It is an open secret that Malaysia has a tenuous relationship with our LGBTQ+ society. With specific laws prohibiting marriage and non-hetero sexual relationships, it may come as no surprise there is no concrete Malaysian statute that recognises the right to change one’s gender. There is however an evolving jurisprudence on the matter which may allow and enforces a person’s right to change their Gender in their Identity Card (“IC”) as is a Malaysian’s right to life[1] and to live with dignity.
The Case at the Court of Appeal: Kristie Chan Case & the Chromosomal Test
For the longest time, Malaysian jurisprudence has taken an archaeal view on gender determination. The courts, crystallised with the infamous Kristie Chan case[2], has taken the point that a person’s gender is the one assigned at birth. A birth certificate reflects the gender of the person at birth, and the same gender identification is used to determine your Gender as per your IC. Therefore, a person cannot change their gender on their IC without changing their Birth Certificate[3]. Important to note is that a birth certificate cannot be amended and therefore by default, one cannot ever change one’s gender.
Furthermore and in any event, the Court of Appeal have also considered the jurisprudence set out in UK law in the cases of Corbett v Corbett and Bellinger v Bellinger.
[8] A declaration that a person is currently of a gender other than that such person was born as is not a simple issue. As Lord Nicholls of Birkenhead said in Bellinger v. Bellinger [2003] UKHL 21, whether a person can change the sex with which he or she is born is a statement in over-simplified and question-begging form. The specific question in that case was whether the petitioner Mrs Elizabeth Bellinger was validly married to Mr Michael Bellinger. The House of Lords had to consider the relevant legislation. It was held that since the Matrimonial Causes Act 1973 requires that a marriage is void unless the parties were respectively male and female, the question was whether Mrs Elizabeth Bellinger was female within the meaning of that expression in the statute.
[9] Lord Nicholls continued his speech in Bellinger v. Bellinger as follows:
…
[10] The House of Lords, in that case, concluded that the marriage was not valid under the English legislation in the context of the meaning of the term "female" in the Matrimonial Causes Act 1973.
[11] Ormrod J dealt with a similar question in similar context in Corbett v. Corbett [1971] P 83, and had arrived at the same conclusion. In both cases, the parties had wanted a declaration their marriage was not valid.
[12] These cases serve to show gender is a multi-faceted question, and not involving the desire of the applicant alone, but involve consideration of chromosomal, gonadal, genital and psychological factors.
The Court had recognised gender as a multi-faceted question, but one with a biological bias. As one will observe, three of the four considerations are biologically linked.
Nevertheless, this still posed a problem for Kristie. Kristie had undergone a sex change and had obtained medical evidence from Hong Kong and Thailand that she had had a successful surgery. Unfortunately, this was not sufficient to allow for the change in her Gender and IC number. The learned Appellate judges had stated that seeing as the surgery had been by professionals who could not be called to Court, this meant that Kristie had not discharged her burden.
This line of judicial decision should be contrasted with the case of J-G v Pengarah Jabatan Pendaftaran Negara [2005] 1 MLRH 760 in which the High Court had taken a different interpretation to the factors outlined in Corbett v Corbett. The same was succinctly outlined by the Justice James C Y Foong[4] as follows:
If I may classify solely for the purpose of distinction, Wong Chiou Yong (p) v. Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Niagara (supra) followed the tradition approach as set out in the celebrated case on this subject: Cortett v. Corbett [1970] 2 All ER 33. It is generally accepted by the courts following the advice of the medical profession that to assess and determine the sex of a person, 4 basic criteria must be considered:
Chromosomal factor;
Gonadal factor (presence of testes or ovaries);
Genital factor (including internal sex organs);
Psychological factor.
…
And according to Justice Ormrod J, who presided over Corbett v. Corbett , "the law should adopt, in the first place, the first three of the doctors' criteria, ie, the chromosomal, gonadal and genital tests, and, if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention".
Thus the Learned High Court judge had determined that since the medical evidence indicated that J-G had successfully transitioned, therefore, she was entitled to change her gender in her MyKad and consequently also obtain a change in her IC number.
This author would like to point out that the Learned Justice was a lot more progressive in his views, adopting Australian and European jurisprudence in recognising the psychological factor in relation to Gender. While the Court of Appeal in Kristie had effectively ignored the same, the fact that the Court of Appeal did not touch on psychological aspect has been used to state that the psychological factor plays an important and critical role.
THE CURRENT STATE OF PLAY: TAN POOI YEE[5]
Justice Nantha Balan in the seminal case of Tan Pooi Yee[6] has set down the law in relation to applications for a change in MyKad wherein a Malaysian citizen had undergone a sex change. The case of Tan Pooi Yee was where Mr. Tan, formerly a female, had undergone gender reassignment surgery and had been certified as male. Moreover, he had also been certified by a psychiatrist as being psychologically male. The Learned Justice had unequivocally stated that the Malaysian Judiciary should abandon the chromosomal requirement to establish gender but instead focus on the biological and psychological factors[7].
The Attorney General Chambers had raised two grounds for their opposition which deserve some attention. Firstly, the Senior Federal Counsel raised that should such a declaration be allowed, there would be confusion in the department as people could change their gender at whim. The Learned Judge was quick to point out that such an argument was ludicrous. In allowing Mr. Tan’s application, it would create certainty and avoid confusion. Mr. Tan looked and acted as a male. By forcing him to remain with an IC which ended with an odd number, he was subject to further questioning and in some instances ridicule. To force a citizen to undergo such treatment just to avoid an alleged confusion within the National Registration department would be contrary to the Constitutional right afforded to all citizens to live with dignity[8].
The second argument raised was the law did not provide for the alteration, correction and.or amendment of gender of a person and that there was no express legislation to re-register the gender of a transsexual person[9]. Further, the Federal Senior Counsel put forth that the National Registration Department had expressly stated via an Arahan that a change in gender on the IC of a person is not allowed without an express court order[10].
The Learned High Court Judge reasoned that seeing as the Arahan came after the spate of cases including J-G and that Arahan had expressly stated a Court Order would be needed, this meant that the National Registration Department recognised that there was such an authority to allow for a change of gender[11].
Therefore, Justice Nantha Balan held that where an applicant had provided proof of change of gender and where there was psychological proof of the said re-assignment, it was sufficient for a Court of law to grant the declaration for a change of gender, change of name and in consequence, a change to one’s MyKad’s number.
Next Steps?
It is clear that from reviewing cases that Malaysia needs to legislate in relation to amendments to the MyKad upon gender re-assignment. The UK Parliament, in response to the Bellinger case had introduced the Gender Recognition Act to allow transgender persons to legally change their gender. It is therefore high time that Malaysia legislate on this matter. While gender reassignment may be a politically sensitive issue, there should be no obstacle for Parliament to legislate an amendment to the National Registration Act to allow for an amendment of one’s MyKad/IC once having undergone gender re-assignment surgery. Parliament could use Tan Pooi Yee as a guide and state that all citizens be allowed to change their gender provided they can provide medical proof as to the reassignment and/or as to the psychological factors rather than require a person to take legal action and get the court’s declaration on the same.
References:
[1] Article 5(1) Federal Constitution
[2] Kristie Chan v Ketua Pengarah Jabatan Pendaftaran Negara [2013] 1 MLRA 113
[3] Ibid at paragraph 4
[4] J-G v Pengarah Jabatan Pendaftaran Negara [2005] 1 MLRH 760
[5] Tan Pooi Yee v Ketua Pengarah Jabatan Negara [2016] 5 MLRH 501
[7] Ibid at paragraph 52, 53, 64 and 65
[8] Ibid at paragraph 66
[9] Ibid at paragraph 45 and 46
[10] Ibid at paragraph 58
[11] Ibid at paragraph 63