PUTRAJAYA, Jan 5 — The Court of Appeal today allowed an appeal by the government to set aside a High Court ruling which granted a woman who underwent a gender reassignment surgery to change his identity card details.
In a unanimous decision, a three-judge panel led by Datuk Seri Zakaria Sam said 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.
“We have read the submissions and after holding a discussion, we have come to a unanimous decision that there is a merit in the appeal.
“With this, we allow the appeal and set aside the ruling by the High Court,” Zakaria said, adding that the written grounds of judgment will be provided later.
Malay Mail Online is not disclosing the transgender’s identity to protect his privacy.
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.
High Court judge S Nantha Balan also directed 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.
The judge noted that the respondent who had undergone a gender replacement surgery in Thailand in 2009, had grown up behaving and living like a man, and had obtained the validation of the medical profession that he is a male person.
The High Court judge reportedly added in his ruling that amending his identity card details would avoid confusion following his gender reassignment surgery.
“It all boils down to the quality and persuasiveness of the medical and psychiatric evidence and factual matrix that is presented to the court as the application for a declaration must be for genuine reasons and not for spurious or suspicious reasons.
“In my view, the chromosomal requirement is archaic and should be discarded because scientifically, it is impossible for a biological male to have female chromosomes and vice versa.
“The male XY and female XX chromosome will remain static throughout the individual’s natural life. To insist on the “chromosomal requirement is to ask for the impossible”, Nantha Balan was quoted as saying in his ruling by The Star daily in an August 21 report last year.
Senior Federal Counsel Mohamad Rizal Fadzil, who represented the NRD director-general, in his submission today said the respondent had a duty to show on evidence that all the requirements and standards on the respondent’s sexual conditions and gender reassignment would render his legal status to be changed in consideration of chromosomal, gonadal, genital and psychological factors.
“A medical report was issued after he did the gender reassignment operation in Thailand. No medical report before the sex change surgery.
“The report didn’t state the chromosome, it didn’t say anything about chromosome just physical condition,” Mohamad Rizal told reporters later.
The respondent, represented by counsel William Lim was not present at the Court of Appeal today.