Discrimination towards Sexual and
Gender Minorities
Discrimination towards Sexual and Gender Minorities
Amongst the strong presence of discrimination against sexual minorities in Malaysia, there is abundance of laws that criminalise against LGBTIQ persons and have a systemic, direct and indirect impact on LGBTIQ persons.
Discrimination towards sexual and gender minorities
In Malaysia, the highest law of the land – the Federal Constitution – states that all persons in this country are equal before the law and entitled to the equal protection of the law (Article 8(1). In addition, since 2001, Article 8(2) of this Constitution has prohibited discrimination on the basis of gender as stated, “there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”
However, the lack of definitional clarity with regards to gender-based discrimination has caused the development of narrow court interpretations of the law on gender equality. “In one of the earliest cases invoking Article 8(2), Beatrice Fernandez v. Sistem Penerbangan Malaysia and Anor (2005), the Federal Court ruled that this law only applied to public authorities, and hence private sector employers had the right to terminate their pregnant employees.
Gender Equality Act
Almost a decade later, the Court of Appeal made a similar argument in the Air Asia Bhd v. Rafizah Shima Mohamed Aris (2014) case, i.e., the constitutional guarantee under Article 8(2) did not extend to private entities. Both judgments infringed on the right of the female plaintiffs to sexual and bodily autonomy, and further perpetuate women’s subordination.” (FRHAM and ARROW, 2021).
These legal inconsistencies on gender-based discrimination, education, women’s employment and citizenship can be rectified by passing a Gender Equality Act. This could be manifested as the government’s commitment to the CEDAW Convention, ensuring global women’s rights standards to to be practised and upheld in Malaysia.
Former governments, Barisan Nasional (BN) and Pakatan Harapan (PH) had pledged to further this law to its realisation. However, efforts were unsuccessful despite several MPs having pushed for the implementation. Although the latter made greater strides in this regard, its premature termination as government halted any potential progress. Meanwhile, the current Perikatan Nasional government has not indicated its position on this matter.” (FRHAM and ARROW, 2021).
