The Court of Appeal today allowed the appeal by the National Registration Department, which had been compelled by the High Court in Kuala Lumpur to change the name and final digit of a transgender person to reflect that she had undergone a sex change to become a man.
The three-member bench was chaired by Justice Zakaria Sam, who said that the court had made a unanimous decision.
“We have read the submission and after in-depth discussion we see there is merit to grant this appeal (by the NRD).
“The court is allowing the appeal and is setting aside the High Court order,” Justice Zakaria said.
He sat with Justice Ahmadi Asnawi and Justice Hasnah Mohamed Hashim.
Senior federal counsel Shamsul Bolhassan and Mohamad Rizal Fadzil told the bench that the respondent had failed to provide medical evidence of a chromosome change which determines the sex of a person.
They said that in the case of Corbett vs Corbett, the person was required to show medical evidence of the changes in chromosomal, gonadal, genitals and psychological factors.
The plaintiff (Malaysiakini is withholding the name), who named the director-general of the NRD as the respondent in her original application, was born a female 30 years ago but behaved like a man and underwent a sex change operation in Thailand in 2009.
She gave medical records to prove she underwent the sex change procedure and supporting psychiatrist and other medical records to show this, except for the chromosomal finding.
Last year, the High Court granted her declaratory relief that she had undergone a gender re-assignment and ordered the NRD to grant a change of name and change the last digit of her IC. It also made no order as to costs.
Her counsel, William Lim, said the client's application would not open floodgates.
In granting the transgender a change of her sex listing in the IC, High Court judge Justice S Nantha Balan said the applicant 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Justice Nantha Balan also ruled the chromosomal requirement to be outdated.
“In my view, the chromosomal requirement is archaic and should be discarded because scientifically, it is impossible for a biological male to have female chromosomes and vice-versa.
“The male XY and female XX chromosomes will remain static throughout the individual’s natural life. To insist on the chromosomal requirement is to ask for the impossible,” the judge added.- Mkini