Court must allow Aleesha Farhana to change her name and gender
Statement from the Malaysian Trans community on Aleesha Farhana’s application to change her name and gender
We, the members of the trans community, are extremely disappointed by the decision of the High court judge, Datuk Yazid Mustafa, in dismissing Aleesha Farhana Abdul Aziz’s application to have her name and gender altered in her identity card. The ruling is inconsistent with the precedence established in 2005 when a mak nyah from Kuala Lumpur made the same application. Justice James Foong, in the case of JG v Pengarah Jabatan Pendaftaran Negara 2005, had then held in favour of the mak nyah in question (see Appendix 1).
Aleesha has expressed desires to further her studies and it is for this reason she wishes to change her name and gender on her official documents. Just like everyone else, Aleesha and many like us are striving to better ourselves and contribute to society. Aleesha and all Malaysian trans people deserve the same opportunities as others to improve the quality of our lives and pursue our dreams.
The court must allow Aleesha to change her name and gender. Her rights and the court’s duty must not be held hostage by the sensitivities of those who are ignorant about transsexualism. By denying her her right, the court is perpetuating an environment of discrimination within which she will never find the justice due her.
Trans people like Aleesha face extreme levels of stigma and discrimination in Malaysia. The discrimination is often perpetuated by biased, negative reporting from the media and endorsed by state mouthpieces, fueling the public to further hate, marginalise and abuse an already vulnerable group of people. These abuses, ranging from physical violence to mental torture to sexual assault, happen from when we are still children right into our adulthood. Lack of attempts to understand us have resulted in many being kicked out of families, schools and work. We are often prevented from accessing health services, housing, education, employment, and other basic rights enjoyed by all Malaysians. Without the law on our side, we are left without legal recourse to redress any injustice and abuse we suffered.
The unwillingness of the Malaysian government to recognise trans people as equal before the law facilitates this ugly persistence in violating us. Official recognition has in fact been granted by both Asian and Islamic nations. These include Singapore which recognises male-to-female transpeople and female-to-male transpeople; Nepal and Pakistan which recognise trans people as “third gender”; Iran, Egypt, Thailand, India and Pakistan, where sex reassignment surgeries are allowed and conducted.
These policies are justified by many scientific studies that have documented transsexualism as a condition resulting from many varied biological causes. Forcing trans people to behave in accordance to external sexual organs have been counterproductive to mental and physical health. However, through a variety of remedy now available, including hormonal therapy and sex reassignment surgeries, many trans people have been able to live happily and productively according to the gender identity with which we identify.
We urge the relevant authorities to take necessary measures and immediately act to create an enabling and safer environment for Malaysian trans people. This includes the repeal of laws that criminalise trans people for our identity, dressing and mannerisms. The government must set up a nationwide consultation with the trans community as soon as possible in order to better understand our issues. It is about time we have policies, programmes, services and legal remedies that meet trans people’s needs as defined by us.
We request that all concerned work to realising the spirit and intent of Article 5(1) of the Federal Constitution which clearly states that no person shall be deprived of his/her life or personal liberty save in accordance with the law. This article is strongly aligned to Principle 17 of the Yogjakarta Principles, which emphasises that:
“Everyone has the right to the highest attainable standard of physical and mental health, without discrimination on the basis of sexual orientation or gender identity. Sexual and reproductive health is a fundamental aspect of this right.”
In June 2011, the United Nations Human Rights Council (UNHRC) passed a resolution to document discriminatory laws and practices and acts of violence based on sexual orientation and gender identity, and to study how to end human rights violations based on sexual orientation and gender identity. The international community stands with all of us in Malaysia whose rights have been violated for our gender identity. We therefore remind the Malaysian government of the pledges it made to become a member of the UN Human Rights Council, and as a member of the UN Human Rights Council, Malaysia is obliged to respect and uphold the human rights of all, equally and unconditionally.
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Appendix 1
JG v Pengarah Jabatan Pendaftaran Negara 2005
Judgment of James Foong, J
Introduction
The plaintiff is requesting from this court:
(1) a declaration that she or he (but for ease of reference, I shall use the female gender to describe him or her in this entire judgment) be declared a female;
(2) that the registration department be directed to change the last digit of her identity card to a digit that reflects a female gender.
Decision
After reading the relevant affidavits filed in this case and considering the oral and written submissions presented by both parties, I allowed both prayers requested by the plaintiff. Before I proceed to give my reasons, the following facts, which are not disputed must be disclosed.
Plaintiff's history
The plaintiff was born a male by the name of BGHL on November 8, 1974 in Penang. When she became aware of her physical self, she felt more inclined to be a woman except that she was in a man's body. Since then, she considered herself a female and lived like one. In 1996, at a hospital in Thailand called Siroros Hospital, she underwent a gender re-assignment. In layman's term she had a sex change. To support this, she enclosed a certificate issued by this hospital signed by doctors to say that she "got the surgery for changing the sex from male to female completely at Siroros Hospital on. May 21, 1996, then she can live like a woman".
After the operation, she applied to the defendant to change her name from that of the former to the present - JG. Accompanying this application is a statutory declaration by her declaring the reason why she is applying for this change of name: it is due to her successful gender re-assignment surgery. Obviously accepting this, the defendant issued to her a new identity card with her new name.
The plaintiff then applied for MyKad but was informed that the sex of a person would be stated therein. Since her current identity card carries an odd digit at the end of a line of numbers, she would still be considered a male on the record of MyKad.
The plaintiff then elaborated that since her operation, she worked as a model and from a further affidavit it is disclosed that she is much sought after as one. But on many occasions she was embarrassed when she had to disclose her identity card number in some assignments which implicated her as a male.
The plaintiff then disclosed that she has had a boyfriend for 10 years now and they both have plans to get married legally. Again, this incomplete change of identification of her gender may prevent this.
Medical evidence
Supporting this plaintiff’s application are 3 local medical consultants.
The first is Dr Rabin Gonzaga, a consultant psychiatrist from Gleneagles Intan Medical Centre, Kuala Lumpur. He certifies that the plaintiff “does not suffer from any mental illness/psychological disability at present” and that she “lives a full and satisfying life as a woman and has done so for the last 8 years following her surgery”.
The second is Dr Chia Wee Van, a consultant surgeon in paediatric surgery and paediatric urology. He confirmed that he has examined the plaintiff and found that since “her surgery 8 years ago she has been a complete female in every sense of the word, i.e. not only from the mental and psychological perspective, but also the physical sense with reference to both I her genitalia and body structure”.
The third is Dr Wong Kok Kien, a consultant in obstetrics, gynaecology and oncology with Gleneagles Intan Medical Centre. He said that he has examined the plaintiff and confirmed “she has undergone a sex change operation from male to female”. He added that she “now got female genitalia with reconstructed labia and vaginal …. she is now FEMALE”.
The defendant's stand
In the only affidavit of the defendant, no challenge is mounted against the assertions of the plaintiff particularly relating to the gender reassignment and the findings of all the medical consultants mentioned. The only ground in opposing this application is that the record on the sex of a person cannot be changed; it has to follow that as stated in the person’s birth certificate and, in this case, the plaintiff’s birth certificate indicates that she is a male.
As to the plaintiffs successful change of name in the identity card, the defendant explained that such change is permitted under reg 14 made under the Registration Act 1960 but this relates only to a name rather than a gender change.
Analysis/reasons
During the hearing of this application, I was informed that another court of concurrent jurisdiction has rejected an application of a similar kind as this case. But unfortunately the grounds of judgment in that case was not made available or published when the decision in this case was delivered. However before writing these grounds, I had the good fortune to read the very commendable, well written and reasoned judgment of my learned brother Mr. Justice VT Singham in the case of Wong Chiou Yong (p) v Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara [2005] 2 AMR 415. The facts there are very similar to this instant case except that Mr Justice VT Singham has to deal with a female who wants to be a male whilst I have to deal with the direct opposite.
Nonetheless, as reminded by Mr Justice VT Singham, though such matters are sensitive in nature, the courts would “not abdicate and shrink from its duty and will endeavour to confine its reasoning and decision within the limits and contexts of the application”.
Most of the cases cited in Wong Chiou Yong (p) v Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara, supra, are being referred to by the parties in their submissions to me. I do not intend to repeat them. And basically from these authorities two schools of thought surface; the traditional and the progressive. These are just indicative terms to represent the approach taken by the courts in the Commonwealth as well as those by the European Union and has no bearing to suggest preference.
If I may classify solely for the purpose of distinction, Wong Chiou Yong (p) v Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara, supra, followed the tradition approach as set out in the celebrated case on this subject: Corbett v Corbett (Otherwise Ashley) (No 1) [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:
(1) Chromosomal factor;
(2) Gonadal factor (presence of testes or ovaries);
(3) Genital factor (including internal sex organs);
(4) Psychological factor.
For a brief description of chromosomes, it is essentially a nucleus of individual cells of the body on which the genes of a person are carried. This, in turn, is the mechanism by which hereditary characteristics are transmitted from parents to their off spring. A normal female would have a pair that is described as XX. And for a normal male there would be a pair described as XY. These indicators do not change. In short, the biological sexual constitution of a person is fixed at birth and cannot be changed.
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, i.e. 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”.
Such restriction of course drew some contrasting views in judgments over almost similar factual situation some 30 years later when the social policy has changed and medical science has advanced, particularly in the area of gender reassignment. This led Lord Justice Thorpe in Bellinger v Bellinger [2002] 1 All ER 311, in the Court of Appeal to give a dissenting judgment where he felt, like I do, that the psychological factor has not been given much prominence in the determination of this issue. He was of the view that psychological factors cannot be considered at birth because they do not yet manifest, they may become an overriding consideration subsequently as the individual develops. This view, in England at least, remained a minority view when the House of Lords upheld the majority decision of the Court of Appeal in Bellinger v Bellinger [2003] 2 All ER 593.
However on the other side of the globe, in Australia, as well as the European continent under the European Court of justice, a more liberal approach is ad-opted. In AG (cth) v "Kevin and Jennifer” [2003] FamCA 94 the full Court of Appeal of the family court declined to follow Corbett v Corbett, supra, and declared, “we should also treat biological factors as entirely secondary to psychological ones”. It went further to say, “In other words, where a person’s gender identification differs from his or her biological sex, the former should in all cases prevail. It would follow that all transsexuals would be treated in law according to the sex identification, regardless of whether they had undertaken any medical treatment to make their bodies conform with that identification”; thus upholding the principle that: “we do not determine sex; in medicine we determine sex in which it is best for the individual to live”.
Of course there are fears of uncertainty and the lack of “a clear coherent policy” as well as criteria or pre conditions to be satisfied before legal recognition can be given to alter the sex of a person. These are comprehensively set out by Lord Nicholls in the judgment of the House of Lords in Bellinger v Bellinger, supra, when confirming the continuing adherence to the test as set out in Corbett v Corbett, supra, to determine the sex of a person. And in the end, like in most of these cases favouring the Corbett v Corbett, supra, test, the gauntlet is thrown back at the legislative body to make the necessary laws for the court to follow if Parliament so wishes. But then again, the legislative body would depend on the medical opinions. And here, in this instant case, the medical men have spoken: the plaintiff is FEMALE. They have considered the sex change of the plaintiff as well as her psychological aspect She feels like a woman, lives like one, behaves as one, has her physical body attuned to one, and most important of all, her psychological thinking is that of a woman.
In practically all authorities cited and considered, those courts that followed the principles enunciated in Corbett v Corbett, supra, (including Corbett v Corbett) had expressed sympathy with the victim trapped in such predicament and regretted that they could not assist. But surely for reasons as discussed, when it is based on medical evidence then the courts should play its part and grant relief where justice is due.
In this case, the first prayer is for a declaration which this court has power under the Specific Relief Act to grant. As for the second prayer, it concerns only an administrative exercise and the defendant is empowered by law under s 6(2)(o) of the National Registration Act 1959 to make a correction and alteration in the register and identity card. All these would give full effect to Article 5(1) of the Federal Constitution which states that “no person shall be deprived of his life or personal liberty save in accordance with law” (emphasis added).
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Appendix 2
PRINCIPLE 17. The Right to the Highest Attainable Standard of Health
Everyone has the right to the highest attainable standard of physical and mental health, without discrimination on the basis of sexual orientation or gender identity. Sexual and reproductive health is a fundamental aspect of this right.
States shall:
a) Take all necessary legislative, administrative and other measures to ensure enjoyment of the right to the highest attainable standard of health, without discrimination on the basis of sexual orientation or gender identity;
b) Take all necessary legislative, administrative and other measures to ensure that all persons have access to healthcare facilities, goods and services, including in relation to sexual and reproductive health, and to their own medical records, without discrimination on the basis of sexual orientation or gender identity;
c) Ensure that healthcare facilities, goods and services are designed to improve the health status of, and respond to the needs of, all persons without discrimination on the basis of, and taking into account, sexual orientation and gender identity, and that medical records in this respect are treated with confidentiality;
d) Develop and implement programmes to address discrimination, prejudice and other social factors which undermine the health of persons because of their sexual orientation or gender identity;
e) Ensure that all persons are informed and empowered to make their own decisions regarding medical treatment and care, on the basis of genuinely informed consent, without discrimination on the basis of sexual orientation or gender identity;
f) Ensure that all sexual and reproductive health, education, prevention, care and treatment programmes and services respect the diversity of sexual orientations and gender identities, and are equally available to all without discrimination;
g) Facilitate access by those seeking body modifications related to gender reassignment to competent, non-discriminatory treatment, care and support;
h) Ensure that all health service providers treat clients and their partners without discrimination on the basis of sexual orientation or gender identity, including with regard to recognition as next of kin;
i) Adopt the policies, and programmes of education and training, necessary to enable persons working in the healthcare sector to deliver the highest attainable standard of healthcare to all persons, with full respect for each person's sexual orientation and gender identity.
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Appendix 3
Studies on Transsexualism
Transsexualism - attitudes in general practice
“Transsexualism was long regarded by the medical profession as a mental disorder. Historically, denial, aversion therapies, hormone 'reinforcement' and even electroconvulsive shock treatments were the lot of those compelled to articulate their overwhelming need to identify as members of the gender opposite that assigned to them at birth. We now know and understand that, just as the gonads, genitals and chromosomes are differentiated as to gender, so too is the brain. While the relationship between brain morphology and 'gender identity' is yet to be finally proven beyond scientific doubt, the extent of empirical and anecdotal evidence supporting it continues to grow such that the factors to be considered when determining the legal gender of a person now include the person's self perception and any biological features of the person's brain that are associated with a particular gender.” – Gurney KW, Source: Supreme Court of Victoria, Australia.
http://www.ncbi.nlm.nih.gov/pubmed/20372674
Male-to-Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus
Regardless of sexual orientation, men had almost twice as many somatostatin neurons as women (P P = 0.83). In contrast, the neuron number of a female-to-male transsexual was found to be in the male range. Hormone treatment or sex hormone level variations in adulthood did not seem to have influenced BSTc neuron numbers. The present findings of somatostatin neuronal sex differences in the BSTc and its sex reversal in the transsexual brain clearly support the paradigm that in transsexuals sexual differentiation of the brain and genitals may go into opposite directions and point to a neurobiological basis of gender identity disorder.
http://jcem.endojournals.org/content/85/5/2034.full
Scientists find a gene for the transsexual experience
The research confirmed that transsexuality was not a lifestyle decision, as some had suggested, said another team member, Trudy Kennedy, the director of the Monash Gender Dysphoria Clinic in Melbourne.
"People who come to our clinic describe how they knew they were different at a very early age, just three or four years old. This is something that people are born with," Dr Kennedy said.
http://www.examiner.com.au/news/national/national/general/scientists-find-a-gene-for-the-transsexual-experience/1343808.aspx?storypage=1
Definition & Synopsis of the Etiology of Gender Variance
Gender Identity Research and Education Society
In conclusion, transsexualism is strongly associated with the neurodevelopment
of the brain. (Zhou et. al., 1995; Kruijver et. al., 2000). The condition has not been found to be overcome by contrary socialisation, nor by psychological or psychiatric treatments alone (Green, 1999). Individuals may benefit from an approach that includes a programme of hormones and corrective surgery to achieve realignment of the phenotype with the gender identity, accompanied by wellintegrated psychosocial interventions to support the individual and to assist in the adaptation to the appropriate social role (Green and Fleming, 2000). Treatments may vary, and should be commensurate with each individuals particular needs and circumstances.
http://www.shb-info.org/sitebuildercontent/sitebuilderfiles/etiology-definition.pdf
For more information:
World Professional Association for Transgender Health
http://www.wpath.org/index.cfm
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Appendix 4
Al Azhar Approves Sex Reassignment Surgery
Date: 05/11/97
Subj: Sex-Change Son Wins Court Decision
Date: 97-05-11 15:03:50 EDT
From: AOLNewsProfiles@aol.net
AP-NY-05-11-97 1500EDT Copyright 1997 The Associated Press.
Al Azhar approves SRS
Cairo (AFP) from the Jordan Times, November 12, 1995.
Seven years after throwing out a medical student who changed from a man to a woman, Al Azhar, the highest Sunni Islam authority in Egypt, has permitted transsexuality under some conditions.
"A man can undergo an operation to become a woman and a woman can do the reverse if a doctor deems the intervention necessary to bring out signs of femininity or masculinity which are present but hidden" a new fatwa or religious decision said.
"Since 1988 around 20 sex change cases have been registered in Egypt. Most of them involve men who become women," the head of the civil status bureau, Ibrahim Beseila, told AFP.
Sex change operations are authorized by Egypt's doctors' union "but are done quietly due to the sarcasm they raise fro the public" a union source said.
Sayed Abdullah, the first known case in Egypt, ran into more than just sneers. Al Azhar University threw him out of its medical school in 1988 after he underwent the operation and emerged Sali Abdullah.
At the time the university condemned the transsexual as a "disgusting imitation of a woman forbidden by Islam".
An administrative court later overturned the university's ruling and ordered Sali placed in Al Azhar's medical school for women.
But Sali had no problem in avoiding military service, required only for men in Egypt. She also succeeded in changing her identity card after a surprised ministry of interior committee assigned with reviewing changes in the document called in doctors to testify to the first-ever change in the 'sex' category of the card.
Sali also married after working as a belly dancer in a Cairo cabaret where she attracted numerous clients, not to mention the interest of the press in which her photo was everywhere.
But Sali turned down an interview with AFP, saying, 'My husband is jealous and has forbidden me to speak to the press. I obey him to preserve our happiness.'
The instant press interest the revealed transsexual raises has apparently given ideas to men looking to get out of their military service and women wanting more than their half-share of inheritances.
'Once a farmer arrived in a niqab (a veil that completely covers the face) and speaking in a feminine voice. He didn't expect to be examined by doctors who confirmed that he was male,' Biseilla said.
© The Associated Press
