A Malaysian man has been given the right to challenge an Islamic ban on sex “against the order of nature” in what could be a significant move towards easing strict laws against gay sex in the country.
The man in his 30s, whose name has been withheld to protect his privacy, was charged in 2018 for allegedly attempting to have gay sex. The Muslim man denies the charge and is challenging the accusation at Malaysia’s Federal Court on the grounds that they breach the constitution.
Same-sex acts are illegal in Malaysia, where Islamic laws applicable to Muslims run alongside Syariah laws set by individual states under a dual-track legal system. Malaysia has 13 states and the man at the centre of this case has argued that central Selangor state, where he was arrested in 2018, has no power to enforce an Islamic ban on gay sex when it is already a crime under civil laws at the national level.
There has been some discussion in recent years about reforming the law, though this test case will be the country’s first legal challenge against Islamic laws banning gay sex. The decision was made public on Wednesday that Malaysia’s top court had given the go-ahead for the case.
The man was among 11 men arrested on suspicion of the same charge in 2018 during a raid in a private residence. Five of the group pleaded guilty and were sentenced to jail, caning and fines.
While convictions are rare under the ban on gay sex, prominent LGBT+ rights groups have criticised the laws and called for change after high-profile instances such as the caning of two women in a Syariah court in the north-eastern state of Terengganu in 2018 for “attempting lesbian sex”. The two women, aged 22 and 32, were caned six times each in a courtroom of up to 100 people and were also fined 3,300 Malaysian ringgit (€688).
The official state religion of Malaysia is Islam and about 60% of the population is Muslim. Some laws, such as the criminal ban on sodomy (as well as oral sex), date back to British colonial rule in the country.
The election of a new government in 2018 saw a sharp rise in attacks and punishments on LGBT+ citizens in Malaysia, including a ban on anyone who is gay, bisexual or transgender from appearing in state-controlled media and a 2010 decision by the Film Censorship Board of Malaysia to only allow depiction of gay characters as long as the characters “repent” or die.
The LGBTIQ+ Network in Malaysia has voiced its support of the court’s decision to allow the case to go ahead, saying a victory could result in cases being brought in other Malaysian states as well.
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