The Phenomena Of Transsexualism In Malaysia – A Socio-Legal Perspective

Births and Deaths Registration Act 1957 & National Registration Act 1959

There relevant legislations, namely the Births and Deaths Registration Act 1957 (“BDRA”) and the National Registration Act 1959 (“NRA”) that have been visited on numerous instances for a direction and/or decision on the matters pertaining to transsexuals. There is no provision in the NRA authorising the National Registration Department of Malaysia (“NRD”) to alter the gender information stated on the Malaysian Identification Card or also known as ‘MyKad’. In addition, there is no provision in the BDRA permitting the recognition of altered sex of the deceased persons.

Mohd Ashraf Hafiz bin Abd Aziz, a male-to-female transsexual, had undergone a sex reassignment surgery in Thailand in 2009 and since then, named herself as Aleesha Farhana (Pandiyan, 2011). Subsequently, in 2011, Aleesha made an application to the NRD to change her name and gender stated in the identification card but the NR had rejected her application. Aleesha then sought for an order from the Kuala Terengganu High Court (Pandiyan, 2011). In the trial, the Senior Federal Counsel, who was representing the NRD, contended that there is no provision or law in Malaysia, which allows the change of gender stated on the identification card and the court, in deciding this kind of case, shall be caution as to the impact of its decision to the public interest (Jeswan, 2011). The High Court agreed to the Senior Federal Counsel’s submission and therefore, dismissed the application on the basis that the court has no power to order a gender change stated on the identification card because there is no law in Malaysia that provides for such a change (Jeswan, 2011). In addition, it is unfortunate that in the same year where Aleesha was frustrated by such ruling, she passed away due to heart complications and low blood pressure (Jeswan, 2011). Aleesha was prohibited to be buried as a female and due to Aleesha’s courageous battle of the legal recognition, her parents had encountered unnecessary ridicule and cruel taunts (Pandiyan, 2011).

In Kristie Chan v Ketua Pengarah Jabatan Pendaftaran Negara [2013] 4 CLJ 627, the appellant, a transsexual, had undergone a gender reassignment surgery. The appellant sought a declaration to be declared as a woman and to compel the respondent, the National Registration Department (“NRD”), to change the gender information on the identification card from ‘male’ to ‘female’. Appellant revealed the difficulties in securing employment and facing immigration problems in Thailand, China and Hong Kong due to inconsistency between physical appearance and stated gender information in the registration documents.

The High Court dismissed the application with four reasons i.e. (i) as stated in the birth certificate, appellant is biologically, a male; (ii) there is no error made on the gender information that warrant a rectification under S 27 of BDRA; (iii) S 6(2) of NRA is not applicable as no error was committed on gender information of the appellant; and (iv) in Malaysia, there is no legislation governing the alteration of gender by gender reassignment surgery.

The appellant appealed against the High Court’s decision and it was dismissed by the Court of Appeal. The justifications of such dismissal, delivered by Abdul Wahab Patail JCA were, in the author’s opinion, rather unconvincing. It was held that, (i) appellant did not provide sufficient evidence to support her application. The appellant had only provided exhibits from the relevant authorities in Thailand and Hong Kong but there were no exhibits from any relevant authorities in Malaysia and no affidavits from the makers to confirm the exhibits. The alleged incident that the appellant had encountered difficulty with Thailand’s immigration had raised the question whether the gender reassignment surgery undergone by appellant was recognised by the Thailand government. (ii) There are no evidence from the medical or psychiatric experts in Malaysia to explain on what is ‘gender’, what made an individual a man or woman, and whether a sex reassignment surgery that changed an individual’s gender shall warrant a change of gender information in the identification card. (iii) The appellant had failed to discharge the burden of proof to warrant the grant of the declaration and order sought.

In Fau En Ji v Ketua Pengarah Jabatan Pendaftaran Negara [2015] 1 CLJ 803, the applicant was biologically a female who had undergone a gender reassignment surgery at Thailand in order to transform into a male. After the surgery, the applicant applied to the respondent for change of name and gender and medical reports were submitted to support the application. Such application was rejected by the respondent. The applicant then commenced an action of judicial review against the respondent’s decision. Besides, the applicant had sought for a declaration that he is recognised legally as a male and sought a mandamus order to change his name as well as gender information from female to male.

The High Court dismissed the judicial review application by referring to the principle established in Corbett v Corbett [1970] 2 AER 33, that ‘gender’ is a complicated question to be decided, it is not determined by the applicant’s desire alone and it involves consideration of chromosomal, gonadal, genital and psychological factors. The High Court further held that, the applicant failed to comply with the ‘Kristie Chan test’ as the medical evidence provided was insufficient and it did not clarify on the chromosomal issue. Zaleha Yusof J had also cited the Paragraph 5.7 of ‘Arahan Jabatan Pendaftaran Negara’, which specifies that an application to change a sexual gender stated on an identification card is not allowed, unless, there is a court order authorising the change. Paragraph 5.7 of the ‘Arahan Jabatan Pendaftaran Negara’ or NRD Directive reads as follows:

“5.7 Penukaran Nama Kerana Menukar Jantina

5.7.1 Pindaan jantina dalam kad pengenalan adalah tidak dibenarkan kecuali atas Perintah Mahkamah.

5.7.2 Permohonan pertukaran nama kerana berlaku pertukaran jantina hendaklah mengemukakan dokumen-dokumen berikut:-

• Perintah Mahkamah yang mengandungi butir-butir pengisytiharan jantina baru pemohon;

• Surat pengesahan doktor Kerajaan (jika ada);

• Surat pengesahan pembedahan penukaran jantina yang dikeluarkan oleh Hospital berkenaan;

• Sijil Lahir (asal dan salinan).”

English translation of the Paragraph 5.7 of NRD Directive as mentioned above is as follows:

“5.7 Name Change due to Reassignment of Gender

5.7.1 Alteration of gender information in the Identification Card is prohibited except with Court Order.

5.7.2 Application for name change due to reassignment of gender shall be supported by the documents as follows:-

• Court Order which contains the details of declaration of the applicant’s new gender

• Endorsement Letter by the Government Doctor (if any)

• Endorsement Letter for the gender reassignment surgery by Hospital in concerned;

• Birth Certificate (Original and Copy)

In Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara [2016] MLJU 825, the applicant, who was born as a female, had undergone gender reassignment surgery. Thus, the applicant sought for a declaration that “he” is legally a male and wanted to obtain consequential order to compel the Director General of NRD to change his name and gender detail in his identification card from ‘female’ to ‘male’. The application was allowed by the High Court where S Nantha Balan J was satisfied with the strong medical evidence provided by the applicant. The medical evidence, which supported the fact that, applicant is a ‘male’, are the reports submitted by the medical experts, for instance, a renowned plastic surgeon, Chartered Clinical Psychologist, Consultant Psychiatrist, Consultant Obstetrician & Gynaecologist, Radiologist etc.

S Nantha Balan J, in his judgment, had distinctively highlighted that, the area of law in Malaysia that relevant to this case and other jurisdictions are not quite settled. Judiciary’s decisions are divided as in certain cases, the courts declined to recognise the individuals who had undergone gender reassignment surgery with the justifications, inter alia, the applicants were unable to pass the ‘chromosome test’. Whereas, in JG v Pengarah Jabatan Pendaftaran Negara [2006] 1 MLJ 90, the High Court refused to apply the ‘chromosome test’ and relied heavily on the medical evidence. S Nantha Balan J criticised the ‘chromosome test’ as ‘archaic’ and shall be abolished because scientifically, it is impossible for a biological female to have male chromosomes and vice versa and hence, to insist on satisfying the ‘chromosome test’ is unreasonable.

Besides, S Nantha Balan J had also affirmed that the applicant has a right to life guarantee under Art 5(1) of the Federal Constitution as the concept of ‘life’ shall necessarily include the applicant’s right to live with dignity as a male and be legally recognised as a male. The honourable High Court judge had quoted a phrase from the book “Document of Destiny - The Constitution of the Federation of Malaysia” by Professor Dr Shad Saleem Faruqi, where:

“…the word 'life' does not refer merely to the animal existence of breathing and living. It covers the right to live with human dignity.”

However, in January 2017, the Court of Appeal decided to reverse the High Court’s decision (Melati, 2017). The Court of Appeal with three-member bench had applied the ‘chromosome test’ and held that the respondent had failed to show medical evidence on chromosome change. The Court of Appeal followed principle laid down in the English case of Corbett v Corbett [1970] 2 AER 33, where the respondent/applicant is required to provide medical evidence of the changes in chromosomal, gonadal, genitals and psychological factors (Hafiz, 2017).

S. Thilaga, an activist from Justice for Sisters, a grassroots campaign to promote Mak Nyah’s rights, stressed that the Malaysian judiciary had been applying the outdated legal precedents that are “inconsistent with science and lived experiences of trans people”. She clarified that (Koshy, 2016):

“Chromosomes do not determine our gender identity; this has been scientifically proven. Chromosomes determine our sex, which refers to our body. Gender is determined by our brain – who we are, how we see ourselves.”

Minor Offences Act 1955

Transsexual, transgender and intersex in Malaysia are vulnerable to be arrested by the police authority for ‘insulting behaviour’ under S 14 of the Minor Offences Act 1955 (“MOA”). In pursuant to S 14 of MOA, any person who speaks or behaves or exhibits in an insulting, threatening, abusive or indecent manner with intention to provoke a breach of the peace, shall be liable to a fine not more than RM 100 (Attorney General’s Chambers of Malaysia, n.d.).