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Malaysian man wins landmark challenge against Muslim gay sex ban

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A Malaysian man has won a landmark court challenge against an Islamic ban on sex “against the order of nature”, raising hopes for greater acceptance of gay rights in the mostly Muslim country.

The Muslim man in his 30s – whose name has been withheld by his lawyer to protect his privacy – filed the lawsuit after he was arrested in the central Selangor state in 2018 for attempting gay sex, which he denies.

Same-sex acts are illegal in Malaysia, although convictions are rare. The country, which has 13 states, has a dual-track legal system, with Islamic criminal and family laws applicable to Muslims running alongside civil laws.

LGBT+ advocates say Islamic laws have been increasingly used to target the Southeast Asian country’s gay community, with a rise in arrests and punishments ranging from caning to jailing.

In a unanimous decision, Malaysia’s top court ruled on Thursday that the Islamic provision used in Selangor was unconstitutional and authorities had no power to enact the law.

“This is historic. This is monumental for LGBT+ rights in Malaysia,” said Numan Afifi, the founder of LGBT+ rights group Pelangi Campaign, which was not involved in the lawsuit.

Numan hoped Selangor would immediately repeal the Islamic ban, with other states following suit.

Despite the ruling, gay Malaysian men still face up to 20 years in jail under a British colonial-era law that bans gay sex, known as Section 377.

“We want to live in dignity without fear of prosecution. Of course Section 377 is still there – it’s not the end but this is a beginning,” Numan said.

In Malaysia, a country of 32 million where 60% of the population is Muslim, many gay people are not open about their sexuality.

The man who launched the legal challenge argued that Selangor had no power to enforce an Islamic ban on “intercourse against the order of nature” when gay sex was already a crime under civil laws.

The court agreed, declaring that the state’s power to enact such offences “is subject to a constitutional limit”, the chief justice Tengku Maimun Tuan Mat wrote in the ruling.

The Selangor Islamic Religious Council, a respondent in the suit, did not immediately respond to a request for comment.

The man involved in the legal challenge was among 11 men arrested on suspicion of attempting gay sex during a raid at a private residence.

Five of the group pleaded guilty, and were sentenced to jail, caning and fines in 2019, sparking outrage among human rights activists who said it created an environment of fear for LGBT+ people.

Two women were caned for “attempting lesbian sex” under Islamic laws in the east coast state of Terengganu in 2018, the same year that saw a transgender woman attacked.

Beh Lih Yi

This article is re-published with permission from the Thomson Reuters Foundation.

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