On trial for being LGBT in Morocco (2) and Malaysia (9)

IGLHRC and HRW report on the latest legal persecution of LGBT citizens of Morocco and Malaysia.

MOROCCO

The International Gay and Lesbian Human Rights Commission (IGLHRC) called on Moroccan authorities to immediately release two men on trial for alleged homosexual acts. That appeal came in a June 18 press release headlined, in part:

Stop Persecuting Individuals based on Claims of Homosexuality

… The two men, identified by their first names, Lahcen and Mohsine, were arrested by the Moroccan police on June 3 while posing for photos in a public square. If found guilty, they can be sentenced to up to three years in jail, based on Article 489  of the Moroccan Penal Code, Which Criminalizes “abnormal sexual Acts with a person of the same sex.”

[International Business Times said that, at the conclusion of the trial:

“The two men reportedly received four months of jail time [on June 19] for kissing in public, an act that brought a conviction for an “affront to public decency” and an “unnatural act with a person of the same sex.” The two men, aged 38 and 25, must also pay a fine of 500 dirhams, or about $52.]

“The arrest and trial of these two young men demonstrates how Article 489 of the Moroccan Penal Code is used by the authorities to intimidate individuals based on actual or perceived sexual orientation and gender expression” said Hossein Alizadeh, the Middle East and North Africa Program Coordinator for IGLHRC. “We urge the Moroccan authorities to immediately release these men and take concrete steps to protect the rights of all individuals. We also urge the Moroccan government to repeal all criminal law provisions, such as Article 489, that go against Morocco’s international human rights obligations.”

The first session of the trial was held on Friday June 12 and the second session on June 16. Before trial, the men allegedly confessed to having engaged in consensual same-sex sexual acts, according to the police report. However, during the trial, their lawyers said the confession was obtained by police under duress and without access to legal counsel, making it inadmissible. Prior to the trial, the authorities also published the photo and the identity of the men, violating their rights to privacy and presumption of innocence. Their lawyers also drew attention to the fact that their images aired on national TV and both showed signs of having been beaten with bruises evident. The lawyers requested a medical examination to determine whether the men were tortured and suffered physical duress during the police investigation.

“It is unacceptable and counter to both Moroccan and international legal standards, that defendants are kept in police custody based on a confession seemingly extracted under pressure,” said Alizadeh. “Instead of investing time to investigate a non-existing crime, the authorities should immediately look into the much more credible allegations of police abuse and violations of privacy.” …

The lawyers’ request for bail for the defendants was declined and the two men have remained in custody.

Human Rights Watch (HRW) called for the repeal of Malaysia’s laws against cross-dressing as part of a press release on the conviction of nine transgender women:

MALAYSIA

Court Convicts 9 Transgender Women

Abolish Laws Against ‘Cross-Dressing’

(Bangkok, June 22, 2015) – A Sharia (Islamic law) court in Malaysia has sentenced nine transgender women to fines, and two to one-month jail terms under a discriminatory law that prohibits “a male person posing as a woman,” Human Rights Watch said today. Religious authorities in the northeastern Malaysian state of Kelantan arrested the women in a raid on June 16, 2015, and they pled guilty the next day. A lawyer filed an appeal and the two women sentenced to jail were released on bail pending the outcome.

[Activists in Malaysia gave a slightly different account of the events, as conveyed via Transgender Europe:

“15 trans women were arrested in the Malaysian province of Kelantan on the night of June 17th 2015 at a birthday party held in a hotel. All 15 of them pleaded guilty. 13 of them were fined RM 1,000 (235 €), while 2 of them were fined RM 1,000 and sentenced to one month imprisonment. A lawyer managed to file an appeal immediately, and they were released on bail, an additional RM 1,000 each.

“Their rights were not explained to them, and some were also advised to plead guilty.”]

The raid is the latest incident in a pattern of arbitrary arrests and harassment of transgender women in Malaysia. Malaysian state governments should immediately abolish laws against “cross-dressing” and other discriminatory legislation against lesbian, gay, bisexual, and transgender (LGBT) people, Human Rights Watch said.

“Malaysian authorities need to stop hauling transgender people into court simply because of who they are and what they wear,” said Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch. “The government needs to recognize that the freedom to express your gender is as fundamental as any other freedom.”

In a landmark decision in November 2014, a court of appeal in Putrajaya struck down the state’s “cross-dressing” laws on the grounds that they violated constitutional rights, including the right to freedom of expression. Enforcement of the Negeri Sembilan law has been suspended, although the state government has appealed the decision to the Federal Court. But in the rest of Malaysia’s 13 states and its Federal Territories, laws against “cross-dressing” remain in force and are being used against transgender people.

The nine women, known as mak nyah in Malaysia, were attending a private birthday party at a hotel when officials from the Kelantan Islamic Department (JHEAIK) raided the party and arrested them. In each state in Malaysia, religious department officials are responsible for enforcing state Sharia criminal codes. In Kelantan, section 7 of the Syariah (Sharia) Criminal Code of 1985 states that “Any male person who, in any public place, wears woman attire and poses as a woman shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding four months or to both.”

Malaysian transgender rights activists say that the cross-dressing laws not only violate the constitution, but contribute to widespread discrimination and violence against transgender people.

“Laws against ‘a male person posing as a woman’ not only deny transgender women in Malaysia our fundamental rights as citizens of the country, they also contribute to a hostile environment,” said Nisha Ayub, a transgender activist with the rights group Justice for Sisters. “These laws lead people to perceive us as criminals and subject us to humiliation, hate crimes, and other forms of violence.”

In a 2014 report, “I’m Scared to be a Women: Human Rights Abuses Against Transgender People in Malaysia,” Human Rights Watch documented rights violations by state religious officials and police including arbitrary arrests and detention; sexual assault, torture, and ill-treatment; and extortion of money and sex. Human Rights Watch also identified instances of violence by private citizens, employment discrimination, and stigmatizing treatment by health workers.

Malaysia is one of very few countries in the world that prosecutes individuals whose gender identity differs from the sex assigned to them at birth, simply for being who they are.

Although transgender people historically had a high degree of acceptance in Malaysia, a series of state legislative initiatives, beginning in the 1980s, have criminalized them and forced them underground. Under these discriminatory laws, transgender people can be arrested simply for wearing clothing deemed not to pertain to their assigned sex.

A Federal Court hearing in the Negeri Sembilan case challenging the constitutionality of the laws is scheduled for August 2015. If favorable, the ruling in the case, while only binding in Negeri Sembilan, has the potential to fundamentally alter the legal status of transgender people throughout Malaysia.

“The Malaysian authorities should be protecting trans people from discrimination, not perpetuating it,” Ghoshal said. “The Kelantan Islamic Department should immediately drop the charges against the nine women, and all state governments should repeal these discriminatory laws.”

Related articles

• Morocco upholds 6 prison terms for disputed gay acts (76crimes.com)
• Video: Malaysian prison turned her into a trans activist (76crimes.com)
• Trans Malaysians win court fight over cross-dressing ban (76crimes.com)
• Archive of this blog’s coverage of Morocco
• Archive of this blog’s coverage of Malaysia
• Archive of this blog’s coverage of the Malaysian advocacy group Justice for Sisters.