Although the Southeast Asian region has made vast strides in terms of economic development, it is still, as a collective, regressive and draconian in the promotion of civil liberties. Violations against minorities by state actors are most evident in the overt discrimination and lack of legislative protections for individuals whose sexual orientations and gender identities are non-conforming.
Advocating for the advancement of LGBTIQ equality is a complicated task as human rights in Southeast Asia are subjected to cultural relativism and domestic ideals of “public morality.” Social norms and attitudes also vary widely within a country, with greater acceptance of LGBTIQ individuals in urban cities than in rural provinces. Despite these challenges achieving region-wide equality for sexual and gender minorities, and for human rights more widely, is a conceivable task. However, much work has yet to be done to decriminalize sodomy, enact anti-discrimination legislation, address structural causes of disenfranchisement, and better educate the public on the need for equality and respect for fundamental human rights.
Four countries in Southeast Asia still criminalize homosexuality. Most of these laws are remnants of a British colonial past, which continues to encroach on the legislative policies and social attitudes against LGBTIQ equality. Malaysia, Singapore, and Myanmar all have an iteration of Article 377 of the Indian Penal Code, outlawing “unnatural offences” and criminalizing sexual activities against the order of nature. While the law is rarely enforced, the presence of punitive laws justifies violence and discrimination against LGBTIQ people and increases social stigma. The law has been challenged in Singapore, though unsuccessfully, with government officials stating that the country is not ready to repeal the law as it does not embody the attitudes and beliefs of the majority. Brunei also criminalizes homosexuality by way of a national level Sharia law. Sharia law, and with it the death penalty for homosexuality, came into effect in Brunei in 2013, amidst global outcry and boycott of Brunei-owned establishments. While homosexuality is not criminalized in Thailand, Laos, Cambodia, Vietnam, and The Philippines, and Indonesia, apart from Aceh, discrimination against LGBTIQ people, as well as domestic and public violence remains high.
In 2009, Aceh, Indonesia, which has an autonomous regional government, passed a law that calls for up to eight-and-a-half years in prison and 100 lashes of the cane for premarital sex or homosexuality. The law covers homosexual activity by both males and females. It was used for the first time to punish two men aged 20 and 23 in May 2017. The men were lashed 83 times each by a cane. The region promotes vigilante public policing, making the environment for LGBTIQ individuals one of fear and persecution.
Other Punitive Laws
Other punitive laws are also used to target LGBTIQ people in Southeast Asia, especially transgender women, and gay and trans sex workers. For example, in Malaysia, anti-crossdressing laws have been used to arrest trans women. They subsequently faced harassment, unjust treatment, and even sexual abuse and monetary extortion at the hands of police. The law was challenged, but in 2015 Malaysia’s dismissed the case on the grounds that the right channels had not been followed in filing the case.
In Myanmar the 1945 Police Act section 35(c) which warrants that, “Any person found between sunset and sunrise having his face covered or otherwise disguised, who is unable to give a satisfactory account of himself… may be taken into custody by any police officer without a warrant, and shall be punishable on conviction with imprisonment for a term which may extend to three months.” in 2013 10 gay men and trans women were arbitrarily arrested and violently abused under this law. Myat Noe, an individual who was arrested, recounted,
“When we arrived at the Division Police Station, the police forcibly pulled off our clothes, kicked and beat us. Our breasts were squeezed, scratched and beaten with police batons.
They forced us to do frog jumps, without clothes, and shout that we are not women but men. When we did as they said, we were beaten again because our voices sound feminine. They slapped our faces and shouted out, ‘Shout like a man! Sound like a man!’ I’ve never experienced terror like this.”
In the Philippines, law enforcers threaten LGBTIQ individuals for breaching the Grave Scandal law, Article 200 of the Revised Penal Code, as a way to harass and extort money from them. Often LGBTIQ people will succumb to the extortion for fear of being outed or humiliated publicly by police.
Punitive laws, whether or not enforced, lead to further discrimination and violence against the LGBTIQ community.
No country in the ASEAN region has sexual orientation and gender identity protections as part of their constitution. Only two countries have either local level or national level laws on anti-discrimination - Thailand and the Philippines.
A national anti-discrimination bill, titled Senate Bill 935, was introduced 17 years ago, and seeks to amend the constitution to, “guaranteeing the fundamental equality before the law of women and men to include lesbians, gays, bisexuals, transgenders, queers and intersex.” The bill was historically heard, for the first time, in the Senate in 2016, however continues to be stalled. While there is not a national level anti-discrimination law in the Philippines, twenty five anti-discrimination ordinances exist at the local and district level. These ordinances make it illegal to commit any acts of discrimination against LGBTIQ and often intersex people, however many of the ordinances do not have enforcement mechanisms. While the ordinances are a powerful tool of equality, without measures of enforcement, they remain largely symbolic. Only one local ordinance, from Quezon City, has enforcement mechanisms which hold individuals who commit acts of discrimination criminally liable. The ordinance precludes, “Any person held liable under this Ordinance shall be penalized with imprisonment for a period of not less than 60 days not not more than 1 year/ and or a fine of not less than one thousand pesos but not to exceed five thousand pesos, or both at the discretion of the court...”
While Thailand does not have SOGI protections as part of the constitution, there is a national level law which was enacted in 2015, called the Gender Equality Act, which, in name, protects gender-based discrimination against people who are “male, female, or have expressions different than their birth sex.” While the law does not explicitly cover sexual orientation, it has been argued that the spirit of the law extends protections to LGBTIQ people, however the interpretation of the law is left to legislative implementers. The law does not have any enforcement mechanism, and there are exemptions to the law decreasing its effectiveness, namely it is not applicable in contexts of national security, the exercise of religious principles, and affirmative actions.
The lack of discrimination protections in Southeast Asia leads to pervasive discrimination in the region that exists on every level of life. LGBTIQ people face discrimination in the education settings, in employment, in housing, healthcare, and access to services - all of which are violations to the fundamental human rights of LGBTIQ people. Social stigma, homophobia, and transphobia remain high in many Southeast Asian countries, especially those which have higher influences of religion in the social and political realms, such as in Malaysia, Indonesia, the Philippines, and Brunei. Enacting anti-discrimination laws would help to impact social attitudes from the top-down, as it highlights a state's acknowledgement of the rights of LGBTIQ people, their right to equal treatment, and to live free from persecution and violence.
No country in the ASEAN region has provisions for same-sex marriage or for legal civil unions, for either heterosexual or homosexual couples. The countries which have sparked the most debates on same-sex marriage in the region have been Vietnam and Thailand.
In Vietnam, In 2012 the country went through an overhaul of their marriage laws and began a process of review. At the same time the country’s Justice Minister came out in favor of marriage equality, recognizing that same-sex relationships were a reality in the country and that there needed to be legal mechanisms in place to deal with these relationships. In 2013 the country withdrew regulations which placed a fine on same-sex ceremonies. The government also initiated consultations with civil society and experts from within the country and from abroad, such as notable economist M V Lee Badgett, to better understand the need and benefits of same sex relationships and growing recognition of same-sex marriages globally. The change in the marriage laws would also include cohabiting heterosexual couples, encompassing rights to property and children. While the proposed changes to the marriage law, as part of amendments to the constitution, were submitted for approval in 2013, clauses covering rights of same-sex couples were dropped in 2014. However, the revised law removed the ban on same-sex marriage replacing the language with, “the government does not recognize same sex marriage,” which consequently allows for same-sex couples to have weddings and celebrations but the relationship still have no legal bearing and are not officially recognized by the state. This has been celebrated as a step forward in Vietnam’s fight for marriage equality.
Thailand is another country that has had progress and pushback in its movement towards same-sex relationship recognition. The push for marriage equality first came in 2012 when a well known Thai activist, Natee Teerarojjanapongs, and his partner tried to register their marriage at a local registrar in the north of Thailand, but were refused. They took the matter up with the country’s National Human Rights Commission which took on the complaint. The issue was taken up by the Thai Parliament rather than the Constitutional court, which began a process of drafting a civil union bill with consultation from the Thai LGBTIQ civil society. However, without any political backing and with the dissolution of the Parliament due to a coup d’etat in 2014, the process stalled. Civil society members were not satisfied with the draft of the bill, as such a group of civil society activists worked with the Thai Law and Reform Commission, now defunct, to draft a more comprehensive and gender neutral version. In 2017, new conversations have arisen on the civil union bill. During an International Day Against Homophobia, Transphobia, and Biphobia (IDAHOT) event, a petition for passing the civil union bill, signed by 60,000 people, was presented to Thailand’s Justice Ministry. The Ministry has since said it has the intention of getting the bill approved promptly. Contention has arisen within the LGBTIQ movement in Thailand with some activists firmly against working with the military government, which was not democratically elected. Time will tell whether the bill will come to fruition and civil unions will be legally recognized in Thailand.
Gender Identity Recognition
Laws concerning gender identity recognition are somewhat ambiguous in parts of Southeast Asia. Only Singapore and, more recently, Vietnam allow for gender identity recognition, however accessing the law is only possible once an individual has gone through complete sex reassignment surgery. This goes against the best practice of allowing trans individuals to access gender identity recognition based on self-determination, without the need for body transformation or hormonal intake, as is the case in Argentina. Laws in Laos, Cambodia, and Myanmar are somewhat ambiguous with sources reporting that gender identity recognition without sex reassignment surgery is possible, however other sources contradict this claim. While accessing the law might be possible, sex reassignment surgeries are not available in the country. Thailand, while not allowing for gender identity recognition, performs the highest number of sex reassignment surgeries anywhere in the world. Similarly, Malaysia, The Philippines, Brunei, also do not allow for gender reassignment surgery.
The lack of laws allowing for gender identity recognition leads to large scale discrimination of transgender people, as well as sets barriers for trans people to accessing education, employment, health, and other services. In order to move forward as a region, all countries in the ASEAN must provide a pathway for legal gender recognition without surgical or hormonal requirements and must leave this at the discretion of the individual.
Due to vast geopolitical, religious, and socio-cultural diversity in the region, addressing sexual and gender inequality in Southeast Asia must be a multi-faceted approach and cannot be a “one-size fits all” strategy. Furthermore, in order for ASEAN to realize this ideal, states must be held accountable for their actions. One way to improve such accountability is through the strengthening of the ASEAN Intergovernmental Commission on Human Rights (AICHR) - giving it the ability to enforce penalties against nations that commit egregious acts of discrimination against their own citizens. There is also a need to build the capacity and connectivity of Civil Society Organizations as well as national and regional coalitions and empower them to engage in public policy processes. This will ensure a collaborative and transparent movement towards greater human rights and good governance in Southeast Asia. Lastly, both traditional and new media strategies must be utilized to change negative social attitudes. Changing rhetoric in the media to show positive examples of LGBTIQ people, instead of chastisement, and sensitizing the public on issues concerning the human rights of LGBTIQ individuals will enable positive attitudes towards LGBTIQ people. Improving human rights standards will greatly benefit the citizens of this region and highlight ASEAN as a proponent of secular values.
ASEAN’s vision for regional integration cannot continue at the expense of human rights. Economic and civic-political progress is inseparable in realizing sustainable human development. In moving forward as a region ASEAN must continue to question, criticize, and challenge the existing policies and cultural adherences that have influenced and oppressed ASEAN sexuality and diversity, and human rights as a whole.
Published on June 20, 2017 | OutRight Action International an LGBT human rights organization