IV. Groups in vulnerable situations
A. The right to health of women and girls
1. Sexual and reproductive health and rights
32. However, the Special Rapporteur is concerned that, on the basis of certain restrictive interpretations of religious and cultural values and beliefs which dominate the political discourse and praxis, women and girls do not always have adequate access to comprehensive sexual and reproductive health services or comprehensive sexuality education.
33. The reproductive health services most needed, in particular among girls and young women, include access to safe, reliable and good-quality contraception; comprehensive maternal health services; safe abortion and treatment for complications of unsafe abortion; and prevention and treatment of sexually transmitted infection and HIV/AIDS (see E/CN.9/2014/4, paras. 68–77). These services should be provided irrespective of age and marital status. Evidence shows that access to comprehensive sexuality education has a positive impact on the knowledge and health-related behaviours of adolescents and youth, especially girls and women, as well as on their attitudes about gender equality (see E/CN.9/2014/4, para. 68).
34. Comprehensive sexuality education is not properly integrated into school curricula in Malaysia. Related educational programmes are often not based on evidence and have a stronger emphasis on abstinence than on providing information and education to girls to allow them to make free and informed decisions about their sexuality. This has contributed to the high prevalence of unintended pregnancies amongst girls, high numbers of underage marriages, unsafe abortions and a high risk of the spread of sexually transmitted diseases, including HIV/AIDS.{{12}}
D. Lesbian, gay, bisexual and transgender persons
83. Although discrimination on the basis of gender is prohibited in the Federal Constitution (art. 8 (2)), the rights of lesbian, gay, bisexual, and transgender (LGBT) persons are not explicitly recognized. Colonial-era provisions have been retained under the Penal Code and they criminalize sodomy (Penal Code, sects. 377(a) and 377(b)) and perpetuate discrimination against LGBT persons. In addition, discriminatory societal attitudes towards LGBT persons prevail in Malaysia and have been exacerbated over the past few decades by the use of a stigmatizing rhetoric by politicians, public officials and religious leaders.
84. Malaysia has become one of the few countries where transgender people are criminalized. Since the 1980s, a series of legislative initiatives, mostly undertaken under sharia enactments, prohibited “cross dressing” and forced transgender people, who had historically enjoyed a certain degree of acceptance in society, to go underground. In 1982, a fatwa issued by the National Fatwa Council, prohibited Muslims from undergoing sex reassignment surgery and since then very few hospitals have performed such surgery. The National Registration Department does not allow the gender indicator on identity cards to be changed, and this applies both to Muslims and non-Muslims.
85. Some Government institutions have recognized the health needs of transgender persons. The Ministry of Health has included transgender persons and men who have sex with men as a group at risk under the National Strategic Plan on HIV/AIDS 2011–2015, which gives them access to treatment and medication and is a positive step.
86. The criminalization of same-sex conduct and of different forms of gender identity and expression has reinforced negative societal attitudes and has led to serious human rights violations of the rights of this group of the population, including significant barriers in access to health care. Law enforcement officials arrest transgender women and subject them to various abuses, including humiliation in the media, and physical and verbal abuse.
87. Transgender women also face serious discrimination in public health-care facilities. They are often associated with sex work, which is a crime, and they are forcibly tested for HIV/AIDS. They are identified on the basis of their identity card and, unless they have undergone sex reassignment surgery, are often housed in male wards where they can be exposed to violence and abuse. The fear of stigma and discrimination deters transgender women, and other LGBT people, from seeking health care, with the consequent devastating effects that this can have.
88. The Special Rapporteur welcomes the judgement of the Court of Appeal issued on 7 November 2014 that found section 66 of the Syariah Criminal Enactment of Negeri Sembilan State criminalizing cross-dressing unconstitutional. The judgement of the Court of Appeal stated that section 66 of the Syariah enactment was not in conformity with the Federal Constitution and violated the rights to live with dignity, equality before the law and non-discrimination, and directly affected freedom of movement and expression. The judgement explicitly acknowledges the profound effect that section 66 has on the appellants who live perpetually at risk of arrest and prosecution simply because they express their gender identity. The Court of Appeal underlined that the existence of a law that punishes gender expression is degrading and deprives those affected of their dignity and value in society.
89. Laws that criminalize same-sex conduct, as well as legal enactments that criminalize transgender women, infringe on the enjoyment of the right to health and other basic human rights (see A/HRC/14/20, para. 6) which are guaranteed by the Federal Constitution and the international treaties that Malaysia has ratified, including the human rights to dignity, equality before the law and equal protection of the law, freedom from discrimination and freedom of expression.
90. During his visit, the Special Rapporteur was also very concerned about information received on programmes and practices supported by public institutions to change the sexual orientation of adolescents, so-called “corrective therapies”. Such therapies are not only unacceptable from the human rights perspective but they are also against scientific evidence, and have a serious negative impact on the mental health and well-being of adolescents. State-led programmes to identify, “expose”, and punish LGBT adolescents contribute to a detrimental educational environment where the inherent dignity of the child is not respected and discrimination on basis of sexual orientation and gender identity is encouraged.
E. Persons living with HIV/AIDS and drug users
92. Malaysia is a country with a concentrated HIV epidemic, with infection rates that remain high, above 5 per cent, among most-at-risk populations, which include drug users, sex workers, transgender persons and men having sex with men.{{30}} Measures have included making available evidence-based treatment, such as antiretroviral treatment and the implementation of harm reduction programmes, most of which have been in place since 2005.
94. Nevertheless, in recent years, Malaysia has seen a surge in HIV/AIDS infections due to sexual transmission, mainly affecting men having sex with men, but now also women.{{31}} The previous success in addressing the epidemic has been somewhat hampered by a lack of full adherence to universal human rights obligations and principles, and the subsequent lack of recognition of the rights of the groups most affected, including LGBT persons.
95. The experience of the HIV/AIDS pandemic has shown that the exposure of vulnerable groups to HIV/AIDS is reinforced through discrimination, stigmatization and disrespect for human rights. Discriminating and ostracizing vulnerable groups will only add to the continuation and further spread of HIV/AIDS. In order to address the increasing rate of sexual transmission of HIV, the Special Rapporteur encourages the authorities to step up their efforts and offer comprehensive sexuality education, which is a key component of the fight against AIDS.
F. Children and the right to health
101. Many recommendations made by the Committee on the Rights of the Child in 2007 have not been properly addressed, and important challenges remain, mainly concerning the girl child and children from disadvantaged groups, including indigenous children, children with disabilities, refugee and asylum-seeking children, undocumented migrant children and LGBT children.
103. The Special Rapporteur identified prevailing attitudes supporting punitive measures for children and the use of violence as a remedy, both in public and private settings. This is reinforced by national and local authorities, for example through the use of corporal punishment in schools, often against LGBT adolescents, which goes against the universal prohibition of torture and ill-treatment. He sees this as a serious systemic issue with a detrimental impact on society’s physical and mental health and well-being, ranging from child-rearing practices to public decision-making when addressing social problems.
V. Conclusion and recommendations
111. The Special Rapporteur recommends that the Government:
(e) Ensure that barriers to access sexual and reproductive rights of girls and women in Malaysia are removed, including by providing, regardless of age and marital status, sexual and reproductive health services and comprehensive adequate sexuality education and information;
(q) Decriminalize sodomy and remove any legal provisions that criminalize same-sex conduct and different forms of gender identity and expression so as to guarantee that the existing legal framework is in accordance with the Federal Constitution and international human rights law,
(r) Legally recognize the gender identity of transgender people and prohibit any discrimination on the basis of gender identity in all areas, including health, education, employment and access to public services;
(s) Put an end to State-led programmes that expose and punish LGBT children, and ensure that they enjoy safe and enabling spaces in schools, and other public and private institutions;
Link to full text of the report: Report-SRHealth-Malaysia-2015-eng
[[12]]12. World Health Organization (WHO) Western Pacific Region, Sexual and Reproductive Health of Adolescents and Youths in Malaysia: A review of literature and projects (2005), p. 51.[[12]]
[[30]]30. See Malaysia, Ministry of Health, “Global AIDS Response Progress Report: Malaysia” (2014). [[30]]
[[31]]31. International AIDS Society, “HIV and AIDS in Malaysia: Fact sheet”, seventh IAS Conference on HIV pathogenesis, treatment and prevention, 30 June–3 July 2013, Kuala Lumpur.[[31]]
