Procedural Posture
The plaintiff filed a petition to be legally recognised as female and to have the last digit in her identity card changed to indicate the female gender.
Facts
The plaintiff was registered as male at birth. She identified with the female gender and in 1996 she had gender reassignment surgery in Thailand. Upon returning to Malaysia, she applied for a name change, which was granted, and she was given a new identity card. However the plaintiff’s identity number continued to have an odd number as the final digit, indicating the male gender. The plaintiff wanted to marry a man and was concerned that the number on her identity card would prevent her marriage.
Issue
Whether the plaintiff could be legally recognised as female by the Court and could have the last number on her identity card changed from an odd number to an even number to indicate the female gender.
Domestic Law
Wong Chiou Yong v. Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara, High Court of Ipoh, 2005 (upholding a decision of the National Registration Department refusing to amend or change the birth certificate and national registration identity card of the plaintiff, a transgender man).
Comparative Law
Corbett v. Corbett (Otherwise Ashley), Probate, Divorce and Admiralty Division, United Kingdom, 1970 (holding that sex was biologically fixed at birth and could not be changed by medical or surgical means).
Bellinger v. Bellinger, England and Wales Court of Appeal, Civil Division, 2001 (determining that sex was based on biological factors; dissent of Lord Justice Thorpe).
Bellinger v. Bellinger, House of Lords, United Kingdom, 2003 (criticising Corbett v. Corbett but holding that the question of gender recognition should be left to the legislature).
Attorney General v. Kevin and Jennifer, Full Court of the Family Court of Australia at Sydney, 2003 (declining to follow Corbett; taking the view that psychological factors take precedence over biological ones, and stating “where a person’s gender identification differs from his or her biological sex, the [psychological] 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”).
Reasoning of the Court
The plaintiff presented the testimony of three doctors certifying that she was both mentally and physically a female. The Court began by acknowledging a recent decision, Wong Chiou Yong, on the same issue in a different domestic jurisdiction, which had closely followed the Corbett view of sex as immutably fixed at birth and had rejected that applicant’s petition for a change of identity documents. The High Court of Kuala Lumpur, however, held that Corbett was not controlling and that it would follow Kevin & Jennifer, which held that the psychological status of the individual was dispositive in determining gender. It also quoted the dissent in the Court of Appeal case of Bellinger v. Bellinger, where in dissent Lord Justice Thorpe had emphasised the importance of psychological factors in assessing gender.
The Court observed that ultimately the issue needed to be addressed by Parliament and should be informed by expert medical evidence. Until Parliament acted, however, the determination was for the courts. In the cases that followed Corbett, courts “had expressed sympathy with the victim trapped in such predicament and regretted they could not assist”. In this case, stated the Court, when medical evidence has established that the gender of the plaintiff was other than the biological sex, it was the duty of the Court to grant relief. The Court emphasised that “the medical men have spoken: the plaintiff is FEMALE”.
The Court held that, in the absence of legislative guidance, the courts should listen to medical experts to determine gender. Here, doctors had examined both the physical and psychological status of the plaintiff, and found that she was female. The plaintiff was granted relief.
JG v. Pengarah Jabatan Pendaftaran Negara, High Court of Kuala Lumpur, Malaysia (full text of judgment, PDF)
