EMPOWER Malaysia and Justice for Sisters Freedom of Expression and Gender Identity A study on the freedom of expression and gender identity of Malaysian transgender women Thilaga Sulathireh Sulastri Ariffin Breena Au Politicisation Transphobia Conversion therapy Sexual harassment and violence Discrimination Hate crimes Arrest and detention Doxing Table of contents Acknowledgments 4 Acronyms and Glossary 5 Introduction 6 Methodology 8 Demographics of the respondents 8 Background 10 History of gender diversity 11 Criminalisation and non-recognition of gender identity of transgender women 12 Constitutionality of State Syariah Laws 13 State policies and programmes 14 Discrimination against transgender persons 15 International Human Rights Instruments 16 “When we disclose or Findings 18 reveal our gender identity, 1. Perception of trans women in Malaysia 18 some of them 2. Self-expression and pressure to change 22 will be 3. Employment 28 surprised and change 4. Family 35 their behaviour by 5. Gender-based violence 38 being immoral to us” 6. Access to justice 45 7. Access to gendered spaces 53 (Fazura) 8. Educational institurtions 55 Conclusion and Recommendations 58 Government 58 Religious Institutions 60 Employers 60 Media 60 Family Members and Individuals 60 Appendix 1 62 LGBTQ related recommendations in UPR Cycle 3 62 Appendix 2 63 Laws that criminalize non-cisnormative gender identity and expression 63 References 66 Freedom of Expression and Gender Identity 3 Acknowledgments Acronyms and Glossary Justice for Sisters expresses its utmost gratitude to the respondents, researchers, field workers, transcribers and others involved Cis or cisgender A person whose gender identity matches the sex or identity assigned at birth in the completion of this research. Our heartfelt appreciation to Rania Hashim, Breena Au, Sulastri Ariffin, and Thilaga Sulathireh for their contributions to the report. FoE Freedom of Expression We would also like to express our gratitude and appreciation to Sisters United in Sarawak, SEED Malaysia and PT Foundation in Kuala Lumpur, Khartini Slamah, Mischa, Minisha Deepu for their support. We would also give thanks to Empower for all their Gender ideology Gender ideologies are defined as views that people hold regarding gender roles support and patience in helping ensure the research was completed within the agreed timeline. Hetero or heterosexual A person who is romantically and/or sexually attracted to people who identify as the opposite gender, including cisgender or transgender person. A cisgender man who is in a relationship Writers: Breena Au, Sulastri Ariffin and Thilaga Sulathireh with trans woman is considered to be in a heterosexual relationship Editor: Suri Kempe LGBTIQ Lesbian, gay bisexual, transgender, intersex and queer MAC Malaysian AIDS Council MCO Movement Control Order OHCHR Office of the United Nations High Commissioner for Human Rights SOGIESC Sexual orientation, gender identity, gender expression and sex characteristics TGEU Transgender Europe TENI Transgender Equality Network Ireland UDHR Universal Declaration of Human Rights OK. 4 Freedom of Expression and Gender Identity 5 Introduction 2. Availability, accessibility and efficacy of Transgender or trans women in Malaysia enjoy limited freedom of expression (FoE) due to several redress and remedy mechanisms in cases of intersecting factors. This includes the criminalisation of trans women under various laws, non- sexual and gender-based violence (SGBV) recognition of their gender identity, censorship laws, legal barriers in accessing trans specific related to freedom of expression online and offline; healthcare services, all of which pose structural barriers for trans women to be themselves and enjoy equality and non-discrimination under the law. In Malaysia, societal attitudes and cis and 3. The factors that contribute to the enjoyment hetero-patriarchal interpretations of gender diversity in religion, in particular Islam, manifest in the and restriction of freedom of expression by promotion of ‘gender ideology’ through a religious lens, which further restrict their FoE. women. Principle 19 of the Yogjakarta Principles provides a sexual orientation, gender identity, gender expression and sex With the ease of access to social media, there has been In February 2020, Nur Sajat, a self-identified intersex woman characteristics (SOGIESC) lens as it expands the definition of increased visibility of trans and LGBT persons, trans and celebrity perceived as a trans woman faced severe backlash freedom of expression from freedom to hold opinions without LGBT persons-owned businesses, and activism at the national from online users and the state for wearing the telekung or interference and to seek, receive and impart information and and global level. This visibility and self-expression by trans and female prayer garment while performing the umrah (lesser ideas to include expression of identity or personhood through LGBT persons are often misconstrued as ‘promotion of LGBT pilgramage) in Mecca after she posted the photos on her social speech, deportment, dress, bodily characteristics, choice of lifestyle’ in the public narrative. In 2018, Mujahid Rawa, the media platforms.8 name, or through other means: former Minister of Religious Affairs stated, “The government does not accept any liberalist movement that seek (sic) to The backlash escalated further with the non-consensual Everyone has the right to freedom promote LGBT lifestyle and same-sex marriage while trying sharing (doxing) of Sajat’s legal documents online by an of opinion and expression, regardless to abolish related provisions under the civil law or the State acquaintance. This was followed with the release of her of sexual orientation or gender identity. Syariah Criminal Procedure Enactment.”1 This position has personal details on her birth certificate by the Federal This includes the expression of identity or continued into the present day, with the Deputy Minister of Territory Mufti’s Office after obtaining them from the National personhood through speech, deportment, Communication and Multimedia, Datuk Zahidi Zainul Abidin Registration Department9, and a call to ban Sajat from social “Even [though] we noting that “LGBT or trans women hide behind many guises media platforms by the then Minister of Religious Affairs as her dress, bodily characteristics, choice (online). Besides promoting their LGBTness, they hide behind actions “led rise to discomfort among Muslims.”10 of name, or any other means, as well like to think of ourselves their certain businesses, and other activities that they do.”2 as the freedom to seek, receive and This research interrogates the enjoyment of FoE by trans impart information and ideas of all kinds, in the Klang Valley as the Meanwhile, conservative Members of Parliament and others women using Article 19 of the Universal Declaration of including with regard to human rights, have consistently raised alarms over the increasing visibility Human Rights (UDHR)11 and the Yogyakarta Principles12 as a sexual orientation and gender identity, bastion of progressiveness of LGBT persons, in particular on social media and proposed framework. In particular, the study seeks to understand: through any medium and regardless of 3 harsher laws and other measures to curb it. frontiers. in Malaysia, we still 1. The relationship between restrictions in In recent years, trans women have faced increased women’s freedom of expression and gender- censorship,4 gender based violence,5 prosecution and based violence; have a long investigation for participating in beauty pageants,6 and boycotts of trans women-owned businesses and products.7 way to go” (Nancy) 1 Rohman, Mohd Anwar Patho. “No Place for Liberalism in the Promotion of LGBT Lifestyle, Says Mujahid.” NST Online, 29 Nov. 2018, keusahawanan. www.nst.com.my/news/nation/2018/11/435764/no-place-liberalism- promotion-lgbt-lifestyle-says-mujahid. 8 Hisamudin, Hakimie Amrie. “Take Threats against Nur Sajat, Transgender Community Seriously, Say Activists.” Free Malaysia 2 Penyata Rasmi Parlimen Dewan Rakyat Parlimen Keempat Belas Penggal Today (FMT), 5 Mar. 2021, www.freemalaysiatoday.com/category/ Ketiga Mesyuarat Kedua.” Parlimen Malaysia, vol. 13, 2020, p. 21, www. nation/2021/03/05/take-threats-against-nur-sajat-transgender- parlimen.gov.my/hansard-dewan-rakyat.html?uweb=dr&arkib=yes. community-seriously-say-activists. 3 Tan, Tarrence, et al. “More than 2,400 Porn Sites Blocked by MCMC 9 Nawawi, Muhaamad Hafis. “‘It’s Muhammad Sajjad’” NST Online, 5 Feb. since 2018.” The Star Online, 3 Aug. 2020, www.thestar.com.my/news/ 2020, www.nst.com.my/news/nation/2020/02/562688/its-muhammad- nation/2020/08/03/more-than-2400-porn-sites-blocked-by-mcmc- sajjad. since-2018. 10 Malay Mail. “Mujahid Meets MCMC to Act against Nur Sajat’s ’umrah’ 4 Su-Lyn, Boo. “LGBT Activists’ Portraits Removed from George Town Social Media Posts.” Malaysia | Malay Mail, 4 Feb. 2020, www.malaymail. Festival Exhibition.” Malaysia | Malay Mail, 8 Aug. 2018, www.malaymail. com/news/malaysia/2020/02/04/mujahid-meets-mcmc-to-act-against- com/news/malaysia/2018/08/08/lgbt-activists-portraits-removed-from- nur-sajats-umrah-social-media-posts/1834221. george-town-festival-exhibition/1660198. 11 Everyone has the right to freedom of opinion and expression; this 5 Ghoshal, Neela, and Thilaga Sulathireh. “‘The Deceased right includes freedom to hold opinions without interference and to Can’t Speak for Herself:’ Violence Against LGBT People in seek, receive and impart information