A Response to Criticism Against SUHAKAM’s Study “Feasibility of Having Legislation of the Recognition of a Third Gender in Malaysia”

Legal gender recognition is the process of changing the name and gender information on official key documents and in registries, in order to recognize a person’s gender identity. This process recognizes transgender and non-binary persons as equal human beings with dignity and affirms their right to identity and self determination. 

Discrimination caused by lack of legal gender recognition 

The non-recognition of gender identity in legal documents opens transgender persons up to multiple forms of discrimination, violence, degrading and humiliating treatment, fraud and other forms of exploitation. Simple, every day tasks like going to the bank can cause extreme anxiety for a trans person who has to reveal that they are transgender and answer questions regarding their gender identity. 

Another example documented in ARROW’s  LGBT Monitoring Report relates the humiliating experience of a trans woman and her friends who were made to stand in gender-segregated lines based on their gender marker in their identification cards during a club raid. They also faced verbal violence, including being told that they are men. 

The Suhakam study “Discrimination Against Transgender Persons based in Kuala Lumpur and Selangor (2019) shows that 57% of the respondents faced pre-employment discrimination. Respondents were, among other things, subjected to intrusive questions about their gender identity, bodies and appearance, and the difference between their physical appearance and the gender identity stated in their identity cards. 

Doxing or non-consensual disclosure of transgender persons’ gender identity, as well other forms of violation of privacy by state and non-state actors takes place with impunity. There are many instances of Malaysian state agencies that have directly violated transgender and intersex persons’ privacy by disclosing their gender identity in to the public. In 2020, state religious agencies obtained Nur Sajat’s legal documents from the National Registration Department, disclosing her deadname and assigned sex to the media without her consent, resulting in the deadnaming and misgendering of Sajat in the media, and prosecution against her based on her gender identity. Similarly, doxing can also potentially expose transgender persons to vigilantism.

In the past, state agencies have also proposed medical tests that are not evidence- or rights-based to determine a person’s gender identity. Gender identity is self determined. Just like cisgender people, transgender, non-binary and gender diverse persons do not need to be subjected to tests to determine their gender identity. Research shows that as human beings we are able to articulate and express our gender identity from childhood. 

The International Classification of Diseases (ICD-11) removed all trans-related diagnoses from the mental disorders chapter as “evidence is now clear that it is not a mental disorder, and indeed classifying it in this way can cause enormous stigma for people who are transgender…” 

86% of the respondents of the Suhakam study stated that they would prefer to change their gender marker in their identification cards. These are the provided reasons:

  • Their physical features conformed to male or female but this was not reflected in their identification card;
  • To be recognised as woman or man;
  • To avoid discrimination based on gender;
  • To ease daily affairs such as movement, access to education and religion;
  • To reflect current identity in their identification card;
  • It would give benefits, advantages, comfort, confidence and boldness to them;
  • It would be easier to obtain jobs;
  • To avoid confusion of the (respondents) gender identity. 

Legal gender recognition will have a positive impact on transgender persons lives:

  1. Ability to live with dignity and feel a sense of safety and security. The Suhakam study shows 46% of the respondents stated that they don’t feel safe living in Malaysia because of lack of acceptance, discriminatory laws, discrimination, lack of life security, unable to change gender marker in IC, increased vulnerability to arrest, among others. Meanwhile, 72%  have thought of migrating to countries that provide better protection for trans people, legal gender recognition, accessible trans healthcare services, and an environment where trans persons are able to express themselves without hesitation. A gender recognition law will acknowledge transgender persons’ gender identity and contribute to transgender persons’ safety. 
  1. Significantly improve mental health and well-being. Transgender persons and other marginalized groups face minority stress as a result of the discrimination, violence and marginalization that they experience. In addition, transgender and non-binary persons experience varying levels of gender dysphoria, a form of anxiety and stress as a result of binary norms that trans and non-binary people are subjected to. For a transgender person, minority stress and gender dysphoria can surface when they are misgendered and mistreated because of their gender identity. 
  1. Strengthen families and foster family acceptance. Legal gender recognition can help lead to acceptance from family members, and reduce the isolation faced by transgender persons, thereby strengthening  the family institution. One of the main drivers of discrimination, violence and suppression of gender identity and gender expression against transgender persons by family members is fear of discrimination, violence and marginalization of transgender persons. Thus, legal gender recognition and affirming laws can foster wider acceptance of transgender persons. 
  1. Opens doors for protection and access to all areas. Legal gender recognition will address multiple forms of discrimination and contribute to transgender persons gaining greater access to employment, healthcare services, housing, education and other areas of life without discrimination and fear. 

Myth Busting! Debunking JAKIM’s 6 reasons against legal gender recognition in Malaysia 

  1. Membuka ruang kepada perkahwinan sejenis meruntuhkan institusi keluarga (Giving opportunity to same-sex marriage which destroys family institutions)

Families exist in a variety of forms, including nuclear families, single parent families, extended families, step families, and same-sex families. The notion that the ideal family is made up of one mother and one father is outdated, heteronormative and cisnormative, and undermines the reality in which many families find themselves today. 

In Malaysia, many transgender persons experience isolation, discrimination and violence at the hands of family members because of the fear of social stigma.  Legal gender recognition will encourage family acceptance, and be the first step towards addressing the discrimination and marginalization that transgender persons experience.

Transgender persons also have the right to create families and become parents. Research reveals that transgender parents are just as fit parents as heterosexual cisgender parents, and there is no difference between children raised by cisgender heterosexual parents and non cisgender parent, proving that good parenting is not based on gender identity and cisnormative gender roles. 

In reality, there are many children raised by transgender parents who respect and love their parents regardless of their gender identity. The US National Discrimination Survey (2011) shows that 58% of transgender parents found their relationships with their children to be the same or better and 13% found that some things were better and some things were worse after transitioning or sharing their gender identity with their children.    

Research also shows that the quality of the child’s relationship with a parent or parents, the quality of parents’ relationship with each other or other adults and economic factors are among major factors that influence a child’s development and happiness. 

While there are diverse views on the marital institution, marriage equality does not destroy the family institution. Instead, it expands and recognizes the diversity of relationships and family units. Furthermore, it provides adequate protection for persons in diverse relationships. Research shows marriage equality brings positive outcomes in society, among others, decreased mental health burden, increased access to health care among LGBTIQ persons. 

The same sex marriage panic or the anxiety around recognition of transgender persons by a group of people must not be a barrier in addressing discrimination against transgender persons. As we have seen in other countries that have allowed marriage equality or any other forms of union between people of diverse gender, cisgender heterosexual people and LGBTIQ persons co-exist peacefully. 

  1. Menyebabkan jenayah hubungan sejenis (Causes same-sex crime)

Firstly, consensual sexual relations between adults should not be a crime. While consensual sexual relations between adults are criminalized under the laws in Malaysia, such criminalization violates the right to live with dignity, privacy and freedom to be free from violence under international laws and the Federal Constitution. 

Secondly, the notion that transgender persons engage in ‘same sex activities’ reinforces stigma, discrimination and violence against trans people and their partners. Regardless of who trans people are in a relationship with, they are seen as being in a same sex relationship. This can have an othering effect, and often denies the gender identity of the trans person. By using the term ‘same sex activity’ to describe transgender relationships, it forces trans people into their sex assigned at birth, thereby negating trans people’s identities. 

  1. Ketidakadilan kepada jantina asal (An unfair advantage)

Transgender persons do not have any advantage over persons of other gender identity. In reality, transgender persons are denied access in all spaces, be it education, sports, economy, politics, among others. As a result, they are left behind in all areas because of their gender identity. 

The assumption of unfair advantage stems from the conflation of sex and gender as well as flawed biological assumptions of transgender persons. This often results in further discrimination, denial of opportunities, and access to services and facilities. 

There is no scientific evidence that shows trans people have an advantage in the area of sports. The assumption that testosterone levels allow better performance of transgender athletes is unfounded. Scientific evidence shows “studies of testosterone levels in athletes do not show any clear, consistent relationship between testosterone and athletic performance. Sometimes testosterone is associated with better performance, but other studies show weak links or no links. And yet others show testosterone is associated with worse performance.” Biology is only one factor among many other factors that determine the ability to excel in sports, including time, resources, training, and support. 

The notion of ‘jantina asal’ or ‘original sex’ must be unpacked. If sex and gender are two seperate categories, the notion of ‘original sex’ does not make sense. 

More often than not, sex and gender are often confused as being the same thing, due to lack of access to accurate information, limitations in language, and the lack of comprehensive sex education in schools cirriculums

Sex or sex characteristics refers to a combination of genitals, gonads, hormone levels and chromosome patterns. Sex is often is seen as binary, XY is for male and XX is for female, but we also see more combinations than that in real life. Likewise, the existence of intersex individuals are just as natural. Gender can vary in individuals regardless of the sex they are born with.

Gender refers to how we identify in terms of our identity as girl/woman, boy/man, non-binary, or others. Gender, for many, is not a clear cut box or category, which they can fit themselves in. Gender is unique, personal and complex. Often, our gender identity is guessed and assumed at birth based on our genitals as a guide. However, it is important to clarify that our genitals do not determine our gender identity. This categorization of gender identity based on genitals is a categorization based on perceived ideas of procreation. 

The study of gender is multidimensional, and not limited to sociology. Gender, in particular gender identity, is studied in the field of psychology and neuroscience. Multiple research show that sex and gender identity are two seperate categories. 

  1. Menyebabkan penipuan jantina (Causes fraud)

Regardless of gender identity and sexual orientation, any individual can experience crime and violence of any form. However, LGBTIQ persons enjoy limited access to justice and due process because of discrimation from law enforcers, the criminalization of their identities under civil and syariah laws, social stigma and media sensationalism of LGBTIQ related news. 

LGBTIQ persons find it especially challenging to report cases that involve other LGBTIQ persons as perpetrators due to fear of perception of the non-LGBTIQ persons, risks of further stigmatizing and sensationalizing the LGBTIQ population. 

When conservatives use crimes reported by LGBTIQ persons against LGBTIQ persons, it causes adverse harm on LGBTIQ persons, from restriction of access to justice, reinforcement of negative perception of LGBTIQ persons by the general public and fear mongering. Likening gender recognition with fraud can cause further stigma and make it challenging for transgender people to live with dignity and safety, as transgender persons will continue to be seen as frauds and criminals, which in turn puts the lives of transgender persons at great risks. 

Catfishing, fraud and other crimes affect transgender persons and must be addressed separately. Such incidents cannot be used to punish and deny an entire community from having recognition of their gender identity, which will allow them to live with dignity. 

  1. Menafikan prinsip agama Islam yang melarang perbuatan transgender (Denying the teachings of Islam that forbids transgender acts)

There are diverse views on gender identity and sexual orientation in religion. During the Prophet Muhammad’s (pbuh) time, there were no prosecutions of gender diverse persons based on their gender identity. In fact, the Prophet prohibited excessive and punitive punishments against believers..   

Both the Qur’an and hadith indicate that there is a precedent that the mukhannaths or gender-diverse people were treated as women and allowed to be in the same room as women, in this case, being with the Prophet’s wives in their living quarters prophet’s room:

Sunan Abi Dawud 4107 states, ‘A mukhannath used to enter upon the wives of the prophet. They (the people) counted him among those who were free of physical needs.’

“And tell the believing women to… guard their private parts and not expose their adornment except that which appears thereof and to wrap [a portion of] their head covers over their chests and not expose their adornment except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess, or those male attendants having no physical desire, or children who are not yet aware of the private aspects of women-“ Qur’an 24:31

This particular Hadith in reference to being transgender has been narrated by many Islamic scholars like Ibn Majah, Al-Bukhari, Al-Tirmidhi, Ibn Hanbal and Abu Dawud. There is considerable evidence that in pre-colonial Islamic communities, mukhannath served as servants as long as they had no sexual interest in women. They would be allowed to enter women-only spaces, such as harems and other exclusively female spaces. Males whose effeminate qualities are innate and natural, and who do not experience sexual attraction towards women, receive no blame, guilt or shame as they are not considered sinners and should not be punished. Because of the regularity of mukhannath hired in women’s spaces, there were men who sought to take advantage because they lusted after women and pretended to be mukhannath in order to gain access into women’s spaces. 

Al Tabari took it as an example that the Prophet did not forbid a particular mukhannath, Hit, from entering the women’s quarters until he overheard the servant giving a description of the women’s bodies in great detail. Hit was later prohibited from the house because they had breached the trust of the Prophet, but not because of their effeminate identity. Rather the Prophet’s prohibition was a response to their actions in this particular situation. Clearly, just like any other person, the principles of moral and ethical behavior were also applied to them and did not entitle them to speak or behave inappropriately. This hadith narration is commonly used by conservative Muslim scholars to justify hatred for effeminate men and transgender people as it is used as proof that Muslims should not allow them in their houses

Islam has always taken sides with the oppressed rather than with the oppressor since the day of its establishment, and this includes taking a stand against transphobia, xenophobia and misogyny. Conservative scholars argue that changes to one’s body are only allowed under medical circumstances, such as in the case of khunsa (intersex people), but is this not in contradiction of the principle that “God does not make mistakes”? Not only that, the fact that being transgender has been vigorously explored in a variety of science discourses in the last century as a medical, psychological and socio-cultural phenomenon automatically nullifies the conservative argument that “changes in one’s body are only allowed under medical circumstances”. With this coherent argument, Muslim transgender people should be allowed to receive treatment too, as clarified by Sheikh Tantawi, the Grand Mufti of Egypt in his 1988 fatwa that allowing for sex reassignment surgery. 

  1. Mencemari hak asasi manusia (Desecration of human rights)

Suhakam’s aim in conducting the research is to promote and protect the human rights of all persons, including transgender persons. Legal gender recognition upholds transgender and non-binary persons’ right to self-determination, dignity, equality, and non-discrimination, which are guaranteed under Article 5 and 8 of the Federal Constitution. 

In an application by a trans man to change his name and gendered details in his identification card before the Kuala Lumpur High Court in 2016, Justice Nantha Balan affirmed the applicant’s constitutional rights under Article 5 of the Federal Constitution.  

“The Plaintiff has a precious constitutional right to life under Article 5(1) of the Federal Constitution and the concept of ‘life’ under Article 5 must necessarily encompass the Plaintiff’s right to live with dignity as a male and be legally accorded judicial recognition as a male.” 

Similarly, in India’s Supreme Court decision in the case by the National Legal Services Authority of India (NALSA) to legally recognize transgender and gender diverse persons, the Court noted that the non-recognition of gender identity deprives transgender persons of the right to dignity, equality, non discrimination and freedom of expression. The Judge referred to international human rights treaties and the Yogyakarta Principles in its decision. In particular, the Judge noted that: 

“Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender [person’s] sense or experience of gender is integral to their core personality and sense of being. Insofar as I understand the law, everyone has a fundamental right to be recognized in their chosen gender.”

The United Nations recommends the following five legal obligations for governments in order to protect the rights of LGBTIQ persons:  

  • Protect people from homophobic and transphobic violence. 
  • Prevent the torture and cruel, inhuman and degrading treatment of LGBT persons 
  • Prohibit discrimination on the basis of sexual orientation and gender identity, including enacting legal gender recognition laws 
  • Safeguard freedom of expression, association and peaceful assembly for LGBT and intersex people
  • Repeal laws criminalizing homosexuality, including all laws that prohibit private sexual conduct between consenting adults of the same sex.

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