The Malaysian transgender community and its allies are appalled and disappointed by the decision of the Court of Appeal on 5th January 2017 to retract the High Court order to the National Registration Department (NRD) to change the name, gender marker and last digit of the identification card number of a trans man in his National Registration Identity Card (NRIC). The decision 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.
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. Gender is a personal identity based on one’s experience of one’s own gender. Sex and gender are both basic characteristics of all human beings and do not have be aligned. 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.
Seeking evidence of medical intervention in order to legally recognise a transgender person’s gender is not only a backdated practice, but also 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. Withholding legal gender recognition of transgender people except with medical evidence that they have undergone all possible surgical and medical interventions in order to ‘completely’ transition is harmful to well-being of transgender persons, and places trans people at the risk of undergoing unwanted procedures.
On top of that, asking for evidence of chromosomal change is, as quoting Justice S. Nantha Balan who presided over the case at the High Court, “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.” Someone who is transgender does not identify with the sex they were assigned with at birth. While there are procedures to closer align external body parts to one’s self-image, science has yet to come up with ways to change one’s gonads or chromosomes. This makes it impossible for Malaysian transgender persons to access their fundamental human right to identity. It is important for the courts and the state agencies to keep themselves updated on current information and scientific knowledge of sex and gender. Our ignorance and lack of understanding cannot perpetuate the marginalization and violence that is so prevalent towards trans people. Most importantly, any discourse of transgender people must be guided by evidence and lived experiences of trans people.
We urge the government, the judiciary and the National Registration Department to look at practices and policy in countries like Malta, Ireland, Colombia, Argentina and Denmark with regards to legal gender recognition. In these countries, legal gender recognition is a simple and hassle-free administrative procedure that legally recognises a person’s self-determined gender with a simple declaration, without any need for medical or psychological intervention or assessments. While this does not solve all the issues that transgender people face in Malaysia, it will significantly improve the quality of life for transgender people in Malaysia. The National Registration Department must review its current practices and policy in order to reduce harm towards trans people and afford transgender people a greater ability to rightfully participate as part of society.