MUST READ: High court decision on change of name & gender marker

A recent decision on name and gender change gives new hope. download and read the decision here. HC 2016 Nantha Balan Tan vs NRD

“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.” Justice Nantha Balan

Some salient points:

Page 31

Arahan Jabatan Pendaftran Negara Bil. 9/2007 paragraph 5.7.1 states that change in gender marker on identification card is not allowed except with a court order. Four documents that are required to change name and gender on the identification card:

  1. Court order that includes the details of the requested gender
  2. Supporting letter from a government doctor (if available)
  3. Letter to confirm gender affirmation surgeries by the hospital that provided the services
  4. Birth certificate (original and copy)

Arahan Jabatan Pendaftran Negara Bil. 9/2007 paragraph 5.7.1  pindaan jantina dalam kad pengenalan adalah tidak dibenarkan kecuali aas perintah mahkamah. Dokumen yang diperlukan

  1. perintah mahkamah yang mengandungi butir-butir pengisytiharan jantina baru pemohon
  2. surat pengesahan doktor kerajaan (jika ada)
  3. surat pengesahan pembedahan penukaran jantina yang dikeluarkan oleh hospital berkenaan
  4. sijil lahir (asal dan salinan)

The courts in Malaysia use Corbett vs Corbett and Bellinger vs Bellinger as precedents. Based on the precedents, four criteria are considered, which includes: chromosomal, gonadal, genital and psychological factors. However, neither chromosome nor genitals determine our gender identity. The current change of name and gender change process is based on operative status and medical intervention.

Mahkamah di Malaysia menggunakan legal precedents Corbett vs Corbett and Bellinger vs Bellinger. berdasarkan dua kes ini, empat kriteria perlua diambil kira: kromosom, gonad (organ reproduktif), genital dan faktor psychology. seperti mana yang kita tahu, kromosom atau genital tidak menentukan identiti gender kita. proses ini berdasarkan status pembedahan dan intervensi perubatan. oleh yang demikian, proses ini terbatas kepada mereka yang sudah menjalani pembedahan.

In addressing the chromosomal criteria, Judge Nantha Balan followed the approach taken by the Family Court in Australia in Attorney General For the Commonwealth v Ken and Others 2003, where “the court emphasized on the importance abandoning the chromosomal factor and highlighting the imperative need to view the matter from the physiological and physiological perspective.”

 

Gender spectrum(EN)_v3

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Brief media analysis – Media reports on the violent death of a young trans woman on 9 March 2016 in Subang Jaya, Malaysia.

Only 1 out of 25 reports gathered by Justice for Sisters regarding the death of the trans woman on 9th March recognized her authentic and self-determined gender identity, by using correct term to address her.

6 out the 25 articles were sourced from Bernama. Only one media outlet, Malaysiakini changed the gender identity in its article to reflect her authentic gender identity. However, they did not use correct gender pronouns.

Further, there was an obscene and disproportionate  attention on her clothing, body, and identity as opposed to details of the case. Kosmo in one of its article included an unverified photo of her before she had transitioned or presenting herself in typically known as men’s attire. The Malaysian Digest included a photo of a trans woman with pixelated breasts for illustrative purposes..

No Media outlet Title Date & time
1 Kosmo Lelaki berpakaian wanita ditemui mati 09/03/2016 1:29pm
Pondan mati ditolak dari kondo 9 march, 2016
2 Harian Metro Mati berpakaian wanita

 

9 Mac 2016, 2:43 PM
3 Malaysiandigest Male Cross-Dresser Killed After Being Thrown Off Apartment In Subang Jaya 9 Mac 2016, 3:19
4 The Star Cross-dresser found dead at Subang apartment 9 March 2016 | MYT 3:26 PM
5 The Malaysian insider Man in women’s clothes found dead at Subang Jaya 9 March 2016 4:00 PM
6 The Sun Daily Transvestite falls to death, Kenyan suspect arrested 9 March 2016 – 06:01pm
7 Astro Awani, Mayat ‘pondan’ dalam bungkusan dicampak dari tingkat tiga kondominium
09, 2016 18:32 MYT

 

Mayat lelaki berpakaian wanita disangka sampah (video) Mac 09, 2016 18:45 (MYT)
Man in women’s clothing found dead after a fight on third floor of condominium (source: bernama) March 10, 2016 00:22

 

8 Malaysiakini Transwoman falls to death at Subang Jaya condo (source bernama) 9 Mar 2016, 11:24 pm
9 Malaymail online Man in women’s clothing found dead after a fight on third floor of condominium (source bernama) March 9, 2016
11:34 PM
10 Bernama Man In Women’s Clothing Found Dead After A Fight On Third Floor Of Condominium
11  

Sinar Harian

Lelaki berpakaian wanita terjatuh dari tingkat 3  

9 Mac 2016

12 Buletin utama TV3 Video + text March 9 2016
13 Projek MMO, Selepas bergaduh, lelaki berbaju wanita mati jatuh kondo (source: bernama) March 9, 2016
08:11 PM
14 Mstar Lelaki Berpakaian Wanita Mati Terjatuh Kondominium (source: bernama) 9 Mac 2016
15 Babab.net Lelaki Berpakaian Wanita Dijumpai Mati Di sebuah Kondominium Mewah 9 Mac 2016
16 suara   tv Mayat ‘Pondan’ Dicampak Dari Tingkat Tiga Kondominium 9 Mac 2016
17 Siakapkeli Lelaki Jatuh Dari Tingkat 3, Ditemui Mati Dengan Pakaian Wanita 9 Mac 2016
18 e-berita Pondan Melayu Ditemui Maut Jatuh Dari Tingkat Tiga 9 Mac 2016
19 Free Malaysia Today Man dressed as a woman falls to his death (source: bernama) March 10, 2016
20 Malaysia instinct Pondan kekasih negro maut jatuh kondo March 10, 2016
21 Utusan Malaysia Pemuda maut ditolak dari tingkat 3 10 Mac 2016 2:26 AM
22 WOWBERITA.ORG

 

Mayat ‘Pondan’ Dalam Bungkusan Dicampak Dari Tingkat Tiga Kondominium

Terms

Except for malaysiakini, the rest of the 21 media outlets used pejorative terms to refer to the women

  • Lelaki berpakaian atau berbaju wanita (10)
  • Pondan (6)
  • Cross dresser (2)
  • Man in women’s clothes or clothing or man dressed as woman (6)
  • Transvestite (1)
  • Transwoman (1)
Terms Media outlet Type
Lelaki berpakaian atau berbaju wanita (10) Kosmo Online and print, BM
Harian Metro
Sinar Harian
Utusan Malaysia
Buletin Utama TV3 TV and online, BM
Astro Awani TV and online, English & BM
Projek MMO Online, BM
Mstar
Babab.net
Siakapkeli
Pondan (6) Kosmo Online and print, BM
Astro Awani TV and online, English & BM
suara   tv Online, BM
e-berita
Malaysia instinct
WOWBERITA.ORG
Cross dresser (2) Malaysiandigest Online, English
The Star Online and print, English
Man in women’s clothes or clothing or man dressed as woman (6) The Malaysian insider Online, English & BM
Free Malaysia Today Online, English
Malaymail online
Astro Awani, TV and online, English & BM
The Star Online and print, English
Bernama State news agency
Transvestite (1) The Sun Daily Online and print, English
Transwoman (1) Malaysiakini Online, English & BM

Other information regarding the reports

Language

BM – 9

English -16

Medium

Video – 2

Article – 23

Types of media

Only online

  • BM – 8
  • English -3
  • Both – 2

Print and online

  • BM – 4
  • English – 2

TV and online

  • BM – 1
  • Both – 1
Online and print, BM (4) Sinar Harian
Kosmo
Harian Metro
Utusan Malaysia
Online and print, English (2) The Star
The Sun Daily
TV and online, English & BM (1)

 

Astro Awani

(news published in BM & English)

TV and online,

BM (1)

Buletin utama TV3
Online, English & BM (2) The Malaysian insider (article published in English)
Malaysiakini

(article published in English)

 
Online, English (3) Malaymail online
Malaysiandigest
Free Malaysia Today
 
Online, BM (8) Projek MMO,
Mstar
Babab.net
suara   tv
Siakapkeli
e-berita
Malaysia instinct
WOWBERITA.ORG
State news agency Bernama

 

 

 

‘Mak Nyah’ witch-hunt fear

Council raises concern transgender persecution may increase discrimination
FRIDAY, OCTOBER 19, 2012 – 12:47
by Hamzah Nazari
Location:
KUALA LUMPUR

A RECENT case in Negri Sembilan where four transgender persons lost their case when challenging a ban on Muslim men dressing and posing as women could spark a witch-hunt by the authorities against the community, the Malaysian AIDS Council (MAC) said.

“We don’t want these things to happen again in other states,” said MAC media and communications head Azahemy Abdullah, when commenting on an earlier MAC statement backing the cause of the four transgender persons.

“While MAC respects the decision of the Negri Sembilan Syariah Court, we firmly believe that every Malaysian is entitled to equal protection and dignity under the country’s constitutional rights,” said Azahemy.

“We fear that this judgment could lead to increased stigma as well as acts of persecution and discrimination by authorities, especially from the enforcement officials of the religious department.”

However, practising Syariah Court lawyer Fakhrul Azman Abu Hasan said Syariah Courts prosecuting transgender persons was not a new trend.

“The syariah law is very clear. A man cannot act as a woman and a woman cannot act as a man,” he said.

He said the Syariah Court prosecution and judges had to act according to the law but usually opt to send transgender Muslims for counselling.

“They give chances, arrange for an Ustaz to give lectures on why they are born as men and women.”

“Most will plead guilty and not contest it. They will pay the fine,” he said.

Fakhrul Azman said transgender persons could challenge the law by claiming it was against human rights in the Federal Court, or by getting their plight to be heard in Parliament.

If they were to win in court, he said the law would be deemed void, but added that this would be difficult as, unlike in European countries, morality is taken as law in Malaysia.

“They (Europeans) do not take morality as law, but in Asian and Muslim countries, they do.”

“The law has been enacted by parliament. If the law is there, the judges have to follow,” he said.

Bar Council president Lim Chee Wee said transgender Muslims were treated well in the past and there was no reason as a matter of policy why they should be persecuted or prosecuted now.

He quoted Teh Yik Koon’s essay, “The Male To Female Transsexuals In Malaysia: What Should We Do With Them?” in which the writer claimed that transgender persons, commonly known as ‘Mak Nyahs’ in Malaysia, had a better standard of living during the colonial days and that there were less sex workers then compared to now.

Many were Mak Andams (bride’s attendants), joget dancers, cooks or artistes.

He said in an interview with a 63-year-old ‘Mak Nyah’, it was related that during the colonial days, they were left undisturbed.

Lim said Malaysians must ask themselves why people who are different and who are at the margins of society could not be accepted.

“Why can’t we accept them as who they are with compassion, and liberal and progressive ideals, rejecting extremism?” he asked Lim said: “Human beings should be treated equally, and the principle of nondiscrimination is paramount in this respect.

“Individuals should have the right to make their own choices relating to gender identity,” he said.

Regional groups back transgender 4

Leven Woon | October 18, 2012

Some 21 local and regional rights groups have hit out at the Seremban High Court verdict last week.

PETALING JAYA: A Seremban High Court’s verdict last week against four Muslim transgenders dressing up in women’s clothes has drawn flak from local and regional rights groups.

In a joint statement endorsed by 21 NGOs, including Indonesia’s Arus Pelangi, Cambodia’s League for Promotion and Defence of Human Rights, the Philippines’ Gender and Development Advocates, Burma’s Human Rights Education Institute and Thailand’s Anjaree Lesbian Group, they described the court’s decision as “regressive”.

“We believe as fellow citizens, irrespective of race or religion, transgender people are equally entitled to all the constitutional rights that are enjoyed by other Malaysians.

“We believe the judge’s ruling is a regressive step and adversely affects the human rights of all Malaysians,” they said.
The statement was also supported by local Islamic Renaissance Front, Malaysia Civil Liberties Movement, Pusat Komunikasi Masyarakat (Komas), Persatuan Masyarakat Selangor dan Wilayah Persekutuan (Permas), Tenaganita, Seksualiti Merdeka and others.

The groups said they were “distraught and disheartened” with the verdict of Justice Siti Mariah Ahmad who held that Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992, excludes the transgender fundamental liberties under the constitution.

“We are saddened to hear that the court has ruled in favour of the state and its officials, thus condoning discrimination and violence on grounds of gender identity,” they said.

The rights advocates also said that the court had failed to consider the medical evidences, such as the fact that the four transgenders had been diagnosed with “Gender Identity Disorder”.

Citing a statement by the American Psychiatric Association (APA), they said medical experts agreed that laws and policies that discriminate people with “Gender Identity Disorder” or a similar term “Gender Dysphoria” should be repealed.
They said transgender people were often subjected to various forms of violence, stigma and discrimination, such as name calling, bullying, or in some cases families disown them.

“Portrayal of transgender people as deviants and threat to public morality in the mainstream media too contributes to the stigma, discrimination and violence that are faced by the transgender community,” they added.

Last week, the Seremban High Court delivered a blow to the four who filed a judicial review seeking to declare Section 66 of Syariah law as ultra vires with fundamental liberties guaranteed under the Federal Constitution.

Siti Mariah had said the four Muslim transgenders are subjected to Syariah law and hence the Federal Constitution should be exempted under this case.

On Monday, NGO Sisters In Islam had called for a comprehensive review on Syariah criminal law.

Malaysian Court Rejects Challenge to Cross-Dressing Ban

By LIZ GOOCH
Published: October 11, 2012

KUALA LUMPUR, Malaysia — A challenge to a law barring Muslim men from dressing or posing as women was dismissed on Thursday by a Malaysian court, prompting concern that more transgender people in the Muslim-majority country may be prosecuted.

In Malaysia, Muslim men can be fined and jailed for transvestism under the country’s dual legal system, which includes secular laws that apply to all citizens as well as Islamic or Shariah laws that apply only to Muslims, like the ban on transvestism. Penalties for cross-dressing differ in individual states, but in Negeri Sembilan, where the case was heard, convicted offenders may be sentenced to up to six months in prison, fined as much as $325 or both.

The application to the court to review the law, which was brought by four Muslims who were born male but act and dress as women, was the first time anyone had sought to challenge the ban in a secular court.

The Negeri Sembilan High Court ruled that because the litigants are Muslim and were born male, they must adhere to the law, because it is part of Islamic teaching, said Aston Paiva, a lawyer representing them.

“In my view, it sets a very dangerous precedent, because it’s effectively saying that state-enacted Islamic law overrides fundamental liberties,” Mr. Paiva said. Referring to the judge, he continued, “She has basically said that even if it conflicts with freedom of expression, the Islamic laws override the Constitution.”

The judge also said that a Malaysian nongovernmental organization that supports transgender people in the country, the PT Foundation, should work with the religious authorities to ensure that transgender people receive counseling, Mr. Paiva said.

The four litigants, all of whom have been arrested for dressing as women, had argued that the law violated Malaysia’s Constitution, which bans discrimination based on gender and protects freedom of expression. They also said the law should not apply to them because they have received diagnoses of gender identity disorder.

While the four litigants dress as women, use hormones and go by feminine names, their official identification cards declare them to be male and carry their original male names. They want to legally change their names and their officially recognized gender because they say transgender people face considerable discrimination in Malaysia, where homosexual acts are banned not only for Muslims but for the whole population, punishable by caning and up to 20 years’ imprisonment.

“I’m disappointed because it basically deprives me of my freedom and deprives me of the right for me to be myself,” one of the litigants, whose legal name is Mohammad Juzaili bin Mohammad Khamis, said of the verdict.

“Now that it’s out and the court decision is not in our favor, I’m concerned that more arrests, more harassment will happen again and again,” added the 25-year-old, who has been fined 1,000 ringgit on three separate occasions for dressing as a woman. She said she planned to appeal the decision and that the other litigants were considering whether to do so.

Thilaga Sulathireh, a researcher and advocate for transgender rights who attended the hearing, said of the verdict: “It basically tells everyone that Muslims have no rights. It’s basically governing how one chooses to dress and how one chooses to express oneself. It’s a very shocking judgment.”

AIDS council backs transgenders’ legal battle

James Lim | October 17, 2012

The Malaysian AIDS Council supports the four transgenders who challenged a dress ban on Muslim men dressing as women.

PETALING JAYA: The Malaysian AIDS Council (MAC) stands in solidarity with the four transgender individuals who lost their bid in challenging the ban on Muslim men to dress and pose as women.

MAC said it is deeply concerned over any negative impacts on the greater transgender community as caused by the Negeri Sembilan Syariah court judgment.

“Transgenders too are productive members of society.

“Denying their gender identity or expression will only cause them to live their lives in constant fear, and limit their opportunities to attain meaningful livelihoods.

“At MAC, we believe in compassion- the universal value that guides all our actions and responses – and strive to eliminate environments that breed intolerance, persecution and penalisation of marginalised communities,” said the Council in a statement.

Previously, the four transgender individuals applied for a judicial review to declare Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment as unconstitutional. The enactment banned men from dressing and posing as women.

However, Justice Siti Mariah Ahmad ruled that it was undisputed as the four applications were Muslims, hence Section 66 applied to them.

Meanwhile, the MAC highlighted the misconceptions of HIV as pertaining to the case.

“MAC also strongly objects to the court’s insinuation that being a transgender will increase the person’s vulnerability to HIV infection.

“Gender identity or sexual orientation does not predispose one to HIV; unsafe sexual practices do,”the Council explained.
MAC together with partner organisation, PT Foundation, said it welcomed the call by Justice Siti Mariah Ahmad to work closely with the religious authorities of Negeri Sembilan.

“We believe this engagement is a step in the right direction to remove all structural barriers to health equities – particularly gender and sexuality-based discrimination – that has been known to negatively affect access to HIV prevention, treatment, care and support services,” added MAC

Sisters in Islam call for Syariah law review

Leven Woon | October 15, 2012
They say the Syariah Criminal Offences Enactment and its record of enforcement is questionable and can lead to abuse.

PETALING JAYA: The Seremban High Court judgment on four Muslim transgenders last week has prompted NGO Sisters In Islam (SIS) to call for a comprehensive review on the Syariah Criminal Offences Enactment.

SIS manager Suri Kempe said this when commenting on the court’s dismissal of the transgenders’ application to seek for the right to dress in women clothes under Article 8 of the Federal Constitution.

Justice Siti Mariah Ahmad, when delivering the judgment, had said that the applicants are Muslims and hence are subjected to Section 66 of Syariah Criminal Enactment 1992, that bars Muslim men from dressing or posing as women.

Suri said the Syariah Criminal Offences Enactment and its record of enforcement is questionable as it can be abused.
“Is it the duty of the state, under the name of bringing about a moral society, to turn what it considers ‘sins’ into ‘crimes against the state’?

“Should the state extend the long arm of the law to what should be best left to the religious conscience of the individual?” she asked.

She said the reality is that sexual minorities in Malaysia, especially Muslims, are vulnerable to numerous abuses by the state,

“We urge the government to form a committee which includes representation from women’s groups, human rights groups, progressive Islamic scholars and constitutional experts,” she said.

She said the government needed to adopt a more humane way that embraces the Islamic spirit of justice, equality and compassion.

“We need one that is not punitive in nature, and does not subject Muslims to discrimination and persecution in the name of Islam,” she said.

Lawyers for Liberty adviser Latheefa Koya labelled the verdict as “a dangerous trend” as the Federal Constitution now seemed to be subservient to Syariah law.

“It’s a problem if the court just makes assumption and did not take into account the differences between Syariah law and the Federal Constitution.”

She stressed that the Federal Constitution is supposed to be applied to everyone irrespective of race or religion.
“There is no article that says it is selective except when it comes to the position of religion and Bahasa Malaysia,” she said.