The Muslim man in his 30s – whose name has been withheld by his attorney to protect his privacy – has filed the lawsuit after he was arrested in 2018 in central Selangor for attempted gay sex, which he denies.
Same-sex acts are illegal in Malaysia, although convictions are rare. The country, which has 13 states, has a dual-track law system, with Islamic criminal and family laws applicable to Muslims running alongside civil laws.
LGBT + advocates say Islamic laws are increasingly being used to attack the Southeast Asian country’s gay community, with an increase in arrests and sentences ranging from caning to jail time.
In a unanimous decision, Malaysia’s highest court ruled on Thursday that the Islamic provision used in Selangor was unconstitutional and that the authorities did not have the authority to enact the law.
“This is historic. This is monumental for LGBT + rights in Malaysia,” said Numan Afifi, founder of LGBT + rights group Pelangi Campaign, who was not involved in the lawsuit.
Numan hoped Selangor would immediately repeal the Islamic ban, while other states would follow suit.
Despite the ruling, gay Malaysian men still face up to 20 years in prison under a British colonial law prohibiting gay sex known as Section 377.
“We want to live a life of dignity without fear of persecution. Section 377 is still there, of course – it’s not the end, but this is a beginning,” Numan told the Thomson Reuters Foundation.
In Malaysia, a country of 32 million people where 60% of the population is Muslim, many gays are not open about their sexuality.
The man who started the legal challenge argued that Selangor did not have the power to enforce an Islamic ban on “intercourse against the order of nature,” when gay sex was already a crime under civil law.
The court agreed, stating that the power of the state to carry out such crimes “is subject to a constitutional limit,” Chief Justice Tengku Maimun Tuan Mat wrote in the ruling.
The Selangor Islamic Religious Council, a respondent in the lawsuit, did not immediately respond to a request for comment.
The man involved in the legal challenge was one of 11 men arrested on suspicion of attempting gay sex while raided a private home.
Five of the group pleaded guilty and were sentenced to imprisonment, caning and fines in 2019, sparking outrage among human rights activists who said it created an environment of fear for LGBT + people.
Two women were beaten for “attempted lesbian sex” under Islamic law in the east coast state of Terengganu in 2018, the same year that a transgender woman was attacked.