human Rights Commission.

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