Talking to Heinrich Boell Foundation Myanmar, Yaya Aye Myat, the Permanent Secretary of the National Transgender People Alliance, regretted that the LGBTI community does not have any protection under the law. Even though the 2008 constitution guarantees equal rights and equal legal protection, she noted that LGBTI people do not enjoy such guarantees because they are treated like “second-class citizens”: A sentiment, which resonated with Zar Li Aye, a legal advisor with the International Commission of Jurists.
Official discrimination against the LGBTI community, particularly visible LGBTI people such as transgender women, is most visible in targeted police harassments, extortion, and arrests. In 2013, the LGBT community in Myanmar was outraged by a case where a group of gay and transgender people were assaulted by police, arbitrarily arrested, and tortured while in police custody.
When questioned about the incidence in a parliamentary session in Mandalay, the Border and Security Affairs Minister for Mandalay region, Dr. Myint Kyu, answered: “The existence of gay men who assume they are women is unacceptable and therefore we are constantly taking action to have the gays detained at police stations, educate them, then hand them back to their parents.… [W]e will be including in our operations the area as a special case.”
The police spokesperson, Soe Nyein, told the media that the police were doing a public service in stopping the community (LGBTI people) from congregating. According to the Myanmar LGBT Rights Network, the police only released the detainees after they had signed an agreement stating that they would stop dressing as women and visiting the southeast areas of the Mandalay moat, where they had been when arrested. While this case is not unique, it pointed to institutional structures, which enable human rights violations of the LGBTI people and which continue to thrive in the new government.
Legal documents override constitutional guarantees
Hla Myat, the Program Director of Colors Rainbow, observed that there has not been much improvement in how the police treat the LGBTI community quoting that, “the government changed but people on the ground, such as the police, never changed”. The legal provisions that have been used over years to justify the arrest of the LGBTI people have also not changed.
In addition to the 1860 Penal Code (section 377) which essentially criminalizes same-sex intercourse, the 1899 Rangoon Police Act and the 1945 Police Act , makes liable for arrest any ‘suspicious’ activity carried out “between sunset and sunrise” and any person found at this time with “his face covered or otherwise disguised”. In practice, the three legal documents seem to override constitutional guarantees such as the right to privacy, the right of defense, and protection from police custody of more than 24 hours without remand.
The constitutional limitation which only allows the freedom of expression, peaceful assembly, and association where not contrary to “the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality”, further places the LGBTI community in a precarious position where their constitutional rights could be arbitrarily violated.
Having represented LGBTI clients in court, Zar Li Aye noted that discrimination by authorities is not limited to the police as nuanced prejudice is also visible in the court process where the presumption of innocence does not seem to apply to the LGBTI defendants. Most LGBTI people do not seek legal redress when their human rights are violated, and some do not even report it to local human rights activists or to the LGBTI network.
A gay client once told Zar Li Aye, "We are gay. Section 377 (of the Penal Code) criminalizes LGBTI, so how can we go to the court or police station?" Having experienced similar comments, Hla Myat noted that,"They (the LGBTI people) are not aware that the network can make a change as they have never experience any success stories on the legal reform promised by the new government. They think that being LGBTI, one has to be familiar with the police custody." This disillusionment further makes the LGBTI people vulnerable to human rights violations in the society.
Silence from the National League of Democracy
Despite the NLD’s (National League of Democracy) promise to embrace diversity and democracy, its stance on LGBTI issues has been silence: A silence that is deafening to the LGBTI community. The Myanmar LGBTI Rights Network hopes that its advocacy, through both formal and informal channels, will culminate to positive change with regards to legal provisions and social stigma.
The network is advocating for section 377 of the Penal code to be repealed and is also working with other marginalized groups on an anti-discrimination bill which would prohibit discrimination based on gender expression and sexual orientation, among other criteria. While these efforts have energized the LGBTI community, much needs to be done by the government as the custodian of the rights of the Myanmar people.
The National Human Rights Commission’s potential in redressing human rights violations targeted at the LGBTI community is stunted by homophobic sentiments of some members of the commission. Yaya Aye Myat notes even though the commission is independent and seems to be open-minded to some extent, it still gets its cues from the government.
She pointed Heinrich Boell Foundation to an incident in 2016 where Win Htein, a senior aide to Aung San Suu Kyi, told Colors Rainbow, "I am not interested (in LGBTI issues). We cannot give priority to that particular issue. We have thousands and thousands of problems, and that gender issue is not important"
While indeed the government has as its national priority peace and security, it should also note that its priorities can be mutually inclusive. An inclusive democracy which guarantees the human rights of all its citizens without discrimination, will contribute to sustainable peace in the country.
When accepting the role of UNAIDS global advocate for zero discrimination in 2012, Aung San Suu Kyi said,
"It is a great honour to be chosen as a champion for people who live on the fringes of society and struggle every day to maintain their dignity and basic human rights. I would like to be the voice of the voiceless."
The LGBTI community in Myanmar is in need of this voice.
This article is part of our dossier How LGBTI activists fight for their rights worldwide.