The Muslim man in his 30s – whose name was withheld by his lawyer to protect his privacy – opened the case after being arrested in Selangor state in 2018 for attempting gay sex, which he denies.
Homosexual acts are illegal in Malaysia, although convictions are rare. The country, which has 13 states, has a two-way legal system, with Islamic and family criminal laws applicable to Muslims in parallel with civil laws.
Defenders of LGBT + say that Islamic laws have been increasingly used to target the Southeast Asian country’s gay community, with an increase in arrests and punishments ranging from beatings to prison.
In a unanimous decision, Malaysia’s higher court ruled on Thursday that the Islamic provision used in Selangor was unconstitutional and the authorities had no power to enact the law.
“This is historic. This is monumental for LGBT + rights in Malaysia,” said Numan Afifi, founder of the LGBT + rights group Pelangi Campaign, which was not involved in the process.
Numan expected Selangor to immediately repeal the Islamic ban, with other states following suit.
Despite the decision, Malaysian gays can still face up to 20 years in prison under a British colonial-era law that prohibits gay sex, known as Section 377.
“We want to live with dignity without fear of being prosecuted. Of course, Section 377 is still there – it is not the end, but it 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 launched the lawsuit argued that Selangor had no power to impose an Islamic ban on “sexual relations against the order of nature” when gay sex was already a crime under civil law.
The court agreed, declaring that the state’s power to decree such crimes “is subject to a constitutional limit,” wrote court president Tengku Maimun Tuan Mat in the decision.
The Islamic Religious Council Selangor, a defendant in the lawsuit, did not immediately respond to a request for comment.
The man involved in the lawsuit was among 11 men arrested on suspicion of attempting gay sex during an operation at a private residence.
Five of the group pleaded guilty and were sentenced to prison, punishments and fines in 2019, generating 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 state of Terengganu, on the east coast, in 2018, the same year that a transgender woman was attacked.