KUALA LUMPUR, Jan 11 — Malaysia’s transgender community criticised today the Court of Appeal’s recent overturn of a ruling granting a trans man the right to change his registration details and be formally identified as a male.
The group and its allies, which called themselves Justice for Sisters, said the decision wilfully disregards current scientific and medical understanding of gender identity, as well as the realities and lived experiences of transgender people.
“It also displays a wilful ignorance of good practices worldwide with regards to the role of the state in its duty to uphold and protect the rights of transgender persons,” it said in a statement.
“Sex is a biological construct that is usually assigned at birth based on the visible genitalia of a child.
“However, it comprises other aspects, including chromosomes, gonads, secondary sex characteristics and others,” the group added.
The Court of Appeal on January 5 allowed an appeal by the government to set aside a High Court ruling that granted a woman who underwent a gender reassignment surgery to change his identity card details.
A three-judge panel led by Datuk Seri Zakaria Sam reached a unanimous decision, saying there was merit in the National Registration Department (NRD) director-general’s appeal against the 30-year-old respondent who now looks like a man.
But Justice for Sisters argued that gender is a personal identity based on one’s experience of one’s own gender, and not based on societal description.
It also said that sex and gender are both basic characteristics of all human beings and “do not have to be aligned”.
It then argued that by overturning the decision to allow the NRD to mark the transgender’s sexual identity as a man, the person could be liable to discrimination.
“Legal documents, including the NRIC, bearing gender markers that do not reflect the bearer’s gender identity poses systemic and structural discrimination, which severely impedes their quality of life.
“For example, this mismatch poses a constant risk of humiliation and harassment to transgender persons from other people or groups,” it said.
On July 18 last year, the NRD was ordered by the High Court to declare the transgender a man, on grounds that he has a constitutional right to life under Article 5 (1) of the Federal Constitution.
According to past news reports of the ruling, the constitutional concept of “life” accords the transgendered respondent the right to live with dignity as a male and be legally accorded judicial recognition as a male.
The High Court judge presiding the case, S Nantha Balan, also ordered the NRD director-general to change the respondent’s name and last digit on the identity card to reflect his identification with the male gender.
In overturning the High Court ruling, the Court of Appeal supported the NRD’s citation of biological reasons to deny the trans man to be identified as male.
But Justice for Sisters countered that the appellate court’s demand for evidence of medical intervention in order to legally recognise a transgender person’s gender is not only a backdated practice, but exposes a fundamental misunderstanding of transgender people and gender identity.
“Aside from issues of affordability, accessibility to healthcare and legal barriers that impede access to healthcare; fundamentally, gender identity is not determined by our genitals,” it said.
The group then noted that many countries in the world have progressed in recognising transgender rights and urged the judiciary and the National Registration Department to emulate them.
It said countries like Denmark, Malta, Ireland and Argentina have simple legal gender recognition that legally recognises a person’s self-determined gender with a simple declaration.