media release: Uphold right to identity of transgender persons

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.

 

Understanding sex and gender: distinctions, assumptions and violence

Understanding sex and gender is imperative in ending violence and marginalization of transgender persons

Overwhelming evidence affirms that gender identity is an innate part of our being, and sex and gender are two separate categories that all human beings have. Neither sex nor gender are binary, meaning consisting of only two identities.

Sex – a combination of our chromosomes, external and internal sexual reproductive organs, hormones, and secondary sexual characteristics – is a spectrum, and does not determine our gender identity. The common misconception is that sex only consists of female (XY) or male (XX) chromosomes. However, there are also people with diverse types of chromosomes (XXX, XO, XXY, etc.), hormones, and physical characteristics outside of the male/female binary, who are known as intersex. Persons with intersex characteristics face unique challenges to fit into the male/female binary, including genital mutilation without consent, body image issues, and restrictions to compete in sporting events, among others.

Gender identity, on the other hand, is our personal sense of how we feel, see, and identify as a boy/man, girl/woman, both, neither, or combination.

In 2015, research led by brain researcher Georg S. Kanz of the University Clinic for Psychiatry and Psychotherapy of the Medical University of Vienna demonstrated that the very personal gender identity of every human being is reflected and verifiable in the cross-links between brain regions. The report stated, “While the biological gender is usually manifested in the physical appearance, the individual gender identity is not immediately discernible and primarily established in the psyche of a human being.”

When a child is born, she/he/zie[1] is assigned a category based on their genitals. For example, a child with a vagina is assigned female/girl at birth, and subsequently expected to perform gender roles specific to that identity such as cooking, cleaning, and being submissive, among others; while those assigned male/boy at birth are expected to be strong, aggressive, protective and so on. However, these assignments and assumptions are not accurate all the time, as our genitals do not determine our gender. Sex and gender are two different categories, and determined by different components of our body.

People whose lived experiences match the sex and gender they were assigned at birth are known as cisgender, while people whose lived experiences do not match the sex and gender they were assigned at birth are known as transgender, genderqueer, genderfluid and others.

A study conducted in January 2015 of 32 transgender children aged between five and twelve, led by psychological scientist Kristina Olson of the University of Washington, found that “the gender identity of these children is deeply held and is not the result of confusion about gender identity or pretense.” The researchers noted that “our results support the notion that transgender children are not confused, delayed, showing gender-atypical responding, pretending, or oppositional – they instead show responses entirely typical and expected for children with their gender identity.”

The researchers found responses from transgender children were indistinguishable from those from cisgender children. The data from transgender girls showed the same pattern as the data from cisgender girls and the data from transgender boys showed the same pattern as the data from cisgender boys. For instance, transgender girls preferred to be friends with other girls and they tended to prefer toys and foods that other girls liked, just like cisgender girls.

Understanding gender dysphoria

In addition, the Diagnostic Statistical Manual (DSM) 5 explains gender dysphoria as something experienced by people whose gender assigned at birth differs from their lived experiences. The DSM-5 further provides recommendations to reduce stress and anxiety caused by inability to express their authentic gender identity.

The DSM-5 further rightly emphasizes that gender dysphoria is not a mental health disorder. Gender identity disorder (GID) was replaced with gender dysphoria in the latest DSM to avoid stigma and ensure access to care and support for people who do not identity with the gender assigned at birth based on their genitals.

Gender diversity throughout the history of humanity

Transgender and gender-diverse persons have always existed throughout the history of humanity. Michael Peletz in his book Gender Pluralism in South East Asia documents the existence of sida-sida, gender-diverse identities similar to present-day transgender persons, in the palaces of Negeri Sembilan, Kelantan, Johor, and other parts of the Peninsula Malaya and parts of Indonesia. Sida-sida resided in the inner chambers of the palace, and were ‘entrusted with the sacred regalia and the preservation of the ruler’s special powers’.

Further references to sida-sida can be found in the Hikayat Melayu, such as Hikayat Amer Hamzah. Professor Datuk Dr. Shamsul Amri Baharuddin, a Malaysian anthropologist, also provides a first-hand account of seeing sida-sida in a palace as a child, describing them as people who were assigned male at birth, who dressed and performed gender roles of women.

In Borneo, there are accounts of identities such as manang bali, basir, and balian are described as people who were assigned male at birth, who embodied female identity and performed gender roles performed by cisgender women. Basir, in Gender Pluralism in South East Asia, are described as someone who “dresses like a woman in private life as well, and parts their hair in the middle of their forehead just like a (cisgender) woman.” Manang bali, basir and balian were also ritual specialists, shamans and healers, among others.

Similar identities are seen through out the world – hijra in India; calabai, calalai and bissu in Indonesia; asog/bayugin in the Philippines; mukhannathun in Mecca and Medina; Fa’afafine in Samoa and New Zealand; Māhū in Hawai’I; two-spirit in North America, and more.

Changing attitudes

Given developments in the understanding of gender, many countries in Latin America, South Asia, Europe, North America and others have introduced gender recognition laws that allow transgender persons to change their name and gender markers in their legal documents without medical interventions or surgeries. The process is envisioned to be ”quick, transparent and accessible” gender recognition procedures, based on self-determination. The Gender Identity, Gender Expression and Sex Characteristics Act in Malta, for example, requires a simple declaration based on a person’s self-determination procedure before a notary, and prohibits requests for medical information. The entire process does not exceed 30 days.

Reality in Malaysia

Discrimination and violence towards transgender persons is a phenomenon that began in the 80s. Prior to that time, transgender persons enjoyed some rights, including being able to change their name and gender identity in their legal documents, namely identification cards, based on operative status.

All 14 states in Malaysia have laws that criminalize transgender women based on gender identity and gender expression, while three states have laws that prohibit female persons who pose as men or wear men’s attire in a public place for immoral purposes. These laws were introduced between 1985 and 2012.

Prior to the fatwa in 1983, which prohibited gender affirmation surgeries for trans people, local doctors provided the surgeries in University Hospital. Consequently, transgender persons were no longer able to change their name and gender marker in their legal documents. The laws and fatwa introduced in the 80s further deteriorated access to fundamental human rights, including education, employment, healthcare and housing, and further marginalized the transgender community.

It is time for people to understand that trans persons are normal, and are not in any shape or form pretending, cross dressing, going though a phase, or uncertain of their gender identity. Transgender persons are merely expressing themselves, like cisgender persons.

The lack of understanding of sex and gender has caused stigma, discrimination, violence and barriers to people being their authentic selves. Thus, it is imperative for people to educate themselves and each other about the basic concepts of sex and gender guided by lived experiences of people and evidence-based approaches.

[1] Gender-neutral pronoun. Other gender-neutral pronouns include they/their

rest in power Aleesha Farhana

4 years ago on 30th July 2011, Aleesha Farhana died of a heart attack and depression following a painful legal battle to just to be herself. rest in power Aleesha 🙂

“One of the bravest young women I will never know passed away in conditions of extreme physical distress and unimaginable mental anguish at approximately 5am on July the 30th, 2011. Her name was Aleesha Farhana.

Buoyed by the sanction of State, Religious Authority and Community, she was buried in a grave that will carry the wrong name; a name not hers by choice, because she was one of the few people on the planet that get to choose their own name to reflect the reality of their being. Aleesha had chosen to be a woman: the woman that she knew herself to be.” Omar Salahuddin, 31 July 2011, malaysian insider
http://www.themalaysianinsider.com/sideviews/article/a-word-not-often-used-omar-salahuddin/
http://www.loyarburok.com/2011/08/01/court-aleesha-farhana-change-gender/

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