LGBT rights claiming and political participation in Southeast Asia

Abstract

In this paper, I read the creation of the ASEAN human rights regime, the development of SOGIESC rights claiming (where this denotes sexual orientation, gender identity & expression, and sex characteristics), and the social conflict associated with homophobia and the backlash to LGBT rights through modes of participation analysis. This framework is used to interpret the different uses of rights and values-denominated language and institutions in the context of advocacy for sexuality and gender diversity rights protection. I first explicate the modes of participation approach and reprise how I have previously used this to analyse SOGIESC rights claiming. I then show its utility for understanding the emergence of the elite level human rights regime in ASEAN, before indicating how it can also be used to analyse non-elite resistance to SOGIESC rights. Both elite and non-elite resistance can be linked to the older anti-rights discourse of “Asian Values”, which I illustrate with refence to three states: Indonesia, Malaysia, and Singapore. Taken together, these examples illustrate the capacity of modes of participation analysis to provide a persuasive account of the often contrasting and competing politics of human rights in the region.

Keywords:

• LGBT
• SOGIESC
• human rights
• political participation
• ASEAN
• Southeast Asia

LGBT¹ rights are contested rights. This is true even in those jurisdictions where LGBT rights most approximate a settled practice of rights claiming and protection. It is certainly the case in Southeast Asia, where nothing is ‘settled’ about the nature and status of these rights claims—indeed, where human rights in general are only now gaining traction as a legitimate institutional practice. This emergent traction is the entry point for my discussion, taking its cue from the recent development of a human rights regime in Southeast Asia. The new regime, which dates from the creation of the ASEAN Intergovernmental Commission of Human Rights (AICHR) in 2009, finds its key expression in the 2012 ASEAN Declaration of Human Rights (ADHR) and has been supported by the establishment of a range of other instruments and agreements—most noticeably ASEAN’s Declaration on the Elimination of Violence against Women (2012).

LGBT rights—or, in the more expansive and often regionally preferred nomenclature, SOGIESC rights (where this denotes sexual orientation, gender identity & expression, and sex characteristics)—were deliberately excluded from ASEAN’s human rights regime. Any idea that this exclusion would forestall a politics of SOGIESC rights claiming, would stop people from demanding rights or prevent them participating in a global sexual and gender politics articulated through rights, has been shown by subsequent developments in civil society activism to be mistaken—while also illustrating some central truths about the expansive nature of rights politics into the bargain. It is not just conservative political elites who resist rights politics, however. Those engaging in SOGIESC rights claiming also face a backlash from grassroots conservative movements, religious mobilisation, and related civil society organisations.

In this paper, I read the creation of the ASEAN human rights regime, the development of SOGIESC rights claiming, and the social conflict associated with homophobia and the backlash to LGBT rights, through modes of participation (MOPs) analysis (Rodan, 2018). This framework is used to interpret the different uses of rights and values-denominated language and institutions in the context of advocacy for sexuality and gender diversity rights protection. In what follows, I first explicate the modes of participation approach and reprise how I have previously used this to analyse SOGIESC rights claiming. I then show its utility for understanding the emergence of the elite level human rights regime in ASEAN, before indicating how it can also be used to analyse non-elite resistance to SOGIESC rights. Both elite and non-elite resistance is often linked to the older anti-rights discourse of ‘Asian Values’, utilised in particular in the 1990s discourse of Southeast Asian political elites from Indonesia, Malaysia, and Singapore (documented and critiqued in Langlois, 2001). While the contemporary context is significantly different, a review of the uptake of SOGIESC rights claiming in these three states illustrates the utility of the analytical frame adopted here both for understanding rights politics in general, specific domestic cases in particular, and their interaction with regional and international rights regimes more broadly. Taken together, these examples illustrate the capacity of modes of participation analysis to provide a persuasive account of the often contrasting and competing politics of human rights in the ASEAN region.

Modes of political participation

Much that has been said about the ASEAN human rights regime—an elite sponsored, intergovernmental regime—builds on the long-standing antipathy of political elites in the region to democracy and human rights. In the period prior to the promulgation of the new human rights regime this was articulated through the rhetoric of Asian Values, notably in the discourse of political elites from Indonesia, Malaysia and Singapore (Langlois, 2001). In this article, I focus not on the hypocrisies or ironies on display as a collection of largely authoritarian political elites now elaborates a human rights regime (but see: Hanara, 2019; Cf. Khanif & Khoo Ying, 2022), but on what the occasion of the regime’s appearance and endurance might mean for rights claiming and political participation undertaken by citizens and residents in the region. And this line of inquiry also crosses with another rhetorical marker that ASEAN’s political elites have developed over the last decade: that of being people-centred and people-oriented (Allison & Taylor, 2017). Both these turns—to human rights, and to the ‘people rhetoric’—have provided opportunities for bottom-up political engagement by a wide range of actors across the region, even while each turn also articulates limits, bounds or preferential interpretations by which governmental elites hope to constrain potentially inconvenient political developments (Langlois, 2014; Langlois, Wilkinson, Gerber, & Offord, 2017).

In particular, these turns have been enormously significant for those fighting for the rights and well-being of sexuality and gender diverse people in the region. Individuals and communities, with allies, supporters and defenders, have developed a set of political practices and strategies which I have elsewhere analysed as a ‘SOGIESC rights claiming mode of political participation’ (Langlois, 2022). The main lines of that analysis provide the foundation for the extended claims I make here, that analysis based on modes of political participation also has significant utility for understanding resistance to these rights claims. SOGIESC rights claiming as a mode of political participation has been increasingly high profile, and has demonstrated a significant capacity to support, even drive, social and political change in various jurisdictions across the region (Weiss, 2021). Those opposed have taken notice: contestation and political backlash have become increasingly well-organised, and should also be understood as modes of political participation.

Indeed, the use by political elites of Asian values or ASEAN’s rights frameworks and people rhetoric to oppose or constrain SOGIESC rights claiming present as clear examples of the phenomena that modes of participation analysis was originally developed to investigate: the proliferation of ostensibly democratic mechanisms which are then used to constrain political contestation, rather than to facilitate it (Rodan, 2018).

Political decision making is the focus of modes of participation (MOPs) analysis. Specifically, MOPs interrogates who gets to participate, how that participation takes place, and what consequences follow from participation. Central to the methodology is the question of contestation: when considering political institutions, how much contestation takes place, where does it come from, who controls, permits or regulates it—or, as is commonly the case, who is involved in blocking and preventing it, and why. When considering a mode of participation itself, we can understand it as a fusion or admixture of—on the one hand—the key institutional structures that are involved in the context of political decision making being considered; and on the other hand, the ideological reference points or traditions which facilitate or inhibit participation in political decision making and the nature and justification of that participation. When these institutional structures and ideological traditions come together as a mode of participation, they shape the fundamental nature of the political space, enabling some actors, restraining others, shaping outcomes and political narratives. (Gerard, 2014, p. 5; Jayasuriya & Rodan, 2007; Rodan, 2018, p. 33, 2022; Rodan & Baker, 2020). And this is precisely what we see with the advent of rights claiming in general and SOGIESC rights claiming in particular: the political questions of who gets rights and which rights are included being key illustrations of how this process works.

The development of a human rights regime, the turn to democracy and the deployment of the ‘people rhetoric’ all look like they should enhance levels of democratic and contestatory political participation. Rights, if realised, are the very tools which enable this, on any conventional understanding of the term. The complexities become multilevel, however, as soon as we factor modes of participation into the realisation of rights and the structuring of their emergence into the political context. Not only might institutions and political discourse be susceptible to manipulation, capture and direction, but—crucially—a common-sense liberal pluralism often kicks in and misdirects attention and analyses from what is happening on the ground. The adoption of a human rights regime is then easily read as part and parcel of a liberal modernization narrative, notwithstanding the specific shortcomings or failures of the rights regime in its institutionalisation or practice. Shortcomings are attributed to institutional design and solutions consequently prioritise reforms and technical fixes (Rodan, 2018).

MOPS analysis pushes for something more, however. It centres an analysis cognisant of the shaping power that deep social conflicts mediated by state power have over the development and evolution of established and emergent political institutions—including AICHR (Cf. Tan, 2011) and related human rights instruments (Duxbury & Tan, 2019). On this reading, the establishment of institutions like the new human rights regime are attempts by elites to manage the pressures they face in their broader efforts to retain the established social and political order. As Rodan argues, ‘Political institutions and ideologies of participation and representation are at the heart of these strategies, the aim being to expand political space but in ways that fragment social forces and contain the scope and nature of conflict permitted.’ (Rodan, 2018, p. 26)

I read both the creation of the ASEAN human rights regime and the development of SOGIESC rights claiming as modes of participation, along with efforts to resist or reject human rights claiming in general and SOCIESC rights claiming in particular as representing antithetical values. Thus, I propose to use the MOPs framework more generally as a means to interpret the different (and often antithetical) uses of rights and values denominated language, institutions and political practices. In this way, the exploration of SOGIESC rights claiming elaborates the application of the methodology differently to its earlier use by Rodan—in particular by examining broad movement-based political participation across a region, rather than the specific institutional innovations in national domestic contexts, which were the focus in Rodan’s Participation Without Democracy (Rodan, 2018; Rodan, 2022).

With this in mind, the startling development in ASEAN over the last decade was the formal authorisation of human rights as a mode of political participation across the region (Langlois, 2021; 2022). When I conducted my original research on the Asian Values debate in the late 1990s—in which I focused in particular on Indonesia, Malaysia and Singapore, but also referenced the broader debate across East and Southeast Asia—human rights were broadly rejected as a form of participation for the region by most who had any connection with prevailing political structures (Langlois, 2001). In some civil society groupings rights discourse was used cautiously to advance causes and arguments. But in general terms, even among those who saw the value of the discourse, its utility as a form for constructive political engagement in the region was not highly rated. It was not something that could be described as an available or potentially effective mode of political participation. Neither prevailing ideological formations nor institutional structures gave human rights the necessary legitimacy to function; they were consequently not a significant feature in the prevailing politics. Now, by contrast, there is both an ideological endorsement of human rights, as part of ASEAN’s pursuit of democratic forms, in turn embedded in the ASEAN’s people-centred/people-oriented rhetoric and community building project, and a regional network of intergovernmental institutions, headed by AICHR, to promote human rights (Davies, 2014; Gomez & Ramcharan, 2020; Nandyatama, 2020; Tan, Cohen, & Nabahan, 2021). MOPS analysis provides significant tools for understanding the different ways in which these developments both open up, but also potentially close down, democratic political space in the region. In the next two sections, I consider both of these aspects in turn.

SOGIESC rights claiming as a mode of political participation: opening up political space

As noted above, ASEAN’s endorsement of human rights does not extend to LGBT rights; indeed, those tasked with drafting the ASEAN declaration went out of their way to forestall any such possibility by deliberately excluding sexuality as a ground for discrimination protection (Langlois, 2014, p. 312; Weiss, 2021, p. 197). But the ASEAN rights regime is here faced with a problem: it has come into being at precisely the same time that the international human rights regime has finally (after much hesitation) taken its own LGBT or SOGIESC turn. The UN’s Human Rights Council established an Independent Expert (2016) for investigating the human rights of sexuality and gender diverse people globally; this mandate has now been successfully renewed twice by the UN HRC (2019, 2022). These two developments have contributed (with other factors) to the evolution of a SOGIESC rights claiming mode of political participation across the Southeast Asia region—one whose protagonists actively engage with ASEAN’s human rights project at ideological, political and institutional levels, and which has impact in part because of connection to and overlap with broader human rights and LGBT/SOGIESC modes of participation at the global scale (on the latter see for example Janoff, 2022, Ayoub, 2016).

The SOGIESC rights claiming mode of political participation finds its manifestation across Southeast Asia in a wide range of contexts, scaled from the intimate and local to the national, regional and international. It can be profiled through a variety of different lenses: legal, political, activist, social media, health, academe, civil society and intergovernmental. Since the advent of the ASEAN human rights regime, it has been increasingly common for organisations in different states in the region, operating at different scales and in these different sectors, to connect their advocacy work to the human rights narrative, both as a way of getting traction, but also in an attempt to push the ASEAN discussion of rights in the direction of recognising SOGIESC rights. The proliferation of such organisations over the last decade is, alone, a strong indication of the emergence of this mode of political participation (Langlois, 2022). (See also Chua, 2014; 2018; Khanis, 2013; Kjaran & Naeimi, 2022; Ng, 2018; Offord, 2003; Radics, 2024; Wijaya, 2020; Tang & Wijaya, 2022; and Wieringa, 2024 among others for broader discussions of organising in the region).

The establishment of the ASEAN SOGIE Caucus (ASC), a non-government organisation with a key focus on regional coordination, education and advocacy, is exemplary of this dynamic. ASC was established in 2011, during the period that saw the emergence of the ASEAN human rights regime—in between the establishment of AICHR and the promulgation of the ASEAN Human Rights Declaration. It was a period of considerable agitation within civil society organisations, themselves both energised by the turn to human rights, but also angry at their exclusion from ASEAN’s consultation and drafting processes. ASC emerged out of the ASEAN Civil Society Conference of the ASEAN People’s Forum; in 2010 the Conference Statement had called upon ASEAN member states to promote equal rights for LGBTIQ people, to de-criminalise and de-pathologize homosexuality. The establishment of ASC provided an ASEAN wide platform for regional advocates focused on SOGIESC and related solidaristic matters—one of its distinctive features is a broad, organic, emancipatory rights politics. The three components of the organisation’s name translate directly into its work and activity. With ‘ASEAN’ in its title, it consciously and determinedly addresses itself to the larger intergovernmental political and identity project of the region. With its secretariat in the region (Quezon City, Philippines) and its office holders and staff from the region, it can take advantage of being a queer figuration of what ASEAN might look like if it took its own rhetoric about human rights and people-centeredness seriously—and this identity is then built into the politics and advocacy work of the organisation. Their demands and voice have been as consistent as they are emphatic since their original formation:

Across the ASEAN region, LGBTIQ persons are either treated as second class citizens, criminals, are seen as deviants, and in some cases are not even recognized as human beings. We are made to lead dual lives and be ashamed of ourselves for who we are. We are subjected to name calling, condemnation, taunts, reparative treatments and other inhumane abuses. Discrimination and violence come not only from our families, friends, communities, and employers but also from state institution such as state actors, especially police and religious officers. Even in the face of discrimination and violence, the governments refuse to protect our basic human rights. (ASC, 2012)

A final observation specifically about ASC returns us to the larger picture and my general argument: ASC describes itself as an umbrella organisation. A key part of its work is to network and provide support for the plethora of organisations operating on more local scales, fighting for SOGIESC rights in local and national settings, and yet eager to participate in the larger regional politics of advocacy work (ASC 2018). Together with other like-minded organisations (to name a few, APCOM, Outright International, ILGA Asia, plus allied human rights advocacy organisations and so forth), this ecosystem of advocacy is a clear instantiation of rights claiming as a mode of political participation, one oriented to opening up democratic space from the grassroots (See Radics, 2021, 2024).

ASEAN’s human rights regime as a mode of political participation: closing space down

Much of what has been written about ASEAN’s new human rights regime has focused on its institutional limitations, its structural and substantive failures when contrasted with world best practice, and the apparent inability of the regime and its institutions to make any headway with the most egregious human rights issues in the region. However, if we approach the regime through a MOPs analysis the question of whether it works or not as a human rights regime loses central focus, as a larger set of political questions loom. As Rodan comments, ‘what matters about institutions is not whether they ‘work’ in some technical sense, but who can be represented through them, how, on what, and why’ (Rodan, 2018, p. 42). It is from this perspective that we can arrive at a more sophisticated understanding of ASEAN’s new values as championed by its human rights turn and ‘people rhetoric’, and how they interact with SOGIESC rights claiming, and any putative return of Asian values (Radics, 2024; Weiss, 2023). More specifically, this approach helps us to understand how, notwithstanding the normative orientations of human rights, a particular rights regime can fail to address or even appear cognisant of the rights claims of particular constituencies. Rodan argues that in modes of participation analysis, institutions do matter, but they matter ‘because of how they permit, contain, or block particular forms of conflict via different modes of political participation.’ (Rodan, 2018, p. 28). This applies as much to human rights regimes as to any other set of institutions—and to the resistance engaged by that regime and its socio-political fellow travellers to the kind of advocacy engaged by SOGIESC rights claimers.

The specific inclusion or exclusion of SOGIESC rights advocates in processes of political participation associated with the ASEAN human rights regime is dependent on the ideologies of representation which function within and around that regime. It is these ideologies which ‘provide rationales for privileging, marginalising, or excluding particular interests or conflicts from political processes’ (Rodan, 2018, p. 28). Rodan sets out four broad ideologies of representation: democratic, populist, consultative and particularist. While a conceptual understanding of these ideologies of representation is important, the crux of the matter is how these ideologies are played out in specific concrete sites of participation: our site being the ASEAN human rights regime. More properly, we should conceptualise the regime as a range of different sites in which participation takes place. For example, each national representative on AICHR is a site, each of which has its own complex and variegated dynamics, both with its own government and its own civil society. Each of these are sites of contestation, contestation that various actors within the regime seek to manage (facilitate, guide, manipulate, control) utilizing the various ideologies of representation noted above. These are used to shape and constrain the relationship between the institutions of the human rights regime, the social foundations and the contexts in which they operate, and the nature and extent of social conflict that is engaged.

Of Rodan’s modes of participation, societal incorporation is of particular importance for analysing the ASEAN human rights regime. The focus in social incorporation is on state and trans-state institutions—existing but also (and obviously in the case of the human rights regime) new institutions—and the manner in which ‘state strategic control can be exerted’ (Rodan, 2018, p. 51) over social conflicts and struggles for political power. Social incorporation is about providing a means for participation in debate on public policy—but on terms which drive the agenda of the state/trans-state authorities, rather than being directly responsive to or driven by the interests of participants. (The contrast here is with the civil society and individual expression MOPs which are self-motivating and self-propelled). State actors arbitrate on who should participate, who should represent which people, ‘guided by consultative ideologies of representation emphasising the utility of participants for solving state-defined problems of economic, social or political governance’ (Rodan, 2018, p. 37). The engagement of civil society groups with the development of the ASEAN human rights regime—to the extent that it occurred—hewed exactly to this model: they were engaged ‘to contribute to the refinement of the delivery of public goods and services rather than to engage in an open-ended debate over policy and reform options’ (Rodan, 2018, p. 38). ‘Initiatives in societal incorporation’, Rodan comments, ‘span authoritarian and postauthoritarian regimes and involve domestic states in their own rights and trans-state partnerships with multilateral agencies in promoting the participation of NGOs and other social groups’—a picture-perfect description of the institutional setup of the ASEAN human rights regime.

I interpret the introduction of the human rights regime by ASEAN as a region level analogue for the various national level mechanisms of social incorporation which Rodan analyses in his work, where governments instituted modes which enabled increased levels of participation in order to forestall the potential for popular protest, uprising or political mobilisation, which would in turn take both the initiative and control away from governing forces. The turn to human rights distanced ASEAN from the increasingly indefensible posture it maintained while under the leadership of those who trumpeted Asian values—with their strong anti-democratic, anti-human rights and anti-Western orientation. There is no doubt that the turn to human rights opened up and expanded political space within ASEAN. At the same time, ASEAN was very careful to curate and control the substantive political agenda. The design of the human rights regime, in particular the AICHR (Tan, 2011), and the drafting of the AHRD, with its novel and specifically curated rights and interpretive frameworks (American Bar Association, 2012; ASEAN CSOs, 2012; Clarke, 2012; Renshaw, 2013), along with what is a now decade-long track record of institutionalisation (Duxbury & Tan, 2019) but little substantive action (Hanara, 2019)—support this interpretation (as do the insider accounts presented in Tan et al., 2021).

Asian values redux

The so-called Asian Values Debates of the 1990s can be read as an earlier instance of asserting interpretive and institutional authority over human rights; a post-colonial response to neo-colonial pressures. While the terms of that ‘debate’ have clearly moved on, the discourse of Asian Values has lingered—and is perhaps seeing something of a return (Hou, 2020; Lee, 2020; Sheng, 2018; Ulum & Hamida, 2018). Under the Asian Values of the 1990s, human rights and what we now call SOGIESC rights were to be managed by refusal and repression—anti-democratic means to support anti-democratic claims, in terms subject to extensive and persuasive critique (Langlois, 2001. See also: Bauer & Bell 1999; Jacobsen & Bruun, 2003; Kingsbury & Avonius, 2008; Ness & Aziz, 1999, among others). By contrast, the societal incorporation mode of participation aims to manage human rights and democratic claims through inclusion and co-optation.

If what I am suggesting is a change in strategy on the part of political elites, particularly those working with and through ASEAN, to move to the management of human rights politics through societal incorporation strategies, what are we to make of the apparent return of Asian values? In particular, what are we to make of their appearing as a culture war politics, in which a set of ‘traditional’ or ‘family’ values are conceptualised in opposition to a set of new or external—and threating—values? (Ayoub & Stoeckl, 2024; Sim, 2021, see also Weiss & Bosia, 2013) My suggestion here is that—to the extent that it can be said to be the case (see Radics, 2024)—the transition of Asian values rhetoric from the political elite to a populist culture war is the negative mirror image of the political and social mobilisation which gave rise to the SOGIESC rights claiming as a mode of political participation. The same kinds of changes which spurred on the development of, and provided the social and political space for, SOGIESC rights claiming, also provided the political and social preconditions for a broad-based, conservative, socially reactionary civil society movement which has opposed aims and goals. Key elements of the rhetoric of Asian values carry through (familial values, conservative social mores and the like) sans the agency of key governmental forces, which are now at work on projects within the ASEAN trans-governmental frame (including the societal incorporation via formal institutionalisation of human rights); their leadership and agitprop roles are taken instead by more local social and religious elites, who’s frame of reference is more consistently that of domestic politics rather than the regional intergovernmental edifice that ASEAN represents. Their politics and interests, too, can in some cases be interpreted as populist and conservative responses to the changing socio-political environment that is being wrought by ASEAN’s neoliberal economic framework (Peletz, 2020; Springer, 2017). Here, as I argued over two decades ago, the point of trying to identify these values should not be some mistaken essentialising project, but rather one that looks at the contingent espousal of values and norms in particular times and places (Langlois, 2001); modes of participation analysis assists here by directing us to underlying dynamics of social conflict and the use of ideologies of representation (cf. Rodan, 2022).

We can see this for example in the Indonesian context. The end of the New Order and democratization brought space for political activity and organising within Indonesia, opportunities which were taken up by a wide range of civil society and human rights organisations, including among them LGBT advocates (Khanis, 2013; Wieringa, 2024; Oetomo & Purdey, 2019). Links with regional and international LGBT NGOs were forged, and Indonesia became a significant site of political mobilisation for what I analyse as the SOGIESC rights claiming mode of political participation. But this same openness and space brought opportunities for organisation and mobilisation not only of those who were LGBT advocates and allies, but also for those who were opposed (Boellstorff, 2016, 2020; Thajib, 2018, 2022). Conservative and fundamentalist forces multiplied, and with them the spread and politicisation of anti-LGBT sentiment. Incidents of violence and intimidation specifically directed towards queer individuals and communities increased in number. This new culture war iteration of Asian values arrived in full force in 2016 with the so-called ‘LGBT moral panic’, or, as articulated by its political leaders, the ‘LGBT Crisis’. This moral panic (a social movement against an exaggerated or fabricated threat perceived to undermine social safety and security (Cf. Karger, 2022)) was notable for being fully engaged by a range of senior state actors, and thus superficially looking like the older version of the Asian values debate. More significantly, however, it brought out into the open a wide range of societal forces actively aligned in the anti-LGBT cause, and which were shown to be significantly advanced in ‘reorganising Indonesian public understandings of bodies and sexualities…’, a reorganising in which LGBTs and queers should have no place (Wijaya, 2020, pp. 151–152).

The stakes in this ‘reorganisation’ have been heightened by the influence such conservative social forces have demonstrated over the update to the republic’s Criminal Code. This ‘update’ has been discussed since independence and has been a work in progress for over two decades; a draft was finally completed in September 2019—only to be met with huge popular protest. While government ministers insist the Code is ‘in line with Indonesian values’ (Lamb & Teresia, 2022) and spruik it as a move beyond colonial era laws, in substance it seems very much like a case of Asian values redux: the worst of a conservatively moralistic approach to sexuality (with vocal support from a range of civil society and religious movements) and a reprise of authoritarian governance. The new code criminalises adultery, cohabitation and extra-marital sex, clauses which many fear will also be used against the LGBT community. Under the code, these are ‘complaint offences’—they can only be used to criminalise if specific people make a complaint, such as a spouse or a child. Despite the seriousness of these new offences and their potential use to crackdown on queer populations, these clauses of the code only represent one dimension of the problem. Indeed, Indonesians have expressed frustration with the Western media’s focus on the so called ‘bonk ban’ (sexual conduct) issues, because the code includes a wide range of other highly significant new offences which are antidemocratic, reduce people’s rights, entrench authoritarian governance practices and diminish room for protest and dissent (Ambyo, 2023). Headline concerns include threats to freedom of expression and association; the expansion of blasphemy laws, effective censorship in relation to information about contraception and abortion, imprisonment for teaching Marxism, and the criminalisation of insults against the president and vice-president (Human Rights Watch, 2019).

When the new code is viewed more broadly in its political context, the temptation to invoke Asian values, or at the very least to compare the contemporary political malaise to that of the previous period when the term was in vogue, is apparent. On the one hand, while government spokespersons invoke the language of values to justify the moralism of the code, it is clear that the code supports the entrenchment of the interests of the powerful, reduces avenues for political contest, and contributes to the concern de jure of political analysts more generally in Indonesia and the region: democratic backsliding (Eva Kusuma Sundari, 2022). These concerns are viscerally felt in the population. As Ambyo explains,

The code’s many vague clauses have led to accusations that the Indonesian government is seeking to use the laws as ‘rubber provisions’ to jail anyone. The two hashtags on social media that Indonesians created to protest the criminal code were #semuabisakena and #tibatibadipenjara, which translate to ‘all can be targeted’ and ‘suddenly in prison,’ respectively. This is not an imagined problem. A previous ‘rubber law,’ the Electronic Informations and Transactions Law of 2008, for example, had been used to jail and fine people, many of them for using digital tools like social media or messaging apps to speak out against those in power. (Ambyo, 2023)

While Indonesia has recently elected a new President, Prabowo Subianto, the change at the top does not appear to signal any significant or immediate impact on SOGIESC individuals and communities. Perhaps against expectations, the electoral period did not see a major renewal of moral panic about ‘the LGBTs.’ But fearmongering and discriminatory behaviour were present in electoral campaigns, and continue as a routine feature of life for marginalised communities. The demand on the part of activists for ‘equal justice, the fulfilment of our socio-economic rights, and the protection of our rights as citizens’ remains present and unmet (Galuh, Syahdinar, & Mulyanto, 2024). The disquiet associated with the new Criminal Code persist as it continues its legislative and political journey. And, in concerning signs of what the future might bring, a new bill still in its early stages, which addresses broadcasting matters, threatens to curtail investigative journalism, press freedoms and LGBT content (Reuters, 2024).

What is in prospect then, in Indonesia, is a conjunction of the mobilisation of conservative social and political forces, combined with an evolving legal framework which facilitates the worst elements of both the new and the old iterations of Asian values: the capacity for reporting, blackmail, intimidation, surveillance and the like against LGBTs and anyone else who is not comfortable with Indonesia’s prevailing conservative heterosexism (Cf. Blackwood & Johnson, 2012; Boellstorff, 2007), and a broader capacity for the targeting of all who do not support the political regime, who are not prepared to play nicely with the vested interests driving contemporary Indonesian capitalism, or who fall on the wrong side of deeply entrenched social conflicts.

In Malaysia, recent developments saw two of the key figures in the original Asian values debate return to positions of political pre-eminence. Prime Minister Mahathir Mohamad was known during the 1990s as the ‘opposition leader of the South’, and was perhaps the most colourful and provocative spruiker for Asian values and its local variant, Malaysian values. His one-time deputy and finance minister, Anwar Ibrahim, was also a key figure, popularising the idea of—in the title of his book—The Asian Renaissance (Anwar, 1996). The latter’s popularity was taken as a threat by the former, and Anwar found himself thrown out of government and into jail charged with sodomy; while this may have removed Mahathir’s rival, it also indelibly centred questions of sexuality into Malaysia’s political psyche, while also—so to speak—queering the stage on which those questions might be played out (Cf. Peletz, 2009, p. 224).

The high-stakes utilisation of sexuality and gender politics by the political elite not only shaped the narrative of elite politics, but made life extremely complicated for ordinary people of sexuality and gender diversity in Malaysia, precipitating moral panics among the religious and conservative, and further marginalising activists and community organisations. Under these conditions, local organisations such as the PT Foundation (earlier known as Pink Triangle) depended heavily on health-related issues, and especially HIV/AIDS, in order to maintain their community presence (Lee, 2013). As Lee observes, however, ‘The work of the PT Foundation and the Malaysian AIDS Council was important in creating spaces for LGBT communities to gather and organize (see Weiss, 2006), although some activists had reservations about the HIV/AIDS frame—in particular, its inability to capture the spectrum of ways in which non-heterosexual identities can be experienced or made manifest’ (Lee, 2013, p. 174).

In the late 2000s a new challenge was thrown at Malaysia’s political psyche: the claim of Seksualiti Merdeka (independence)—both a new organisation running a sexuality rights festival for the sexuality diverse, and a political claim for sexual independence. In the words of key protagonist Pang Kee Teik (2018), ‘the independence project is incomplete without the freedom of sexual subjects.’ The inaugural festival was held on Malaysia’s Independence Day anniversary in 2008:

the name… sought to draw parallels between Malaysia’s journey to gain autonomy from British rule—and its disempowering practices and discourses—and the journey LGBT individuals and communities must undertake in order to be free from repression and to gain greater empowerment, acceptance and respect for their fundamental rights as both human beings and Malaysians. [It] was a reference to the way the Malaysian nation should be imagined—as enabling the sovereignty of individuals over their bodies, just as Malaysia gained its own sovereignty. In that first year, the festival’s aims were to affirm sexuality rights as human rights, and to empower individuals and communities (Lee, 2013, p. 175).

Popular with activists and local organisations, and linked to the global human rights movement, Seksualiti Merdeka’s festivals grew from 500 to 1500 attendees between 2008 and 2010, before being shut down and banned by the police in 2011—an act which due to its high profile nature brought new attention to the claims and struggles of the sexuality diverse community, and the language of LGBT rights, to the general public (Palatino, 2011). The ban on the sexuality rights festival in Malaysia coincided with the developments in the larger regional narrative of the ASEAN Human Rights regime, and as noted above, the exclusion of sexuality and gender diversity rights from that regime. Here we see the ongoing fight for political ownership of rights discourse at local, national and regional levels, a contest of political participation over rights claiming which continued through the subsequent decade as new and old coalitions struggled in the face of government repression.

Jumping forward to the present and to the stage of elite politics, extraordinary political twists and turns saw both key actors in the sodomy saga recently installed (or re-installed) as Prime Minister of Malaysia: Mahathir after 2018’s general election, and Anwar after 2022’s early election, which was called to try and resolve political instability (Kessler, 2022; Weiss & Hazis, 2020). In Mahathir’s case, the twist was his return to power at the helm of a new coalition offering an alternative vision to that of his old Barisan Nasional coalition. The new—Pakatan Harapan (The Alliance of Hope)—had an anti-corruption platform with a human rights dimension, on which it then largely failed to deliver. In particular, the hope some in the LGBT community had that human rights might be extended to include them was quickly dashed, as a series of discriminatory and violent episodes unfolded in just the first 100 days of Pakatan Harapan’s Malaysia Baharu (New Malaysia) (Pelangi, 2018). The Pakatan coalition proved unstable, collapsing in on itself, leading to a series of unstable governments, each more like the pre-2018 status quo than the other, until the early general election of November 2022. The election, however, only confirmed the new instability in Malaysian politics, with no clear winner. Eventually, Anwar was able to persuade the Agong of his ability to form a Unity Government, a claim which was later vindicated when he won a confidence motion in the Parliament. However, the new Unity aspiration, like the Hope aspiration previously, excludes the queer community, with Anwar making it clear that anyone who thought his ascension to the premiership would see recognition for LGBTs was sorely mistaken: ‘This is a delusion. Of course, it will never happen under my administration’ (Hassan, 2023).

Instead, what will happen is a continuation of what Meredith L. Weiss has analysed as pink-blocking (see Weiss, 2023). Whereas pink-washing is understood as the use of one’s putatively progressive positioning regarding LGBT rights and politics as cover for other failings (such as various forms of colonial and exclusionary politics (Cf: Puar, 2007; Franke, 2012; Treat, 2015)), pink-blocking works the other way around: it uses one’s conservative positioning as a way to ‘burnish credentials’ with a potentially restive conservative electorate. In a manner which is similar to the dynamic at play in Indonesia, pink-blocking in Malaysia sees government taking advantage of an anti-LGBT mode of political participation that has become significant in the general body-politic, and using it for political (in this case electoral) advantage. The state strategy here, exampled in detail by Weiss for the Pakatan government and seemingly set for continuation under the Unity Government of Anwar, mobilises ideas of Malaysian or Asian values in association with grass roots agitation for Malay-Muslim rights, using them to denote moral purity and a commitment to the values of the conservative political base. Here the focus of the game is not the 1990s style West-baiting of Mahathir, with his anti-human rights and anti-democracy rhetoric; rather, the appeal is tied up with social cleavages, economic interests and political coalitions which are felt to be materially consequential in the lived experience of ‘ordinary people’—or at least those who can pass as such within the dominant Malay-Muslim majority. This dynamic exemplifies what modes of participation analysis posits: people align according to deep social conflicts; those driving mobilisation against LGBTs have become adept at characterising sympathy for queers as a threat to these deeper forms of social identification. This applies equally to what Weiss analyses as the utilisation of anti-queer sentiment through pink-blocking specifically by the state, as much as it applies to those mobilising in social and religious circles more broadly to activate or aggravate anti-LGBT sentiment.

In Singapore, the culture politics dynamic is playing out in a different register. In the previous two cases, governments have shown themselves both tacitly and explicitly aligned with different elements of the societal backlash against the increased presence and visibility of LGBT communities. In Singapore, the Government has made the quite momentous decision to decriminalise homosexuality (Weiss, 2022), a step taken in recognition of changing social norms and values, and also with an eye to its own continued electoral success. The decriminalisation of homosexuality though, should not be read as an endorsement of queer or progressive norms around sexuality and gender diversity. Rather, it is in keeping with the character of a regime which, according to Rodan, exercises the ‘most concerted attempts … to refine political co-option through administrative and societal incorporation’ (Rodan 2013, p. 30; for a parallel analysis see Treat, 2015).

The National Day 2022 speech in which then Prime Minister Lee Hsien Loong announced decriminalisation clearly illustrates the point. Lee was emphatic that there would be nothing as adventurous as gay marriage on the Government’s agenda, and that in fact, a heteronormative definition of marriage would be inscribed in the Constitution to make clear that—as he also repeatedly emphasised—nothing else in the way of social norms and values would change: everything would remain the same (Thanapal, 2022)—a clear agenda of administrative and societal incorporation. And for those paying close attention, while there may be decriminalisation, there would be no improved measures against discrimination and no other additional social protections (OPENLY, 2022)—thus ensuring that incorporation manifestly happened on the government’s terms.

Looking at these developments through modes of participation analysis, we can again see the various elements of societal incorporation in play: in particular, the critical move to keep mastery of the broader political situation by providing a legitimate space—one that can be more easily controlled, or at least neutralised, by virtue of it being formally authorised. Without for a moment wishing to downplay the enormous significance of the decriminalisation of homosexuality to—in particular—gay men in Singapore, it is also clear that this can be seen as a win-win situation for the government. The LGBT movement has long used legal mobilisation as a key element of its activism in Singapore (Chua, 2014; Radics, 2021); both internationally with the increased recognition of gay rights as human rights, and domestically, with continued and recently building impetus behind demands for law reform, the government’s efforts to claim that conservative Singapore society was not ready for the decriminalisation of homosexuality—while also trying to play to the other-side-of-the-street by claiming a non-enforcement of the law position—were wearing thin and losing credibility (Radics, 2019). Pressure for change was being increasingly mainstreamed. As Rodan commented about the government’s earlier strategy of neither enforcing nor repealing Section 377A, the colonial era law that criminalised male homosexuality, the ‘…concession was a reform issue intersecting at a certain political economy juncture with the interests of the dominant bloc’ (Rodan, 2022, p. 26). Equally clear, however, is the government’s needs to retain the loyalty of its traditional constituencies, and in particular to placate the conservative (and often religious) right. This is the purpose of the ‘everything else remain the same’ motif present in the Prime Minister’s National Day Speech. In this regard, the Singapore case evidences similar culture war dynamics to those experienced among its neighbours, with conservative religious groups increasingly ramping up anti-LGBT sentiment in their public communications, activities and political operations.

The most celebrated case of this in Singapore was the coup staged by conservative Christian women against the leadership of Singapore’s then preeminent liberal feminist organisation, the Association of Women for Action and Research (AWARE) in 2009. The organisation was accused of pursuing a ‘homosexualisation’ agenda, especially in the context of government sponsored school sex education activities. While here is not the place for a blow-by-blow account of the saga (that can be found in Lyons, 2013), it was a high-profile example of a religious conservative middle class constituency willing to be riled up by a sexual diversity moral panic (Cf. Weiss, 2013). Unexpectedly, in the case of AWARE, the old guard managed to reassert their ownership of the organisation, an outcome attributed more to concern about the politicisation of religion in the public sphere (very un-Singaporean!) than because of any progressive accommodations with sexual diversity; indeed, after the furore, the government dropped the organisation from its roster of school sex education programs, denying further influence for its ‘neutral’ curriculum in schools (Lyons, 2013).

In the decade since the AWARE incident, the Government’s calculus altered significantly, culminating in its decision to repeal Section 377A. One index of the increasing pressure to make this decision was the incremental but nonetheless significant change in the messaging articulated by Singapore’s premier LGBT community event: The Pink Dot Festival. The festival was initially sanctioned as a celebration of Singapore’s LGBT community—proof, so to speak, of then Prime minister Lee Hsien Long’s claim that LGBT people were indeed welcome in Singapore, notwithstanding its antiquated and discriminatory colonial era laws. But in recent years, in conjunction with a range of legal challenges against those laws, and encouraged by the eventually successful challenge in India against similar colonial era laws, the pink of the festival took on a more distinctly political hue. By 2019 (before Pink Dot had to go online due to the COVID19 pandemic), the festival saw chanting of ‘Tear. Down. This. Law.’ led from the stage, with the host declaring repeatedly that the event was not just a picnic, but a protest. (Han & Ho, 2020)

Clearly, pressure to respond was mounting. The response, when it arrived, is the paradigm case of the societal incorporation mode of political participation—notably, because of the way in which it enables the government to continue to play to both sides of the argument. The most egregious harms associated with homosexuality as a criminal offence are neutralised politically for the government and can be read as qualified support for the LGBT community (while also being fundamentally important for its internationalist economic and industrial policy); but, by reinforcing heteronormative conceptions of marriage and the family, and by declining to address any broader social concerns around discrimination, the government also signals an open hand to its traditional socially conservative constituencies and their socio-political vision for the city state.

Conclusion: exceeding social incorporation via the radical impetus of rights claiming

As indicated above, the present discussion emerged out of my earlier work on sexuality and gender diversity rights in Southeast Asia (Langlois, 2022). There I argued that SOGIESC rights claiming was a distinctive mode of political participation that engaged both state sponsored and civil society organisations, had variously individual and collective elements, and operated across a range of scales from the local through the domestic to the regional and international. That argument was made in an effort to understand the new phenomena of SOGIESC rights claiming—how it came to prominence and continued to develop as a participatory political practice. A key reason for its emergence, I suggested, was the embrace by ASEAN of human rights in general—the governmental turn to manage ASEAN’s engagement with human rights through a policy of social incorporation, rather than through the earlier oppositional ‘Asian values’ mode of rejection. The point, of course, for SOGIESC rights, was that they were deliberately excluded from this new approach, notwithstanding the broader turn to human rights. Nonetheless (indeed, spurred on by this exclusion), activists took up the call for SOGIESC rights, and the political practice of rights claiming did what it so often does once authorised: it generated a movement which soon exceeded the limited bounds set by regime structures, expanding to pursue the broader promise of an emancipatory politics for a just society—one that includes sexuality and gender diversity.

In this sense, the continued existence of SOGIESC rights claiming as a widespread mode of political participation is a marker of the limitations or perhaps even failures of efforts to control human rights by means of the social incorporation mode of participation—the mode that I have suggested is represented by ASEAN’s turn to human rights through the establishment of its own rights regime. Without a doubt, ASEAN’s institutional and formal political human rights structures remain significantly limited in their remit; yet, in the domain of the political imagination, and in the practice of political activism which follows from the imagining of a different world, the effect of a turn from ‘Asian values’ to societal incorporation of human rights through AICHR and the AHRD arguably let the genie out of the bottle: it allowed a human rights vision for the popular political imagination in the region, in the process compromising its own capacity to delimit rights claiming by social incorporation.

As we have also observed, however, the human rights imaginary is not fully welcomed by everyone, being challenged by a resurgence of ‘values claiming’—be this a return to Asian values claims, reference to national variants like ‘Indonesian values’ or more populist backlash or particularist culture war forms of political participation. These challenges, also embedded in social movements, civil societal organisation, and formal political and institutional structures, also reward modes of participation analysis, bearing witness to deep social structures and conflicts and the play of interests and values in our contemporary context. For those committed to an emancipatory politics which includes sexuality and gender diversity, understanding these structures, conflicts, interests and values and attending to how they feed into political practices (by all agents, be they state or civil society) is of critical importance.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The LGBT acronym comes in many forms, with additional letters: I for Intersex, Q for Queer (and another for questioning), A for asexual (and another for allies), and often simply ‘+’ for your preferred extension. The UN standardly uses LGBT or LGBTI. It also uses the SOGI (or SOGIE) nomenclature: Sexual Orientation and Gender Identity (and Expression), particularly in the context of the UN SOGI Independent Expert and the HRC. In many contexts this acronym has been expanded to include Sex Characteristics – SC. SOGIESC is preferred in many Global South contexts on the basis that it carries less ideological and cultural baggage. In many ASEAN contexts, LGBT is commonly used. Various versions of these acronyms will appear in the text with consideration to the usage in source materials and contexts.