Lesbian, bisexual, transgender, and intersex (LBTI) people in Brunei are marginalised, and receive a lot of backlashes legally as well as socially, economically, and politically. The Brunei Penal Code discriminates against and poses grave threats to LBTI people. Consensual same-sex acts can be punishable by stoning to death, in keeping with Sharia Law.
Like other former British colonies, Brunei Penal Code has Section 377 that criminalises “carnal intercourse against the order of nature with any man, woman or animal” with up to ten years in prison and a fine. Any form of sexual conduct between women (“lesbianism”, referred to as “musahaqah”) is punishable with up to 40 strokes with whips and prison terms up to 10 years.
The penal code also criminalises nonconforming gender expression, punishing “any man who dresses and poses as a woman or any woman who dresses and poses as a man in any public place” with prison time and a fine.
During Brunei’s Universal Periodic Review at the UN Human Rights Council on May 10, 2019, the Foreign Minister of Brunei asserted that the prohibition on consensual same-sex conduct “is to ensure such acts are refrained and are limited to the private space.”
The structural environment in Brunei has become more dangerous for LBTI people – Brunei had passed a law that prescribed the death penalty for same-sex conduct in 2019. When the imposition of this new law caused international outrage, it was announced that the country’s de facto moratorium on the death penalty, which has been in effect for two decades, would remain in place. The moratorium, while welcome, remains subject to political whim and fails to address the other forms of torture and cruel, inhuman and degrading treatment written into the law. The harshness of the provisions ensures that with or without enforcement, the law will serve to terrorize and silence LGBT individuals in Brunei.
The last State party report was submitted in 2013 and contained no LBTI specific information.
The CEDAW Committee’s Concluding Observations to Brunei in 2014 contains one SOGIESC-focused recommendation. The Committee noted that Brunei does not currently have legislation to protect women from discrimination or specific legislation criminalising gender violence.
These realities and the complete lack of legal protections compound the implications that Syariah Penal Code Order, 2013 has for the physical integrity and autonomy of all women, including LBTI people.
Thus, the Committee urged Brunei to review provisions of the Code as women “are disproportionately affected by punishment for ‘crimes’ involving sex” and it “will face greater difficulty in collecting the evidence necessary to prove rape, meaning that the fear of being accused of particular adultery and extramarital relations is likely to prevent women from reporting rape.”
The List of Issues did not contain any LBTI-inclusive questions. The Committee noted that Brunei does not have a clear definition for discrimination against women, and there is no plan to incorporate this in the Constitution.