Looking at the Human Rights for the LGBT or Transgender Person

Legal and Human Rights LGBT Religious Rights

Diversity of Public Opinions

The statement made by the Minister in the Prime Minister’s Department for Religious Affairs, YB Datuk Dr Zulkifli Mohamad Al-Bakri calling on the Religious Enforcement Officers of Federal Territories’ Islamic Affairs Department (JAWI) to not arrest but also provide religious education so that the transgender community can “return to the correct path” has sparked opposing responses from several quarters.

For instance, LGBTQ activists group Justice4Sisters says the Honourable Minister’s statement “will increase discrimination, violence and mistreatment of transgender women with impunity by enforcement officers of the Islamic Departments as well as members of the public”.[1] Justice4Sisters are concern that questions are already being raised over the personal security, safety and well-being of transgender persons across the country since the release of the statement.

In support of the Honourable Minister’s statement is the Malaysian Alliance of Civil Society Organisations (MACSA) who affirmed the rights of the transgender community to seek education and help in the form of education camps organised by the Department of Islamic Development (JAKIM) called “Mukhayyam”. MASCA is of the firm view the Mukhayyam programmes are completely voluntary with many past participants finding it helpful.

Stories of Mukhayyam being voluntary and helpful led to criticism that such programmes are in fact nothing more than conversion therapy or in line with conversion therapy as understood worldwide notwithstanding differences in methodology. At the crux of this criticism is the question raised by the LGBTQ activists, how voluntary are LGBT people’s participation in such programmes when they live in a society that criminalises, marginalises and stigmatises them? This question follows from a series of general observations that in Malaysia, rehabilitation programmes targeting LGBT persons and behaviour all contribute to social stigma against the LGBT persons. LGBTQ activists claim that such living conditions are homophobic and transphobic environment leading many LGBT or transgender people to understandably want to seek change or suppress their sexual orientation and gender identity simply to be accepted.

Some Matters Needing Further Considerations

Questions abound as to the veracity of such claims and assertions. For example, in terms of methodology, what is it in the Mukhayyam programmes that have successfully or have failed to meet with human rights standards? Who sets the criterions for such standards and what are the measures to determine the criterion for meetings such standards? Are such criterion accepted by all without disputes or reservations? Conversely, when can it be said that a person has bowed to social stigma that leads the person to understandably seek change? On the flip side, when does voluntary becomes involuntary based on social pressures? What are the established and undisputed indicators or perhaps an index to determine voluntariness?

It is not my purpose or aim to address these complex questions in this short essay. Addressing these questions will require greater examination of details, specificity and context as well as to scrutinise the variety of inputs and evidence not reflected in the recent statements by the LGBTQ activists. Rather, my purpose is more modest and that is to explore whether the lex generalis observation and claim made by the LGBTQ activists – that homophobic and transphobic environment leads many transgender people to seek change or suppress their sexual orientation and gender identity simply to be accepted in society – comports with the human rights of the LGBT or transgender person.

Whence the Human Rights for the LGBT or Transgender Person?

Leaving aside the dogma and religious instructions of any religious groups on the issue of LGBT rights or the rights of transgender to receive religious instructions or input, what does human rights have to say about this general observation by the LGBTQ activists? Do their claim as reflected in their recent statements really defend or uphold the human rights belonging to a LGBT person or transgender as so many people have come to assume?

Face value perceptions often equate the defence of human rights of the LGBT or transgender person with non-discrimination requiring that all persons irrespective of sexual orientation and gender identity should never be subjected to elements within society that criminalise, marginalise and stigmatise them. Neither should a LGBT person or transgender be made to live in such homophobic and transphobic environment that causes them to understandably want to seek change or suppress their sexual orientation and gender identity. Implicit in this defence of human rights is the right to safe space and the conditions necessary to facilitate the exercise of free choice and self-determination.

In this, human rights requires that community, society and even the nation-state to adhere to certain universal principles and standards to ensure the rights of the individual and community be safeguarded and protected. However, social recognition and legal enforcements of all people’s equal entitlement to the existence of human rights is posterior to a more normative moral basis for the existence of human rights.  If human rights defenders and advocates are to be true to the value of human rights, it obligates them to recognise and uphold first and foremost a moral basis that serves as the foundation for the existence of rights for the human person. It is through this foundational moral basis of human rights that all other subsequent principles and manifestations of rights deserve the call for equal provision and protection so that they may be safeguarded and guaranteed, either through laws, policies and constitutionally.

This raises a critical question normally not asked. Is the assertion that the LGBT person or transgender living in homophobic and transphobic environment which causes them to renounce or suppress their own sexual orientation and gender identity for the reason they wish to be accepted within wider society runs contrary to the basic premise and this foundational moral basis of human rights of which we speak about? This critical question has a wider bearing on whether there exist subtle inconsistencies in the claims by the LGBTQ activists that they are really defending the human rights of the LGBT or transgender person.

We catch a glimpse on the weight and far reaching implications of this critical question in the responses of the many ex-LGBT or ex-transgender people. Already, we are seeing a number of representatives from groups such as Usrah Iqrak, Muhajirah WAFIQ, PINTAS, Hijrah Republique, Islah Movements having gone on record to deny that the Mukhayyam programmes are violent in nature, forced upon them or that they were in any way pressured or compelled to attend such programmes and change their inclinations and lifestyle simply because they felt criminalised, marginalised and stigmatised to do so.

The Moral Basis for Human Rights

What then is this moral basis as foundation for human rights which we speak about that the LGBTQ activists have either ignored or perhaps unknowingly called into question? We begin with the undeniable fact of life that every human being is a moral agent capable of the necessary goods of action. A moral agent capable of the necessary goods of action presupposes human action and human agency. It means that every human being can act in ways that makes certain evaluative and deontic judgements, judgement about that which is good and right subject to certain moral rationalistic requirements and capacities. From an empirical standpoint, this principle of agency could never be denied for to deny this principle is to contradict the person and his agency since his actions stemming from himself cannot be rationally justified.

This principle of agency and human action therefore serves as the foundational moral basis for any human rights. It recognises that any actions as conceived morally or by any other practical precepts have two generic features. One is voluntariness or freedom – in that the person has control or in control over his behaviour. The other feature is his action is purposive or intentional – in that the person aims to attain some end or goal which constitute the reason for the act. Off course, as alluded to above, this is not to negate the restrictions and contingencies that may act against voluntariness or purposiveness. But that would require specificity and context and since we are addressing the general assertion made by the LGBTQ activists, we must confine our discussion to the necessary contents rather than to the contingent contents of human rights.

In the interplay between these two features in human action, we may conclude a person has the capacity to choose to perform a certain form of action and act towards a purpose. Implicit in that purpose is a certain value-based judgement that the purpose for which a person seeks has a moral good which the person attributes to it. The performance of that action or acts towards the good the person attributes to it will also serve for his general and overall wellbeing. The wellbeing, the conditions for which a person believes it to be good for him will ultimately be to his own beneficial interests.

By virtue of the beneficial interest accruing to a person, his human action then has an ineluctable element of worth in it. It is on the basis of the person’s purposive action, the person as a moral agent may regard the goal of his action as good and therefore worthy of attaining. Here, the agent is both the source and attribution of that worth in his own action. As he attribute worth to his action, the person in the agency of action is always a moral person that acts subject not only to external forces but can and does make choices and decisions on the basis of his own reflective understanding and appraisal of any situation. This also is the point implicit in Kant’s Categorical Imperatives. And by these characteristics of action, a person may be said to be in possession of worth and dignity.[5] He is a person with dignity and a person with dignity is a person invested with that quality and capacity for the determination of his behaviour and acts towards an end which he so reflectively chooses to achieve since he deems it as good.

We have therefore demonstrated that human action becomes the moral basis as the foundation of any human rights in that human action possess the generic feature of voluntariness along with the freedom and autonomy to regard the purpose for which a person chooses to act upon to be good and worthy of attaining. It is unfortunate that by referencing a claim and turning that assertion/claim to a general statement of fact, the LGBTQ activists have inadvertently denied or acted contrary to the human rights of the LGBT or transgender person themselves in one of two ways.

First, the general statement of fact has failed to account that the LGBT or transgender is a moral person with the capacity to act against and not subject themselves to external forces such as homophobic and transphobic environment but can and do make choices and decisions on the basis of his own reflective understanding and appraisal of the situation. This includes the capacity to transcend any external negative environment to act voluntarily upon the very purpose and overall wellbeing the LGBT or transgender person may themselves attribute to be good or worthy to pursue such as seeking change in their sexual orientation and gender identity.

Second, the general statement of fact does not give due regards to and accept that the LGBT or transgender person is a moral person invested with the freedom and autonomy to make a valued-based judgment on the good of a particular purpose which they may ascribe to it and thereupon to act on that purpose as good. By pointing to external conditions such as the homophobic and transphobic environment as the likely cause to seek change or supress their sexual orientation and gender identity, the LGBTQ activists have in effect disregarded, if not reduced the freedom and autonomy of the LGBT or the transgender person to identity the numerous other purposes that they may attribute as good and worthy to pursue as oppose to the claim that homophobic and transphobic environment or any other form of social pressures as the reason or cause upon which they act towards their overall wellbeing and beneficial interest.

Moving Forward: Respecting Rights-Accepting Differences

In this era of post-modernisation as some would have it, the inconceivable reality is such there will always be those who will give due regard and choose the lifestyle as a LGBTQ person for whatever the reasons a person may subscribe to. In that, it is their moral choice of what they deem as good and to act upon that which they believe as good. But there will also be those who as an autonomous and free-willed individual, who being in control of his own behaviour and destiny, may choose a life against whatever impulses or orientation he may have in favour of more traditional lifestyle in line with conservative religious values. To this group may be added those who have same-sex attractions or other inclinations but willingly chose to undergo and submit themselves to self-help programmes such as the Mukhayyam or other religious based counselling sessions.

Undoubtedly, there will be in existence contingencies and limiting circumstances to the general observations made by LGBTQ activists to the effect that transgender living under homophobic and transphobic environment may be compelled or even forced to undergo change or suppress their sexual orientation and gender identity. These contingencies and circumstances however, must be examine and proved on a case by case basis rather than through a general assertion of fact. As we have seen, a general assertion of fact that spread across the board implying that all those who undergo the Mukhayyam or other similar programmes and have come to sought change for fear of being criminalise, marginalise and stigmatise will only result in devaluing the dignity and disrespecting the essence of human rights in the LGBT or transgender person.

As an empirical ascertainable phenomenon, the fact that there are those who have testified they have been genuinely helped by the Mukhayyam programmes clearly demonstrates the point we are making with respect to human rights – every human agent is capable of acts subject not only to external forces but can and does make choices and decisions on the basis of his own reflective understanding and appraisal of any situation. This includes the decision to change as to the purpose which a person has attributed it to be good to pursue and to act upon. That this is the cardinal principle for which human rights ought to exist for every living human person irrespective of identity or orientation cannot and should not be dismissed. It is all the more necessary for those whose moral choices are upon reflection and by valued-based-judgment, even as coming from religious instructions or what some may say, outdated patriarchal religious injunctions. To these who have chosen what they believed and attributed to be good, worthy to pursue and therefore dignified to hold, they too must similarly be accorded the decency of human rights without question.

Eugene Yap
Programme Director,
GBM Coalition SB
15 August 2020


[1] https://justiceforsisters.wordpress.com/

[2] https://macsa.com.my/uphold-religious-and-spiritual-values-on-sexual-morality-and-family-unit/

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