Building Space for Lasting Change – LGBTI in Southeast Asia

The situations and conditions for LGBTI in Southeast Asia as follow:

(A)   Countries that criminalise LGBTI

INDONESIA: Pluralistic, Muslim-majority Indonesia does not criminalise same-sex relations, except in Aceh and South Sumatra provinces, some cities and districts.

Still, rising anti-gay rhetoric by politicians and officials have made it more difficult for LGBTI to organise, hold events and be open about their identities. Wielding Indonesia’s broadly-worded anti-pornographic law, which outlaws “pornographic action”, Muslim vigilantes, sometimes joined by police, have raided places where LGBTI are known to gather. These include a night club, the office of a HIV prevention organisation, and even private homes.

Through directives and recruitment guidelines, some government agencies have tried to exclude LGBTI.

Indonesia country came close to criminalising same-sex relations in September 2019, when legislators were due to consider amendments to its penal code that would have outlawed sex between people who are not married to each other. But protesters took to the streets, fearing that the bill, which also outlaws “obscene acts” in public and restricts abortion, would roll back decades of Indonesian progress on human rights. President Joko Widodo postponed discussion on it.

BRUNEI DARUSSALAM: The global storm over Brunei’s recently enacted Syariah Penal Code Order, which punishes gay sex with death by stoning, has faded somewhat after Sultan Hassanal Bolkiah announced in 2019 that the country’s moratorium on capital punishment would extend to its syariah laws.

Yet the affluent oil-funded monarchy retains onerous laws. Brunei’s secular penal code punishes anyone who has sex “against the order of nature” with whipping and up to 30 years’ jail.

Under its syariah law, sex between men, including that between a Muslim and non-Muslim, remains punishable by whipping and seven years’ jail. Lesbian sex is punishable by a B$40,000 fine, ten years’ jail, whipping, or any combination of two. Cross-dressing is punishable by three month’s jail and a B$1,000 fine.

Officials say the burden of proof is very high and the laws function more like a deterrent. LGBTI in Brunei fear the law will embolden conservatives and encourage harassment and blackmail.

SINGAPORE: Singapore retains a colonial-era law, Section 377A, which prescribes up to two years’ jail for any man who commits “any act of gross indecency” with another man.

Wary of upsetting conservatives among its electorate, including a vocal evangelical Christian minority, the ruling People’s Action Party government has resisted calls to repeal the law, but promised not to proactively enforce it. Activists say this law is often used to justify discrimination and makes it difficult for LGBTI youth to reconcile with their identities.

Singapore’s media licensing regime prohibits attempts to “justify a homosexual lifestyle”. LGBTI groups are denied registration as societies.

In 2014, the court of appeal dismissed two separate challenges arguing that Section 377A violated the constitutional right to equality. In November 2019, a Singapore court heard three fresh challenges to the controversial law.

Pink Dot, an annual rally of LGBTI and their allies in downtown Singapore to challenge discrimination, attracts thousands of participants each year, despite changes to the law to effectively ban foreigners from the venue.

While Singaporeans who undergo sex-change operations can alter the gender on their identity cards, public hospitals stopped offering the procedure in 2013.

MALAYSIA: Same-sex relations have long been criminalised under separate laws that Malaysia has for Muslims and non-Muslims. But LGBTI have become more vulnerable lately amid rising ethno-religious rhetoric used by former ruling party UMNO, which recently allied with the ultraconservative Parti Islam SeMalaysia.

The opposition camp, branding itself as the protector of Islam and Malay rights, claims the governing Pakatan Harapan coalition government is too “liberal”.

Meanwhile, both Prime Minister Mahathir Mohamad and premier-in-waiting Anwar Ibrahim – previously jailed on colonial-era sodomy charges – have publicly rejected LGBTI rights. Islamic Affairs Minister Mujahid Yusof Rawa says the government is trying to rehabilitate LGBTI.

High profile raids by Islamic enforcement authorities have stoked fear. In November 2019, five men were sentenced to jail, fines and caning for attempting to have sex with men. They were part of a larger group detained in an apartment in 2018 by officers who had monitored their messages, say activists.  In September 2018, two women were caned at a Terengganu state syariah court for attempting to have sex with each other – the first time women have been caned for such a violation, say activists.

MYANMAR: Myanmar’s National Youth Policy, enacted in 2018, mandates ending discrimination based on sexual orientation or gender identity. But sweeping pre-independence laws allow police to harass and blackmail LGBTI.

Section 377 of Myanmar’s penal code prescribes up to ten years’ jail for “carnal intercourse against the order of nature”. Section 30 of the Rangoon Police Act and Section 35 of the Police Act, known locally as “darkness laws”, allow police to detain anyone loitering after sunset without a satisfactory explanation.

Police have invoked Section 377 to enter homes of people suspected of having gay sex and used the “darkness laws” to make arbitrary arrests of transgender women in particular. The victims were very often doing normal things like returning home from work or taking a stroll.

Yet Myanmar’s LGBTI events have gradually come into the open. In 2018, authorities granted permission for a Pride event to be held in a public park in Yangon for the first time, and it was attended by some 12,000 people. In 2019, a flotilla of boats sailed down Yangon’s river in a Pride boat parade.

 (B) Countries that do not criminalise LGBTI

VIETNAM: Communist-ruled Vietnam has steadily dismantled legal hurdles for LGBTI since 2013, when it abolished fines for same-sex weddings. In 2014, the Law on Marriage and Family was amended to lift the prohibition on same-sex marriages – without actually recognising same-sex marriage.

Changes to Vietnam’s Civil Code allowed transgender people who have undergone sex reassignment surgery to register their new gender from 2017. A draft law that will enshrine these protections is expected to be discussed by the National Assembly in 2020.

Patriarchal societal attitudes remain the biggest hurdle. While hate crime is rare, LGBTI commonly face violence from family members when they come out, say activists.

LGBTI and their issues are getting more coverage in state media. Pride parades have taken place since 2012, but organisers have to negotiate with local authorities wary about large public gatherings.

CAMBODIA: Cambodia LGBTI tread on ambiguous territory. While same-sex marriage is not prohibited, the constitution states that marriage is between a husband and a wife. Local officials have issued marriage certificates to a few same-sex couples by designating one spouse as a “husband” and the other as “wife”. Same-sex couples often find it difficult to get a Family Record Book – a commonly-used identity document. Among those that obtain it, the spouses are often recorded as siblings. The Rainbow Community Kampuchea Organisation has tried to provide some legal protection through a document called “Declaration of Family Relationship”, signed by same-sex couples in the presence of local officials.

Cambodian law does not allow a legal change of gender.

Societal discrimination and family violence persist, with some female-born LGBTI forced or pressured to marry men. Discrimination, especially in rural areas, limits their job opportunities.

In February 2019, Prime Minister Hun Sen said Cambodia was not ready to legalise same-sex marriages but appealed to the public to not discriminate against LGBTI.

LAOS: Laos neither criminalises nor protects LGBTI. While same-sex relations are not criminalised, same-sex marriage is not legal. A transgender person cannot legally change his or her gender.

Societal stigma persists, especially against transgender people.

Laos’ communist government keeps a very tight rein on civil society groups but has acknowledged LGBTI issues. In 2015, a transgender outreach worker was able to talk about her hopes on national television as state-owned Lao National Television covered the local commemoration of the International Day Against Homophobia, Transphobia and Biphobia.

Proud To Be US, a local LGBT group, has also collaborated with the National University of Laos and the Law and Development Partnership to document the conditions and attitudes of Vientiane-based LGBT employees and their employers.

TIMOR LESTE: In Timor Leste, crime motivated by discrimination on the basis of sexual orientation is an aggravating factor in sentencing. Generally though, the country’s laws are silent on same-sex relations and gender identity.

Catholic-majority Timor Leste organised its first Pride march in 2017, in the capital of Dili. Then prime minister Rui Maria de Araujo recorded a video message ahead of the event, urging Timorese to accept people of different sexual orientations and gender identities.

In this conservative, patriarchal society, lesbians, bisexual and transgender women have been ostracised and physically attacked by their families, or raped or forced to marry men.

Teasing and abuse in schools have made LBGTI youth reluctant to attend school, affecting their education and employment opportunities.

 (C) Countries with laws that protect LGBTI

THE PHILIPPINES: Filipino LGBTI are protected by their fellow citizens’ relaxed attitudes as well as an increasing numbers of local ordinances that outlaw discrimination on the basis of sexual orientation and gender identity. Over two dozen cities, provinces and barangays in Catholic-majority Philippines have enacted these ordinances so far.

In 2019, a broader anti-discrimination bill that penalises harassment and the stigmatisation of LGBTI which had sailed through the House of Representatives did not make it past the Senate before it adjourned in June. The bill has been refiled for consideration but faces stiff opposition from some senators.

The Philippines elected its first transgender lawmaker, Geraldine Roman, in 2016.

President Rodrigo Duterte, who sparked outrage when he said he cured himself of being gay, has flip-flopped in his support of LGBTI rights.

In September 2019, the Supreme Court dismissed a same-sex marriage petition based on a technicality, saying the matter was better left to legislators.

THAILAND: Despite its gay-friendly reputation, it was only in 2015 that Thailand enacted a law that prohibited discrimination based on “the fact that the person is male or female or of a different appearance from his/her own sex by birth”.

While transgender women are highly visible in Thai society, and the kingdom is a popular place for sex-change operations, Thai law does not allow a legal change of gender. 

LGBTI youth face bullying in schools. Some government-approved textbooks that pronounced homosexuality as a “problem” were modified in 2019 with inputs from activists.   

In December 2018, the Thai cabinet gave in-principle approval to a draft civil partnership bill that will allow same-sex couples to jointly own and inherit. As at end 2019, the draft law had not made it to parliament. The Constitutional Court refused to consider a petition by a lesbian couple who argued that current law allowing marriage only between a man and woman is unconstitutional.

Meanwhile, four openly LGBTI politicians were selected by their party to take seats in House of Representatives – a first for the country. Their selection was the result of the March 2019 national election, and through the party list system.

 ADVOCACY STRATEGIES

Intersectional solidarity Working together with other human rights groups or on issues that may not directly have an impact on LGBTI was something which evolved naturally in some places. In several countries in Southeast Asia, this approach has become vital.

Discussion about the welfare of gay and bisexual men, for example, first entered the mainstream through public campaigns to combat the spread of HIV that also involved effort to halt transmission from mother to child, and also through heterosexual sex.

These days, LGBTI rights discussions can be explored in events about media freedom, progressive faith, or general human rights. These collaborations strengthen civil society as a whole.

On the flip side, the advance of LGBTI welfare cannot be done in isolation, at the expense of general human rights. Activists warn against “pinkwashing” and say it’s important that those in power not be allowed to use minor concessions on LGBTI issues to gloss over larger attacks on democracy and freedom of expression.

Allies and advocates Cultivate, support and promote the work of key allies.  In Cambodia, activists have worked with local officials who bear witness to the signing of Declarations of Family Relationship for same-sex couples, to provide some legal protection in the face no official recognition for same-sex marriage. 

Singapore’s ambassador-at-large Tommy Koh, as well as prominent corporate couple Ho Kwon Ping and Claire Chung, are high profile advocates for the repeal of Section 377A, which criminalises sex between men.

In Indonesia, the Youth Interfaith Forum on Sexuality is flourishing. APCOM continues to have conversations with some Islamic clerics and Protestant pastors who are open to interpreting religious texts in a progressive manner. In Central Java, transgender man Amar Alfikar, also active in GAYa NUSANTARA, promotes diversity while teaching in an Islamic boarding school that his parents founded.

Visibility Myanmar’s Miss Universe contestant Swe Zin Htet became the first openly lesbian contestant in the beauty pageant’s history when she came out in 2019. One year before that, Myanmar male actor and model Okkar Min Maung came out by Facebook video, stunning a country more used to stereotypes of effeminate gay men.

Visibility is important, whether in the form of celebrities, public gatherings like Pride events, or on a quiet everyday level in the school or workplace. Coming out and being visible in society is vital to counter the discourse that LGBTI are products of Western influence and inimical to local culture.

Acceptance becomes easy when more people are aware LGBTI are friends, relatives, colleagues and neighbours – and look as similar or different as anyone else.

Financial and economic inclusion Social exclusion heightens inequality that is very prevalent in this Southeast Asia region. LGBTI living in urban areas, for example, have access to vastly more resources and support than those living in rural areas.

Meanwhile, homophobic bullying and strict gender conformity in schools often make LGBTI more likely to drop out. This limits employment opportunities already narrowed by their own shunning of jobs that would not allow them to express their identities.

LGBT groups should work towards bridging these gaps to promote financial and economic inclusion of the most disadvantaged individuals.

Legal advocacy Challenging legal boundaries can come in the form of demanding laws against discrimination or questioning the constitutionality of laws that criminalise gay sex or fail to recognise same-sex unions.  Mounting periodic challenges open spaces for the legal system to adapt to fast evolving social environments.

At the same time, it is important to create an environment that not only penalises discrimination but also promotes respect and acceptance of diversity.

As societies evolve, new allies and advocates for LGBTI equality spring from even the most challenging conditions. Southeast Asia offers a rich environment for finding commonality and harnessing the best practices for LGBTI advocacy. APCOM believes the strategies here are only a fraction of the long list in practice, and is committed to creating more space for lasting change

The Universal Declaration of Human Rights and LGBTI Rights in ASEAN - Dr. Dédé Oetomo - Heinrich-Böll-Stiftung Southeast Asia

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Acknowledgements

In putting together this report, APCOM was generously informed by the opinions shared by the following LGBTI activists:

Alan Seah (Singapore), Pink Dot

Amar Alfikar (Indonesia), GAYa NUSANTARA

Aung Myo Min (Myanmar), Equality Myanmar

Bern Chua Hang Kuen (Malaysia), Universiti Sains Malaysia

Charmaine Tan (Singapore), Pelangi Pride Centre

Kong Yara (Cambodia), Micro Rainbow International Foundation

Ly Pisey (Cambodia), Rainbow Community Kampuchea

Luong The Huy (Vietnam), Institute for Studies of Society, Economy and Environment 

Mia Nguyen (Vietnam), Ladies of Vietnam

Roy Tan (Singapore), Independent archivist of LGBT history

Ryan V. Silverio (Philippines), ASEAN Sexual Orientation, Gender Identity and Gender Expression Caucus