In Consideration of the Equality Act 2021: Some Lessons on Sex and Gender Relations for Malaysian Society

Legal Advocacy Legal and Human Rights LGBT Viewpoints

The Equality Act (EA), a US legislation whose purpose is to prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and other related purposes was first introduced on 18 February 2021. The bill was passed by the US House of Representatives on 25 February 2021 and was received by the House of Senate on 2 March wherein it received its first and second reading. It is currently placed on Senate Legislative Calendar under General Orders.

The findings and purpose of the EA is stated amongst others as providing the following: 

Discrimination can occur on the basis of the sex, sexual orientation, gender identity, pregnancy, childbirth, or a related medical condition of an individual, as well as because of sex-based stereotypes. Each of these factors alone can serve as the basis for discrimination, and each is a form of sex discrimination.

A single instance of discrimination may have more than one basis. For example, discrimination against a married same-sex couple could be based on the sex stereotype that marriage should only be between heterosexual couples, the sexual orientation of the two individuals in the couple, or both. In addition, some persons are subjected to discrimination based on a combination or the intersection of multiple protected characteristics. Discrimination against a pregnant lesbian could be based on her sex, her sexual orientation, her pregnancy, or on the basis of multiple factors.

Lesbian, gay, bisexual, transgender, and queer (referred to as “LGBTQ”) people commonly experience discrimination in securing access to public accommodations—including restaurants, senior centres, stores, places of or establishments that provide entertainment, health care facilities, shelters, government offices, youth service providers including adoption and foster care providers, and transportation. Forms of discrimination include the exclusion and denial of entry, unequal or unfair treatment, harassment, and violence. This discrimination prevents the full participation of LGBTQ people in society and disrupts the free flow of commerce.

At first glance, the purposes within the EA seems noble and needful. After all, why should people who identify as LGBTQ not be protected from discrimination and be accorded every right to public goods as they seek to live the normalcy of their lives? The answer however is not nearly as straightforward as it might seems or as its often made out to be. 

The EA has many ramifications that impact sexual and gender relations. Though it’s a legislation that is set in the US, it provides many lessons for us to avoid similar pitfalls in Malaysian society.

First, LGBTQ people must enjoy the full protections of existing laws like all other citizens of the nation. There should not be an exception to their case. In doing so, they should however not be granted special privileges and rights to certain views on sex and gender. Their protection should be such that it is afforded to any sexual minorities like that of anyone else.

Provisions in our own Federal Constitution provides that every person shall be equal under the law and have equal protection of the law. This includes discrimination on the basis of gender. This provision makes it clear that there shall not be a special class or privileges to certain views of sex and gender and any legislation or policy to that effect must be avoided.

Second, in certain circumstances when LGBTQ people are denied certain social goods or services, it is never about their identity or based solely upon their identity. It is rather upon on certain expressions and conduct of their doing. This is an important distinction to note and realised. The two notions should not be confused or obfuscated. Identity goes to who they are and anyone who voluntarily and willingly affirms and identifies themselves to be LGBTQ, must have their choice or expression respected. While religious groups may not wish to encourage such conducts and continuously seek to have them rethink their life choices or identity, undue influence and compulsion in any way should never be the case.

But expression and conduct may in given circumstances be met with challenge, alternatives or even dissent. For example, if an LGBTQ person seeks to live peacefully and live out his life in private and seek an honest living, the person ought to be protected. But if the person’s conduct is to belittle religion, or religious practices or traditions of a community over time, showing disrespect and even refusal to submit to the rule of law, then that person’s conduct ought to be questioned and be held accountable.

While acknowledging that there are groups calling upon the LGBTQ people to be left alone and not be prosecuted when charged for alleged offences, this could in effect be tantamount to creating a set of special privileges and right for the LGBTQ person to be exempted from the rule of law. In such a case, the LGBTQ individual or group are really a special class of persons who can do anything and yet enjoy the protection and exemption from the due process of the law. This ramification under the proposed EA is now becoming clear resulting in caution and objections from wider society in the US.

Third, there is a need to ask, who then is really discriminated and who are not? LGBTQ groups and activists assert it is the LGBTQ people who are discriminated because they face unjust prosecution and therefore persecution. Others says LGBTQ people becomes victims of unwanted acts to make them change and forgo their own authentic identities and being. 

In the light of the EA, we need to critically examine and ask the question are all these assertions real or are they really a dilution of the actual matter at hand – real discrimination is upon those who have a very different version and account of sex and gender such as traditional religion and their respective institutions. Answers to this question are nearly never as straightforward as it seems. 

It has been said before that there is wide spread stigmatising on those who disagree or dissent to prevailing SOGIE ideology or views, often characterising them as bigots or hypocrites. Are these not discrimination or can it not be said these are people who similarly face discrimination? 

Then there are those who asserts that such traditional religionists are not to impose their views and stance on others and should desist from practices that are harmful to those LGBTQ people. In effect, isn’t this prescribing what religious people and to religious groups what they ought or ought to not do and say? Are these therefore not discriminatory of the right to religious freedom or right to religious belief, profession of faith and practices? Isn’t this discriminatory on the human rights of the religious groups and individuals.

Social-religious commentators in the US are now raising the alarm bell. They are saying that grounds for enacting legislations such as the EA are simply not there. Far from justifying the EA, American society needs a recommitment to protecting the religious freedom of those whose views on human sexuality and gender diverge from the emerging consensus on these matters. For us in Malaysia, it is wise we take heed and avoid the very circumstances and conundrum that American society are in. It will go a long way in avoiding the contentions, divisions and consequently the death knell to our quest for national unity and perpaduan.

Mr Eugene Yapp
National Unity Programme Director

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