A Muslim in his 30s – whose name was revoked by a lawyer to protect his privacy – filed a lawsuit after he was arrested in the central state of Selangor in 2018 for attempted homosexual sex, which he denies.
Same-sex acts are illegal in Malaysia, although convictions are rare. The country, which has 13 states, has a two-way legal system, with Islamic criminal and family laws applicable to Muslims alongside civil laws.
LGBT + lawmakers say Islamic laws are increasingly being used to target the Southeast Asian country’s gay community, with arrests and sentences ranging from preparation to imprisonment.
In a unanimous decision, Malaysia’s highest court ruled on Thursday that the Islamic provision used in Selangor is unconstitutional and that authorities are not authorized to pass the law.
“This is historic. This is monumental to LGBT + rights in Malaysia,” said Numan Afifi, founder of the LGBT + rights group Pelangi Campaign, which did not participate in the lawsuit.
Numan hoped that Selangor would immediately lift the Islamic ban, and other states followed suit.
Despite the verdict, gay Malaysian men continue to face up to 20 years in prison under British colonial-era law banning homosexual sex, known as Section 377.
“We want to live with dignity without fear of prosecution. Of course, section 377 still exists – it’s not the end, but this is the beginning,” Numan told the Thomson Foundation to Reuters.
In Malaysia, a country of 32 million where 60% of the population is Muslim, many homosexuals are not open to their sexuality.
The man who initiated the legal challenge argued that Selangor did not have the strength to enforce the Islamic ban on “intercourse against the natural order” when homosexual sex was already a crime under civil law.
The court agreed, saying the state’s power to carry out such acts was “subject to constitutional restrictions,” Supreme Court Justice Tengku Maimun Tuan Mat wrote in the ruling.
The Selangor Islamic Religious Council, the defendant in the lawsuit, did not immediately respond to a request for comment.
A man involved in the legal dispute was among 11 men arrested on suspicion of trying gay sex during a raid on a private residence.
Five of the group pleaded guilty and were sentenced to prison, canning and fines in 2019, sparking outrage among human rights activists who said it created an environment of fear for LGBT + people.
Two women were punished for “attempting lesbian sex” under Islamic law in the state of Terenggan on the East Coast in 2018, the same year a transgender woman was attacked.