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Court says no to IC amendment after sex change

 | January 5, 2017

Appellate court overturns High Court decision and says National Registration Department need not amend IC of sex change person.


PUTRAJAYA: The Court of Appeal today allowed the government’s appeal to reverse a High Court directive to change particulars in the identity card of a woman who went for a sex change.

A three-man bench led by Zakaria Sam said there was merit in the appeal brought by the National Registration Department director-general.

“Having read the submissions and holding discussions among us, we find there is merit in the appeal,” Zakaria said of the unanimous ruling, adding that the bench would provide its written grounds later.

ABC, 30, who went for a gender re-assignment surgery in Thailand in 2009, had applied to the department to make amendments to his name and the last digit of his MyKad to reflect the male gender.

High Court judge S Nantha Balan on July 18 last year allowed ABC’s, declaration that he was now a man.

“The plaintiff (ABC) has a precious constitutional right to life under Article 5(1) of the Federal Constitution and the concept of ‘life’ must necessarily encompass the right to live with dignity as a male and be legally accorded judicial recognition,” Nantha Balan said, in his written grounds.

The judge disapproved the department’s argument that a person who has sought the change of gender might later seek a restoration.

“I find that it is not just far-fetched, but is also reflective of an alarmist mindset”, he added.

The judge said ABC who was born a female, had grown up behaving and living like a male.

He said ABC underwent gender re-assignment surgery and obtained the validation of the medical profession that he is a male person and has satisfied the threshold that was set out in a previous local case law.

He dismissed the department’s suggestion that there would be confusion if the order was allowed.

Nantha Balan went on to say that recognising ABCs reassigned gender would only contribute to certainty and avoid conflict, for example, if ABC was compelled to use the female washroom.

“It all boils down to the quality and persuasiveness of the medical and psychiatric evidence and factual matrix that is presented to the court as the application for a declaration must be for genuine reasons and not for spurious or suspicious reasons.

“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 chromosome will remain static throughout the individual’s natural life. To insist on the chromosomal requirement is to ask for the impossible, he added.

Before the Court of Appeal today, Senior Federal counsel Mohamad Rizal Fadzil told the bench that ABC did not provide a comprehensive medical report on his chromosome after the sex change.

Scientifically, XY chromosome is determined as male while XX is for female.

“In this case ABC did not provide a medical report on his chromosome after the operation,” he said.

ABC had only provided proof of physical condition like presence of male sexual organ and psychological factors.

Counsel William Lim , who appeared for ABC, urged the bench to uphold the finding of the High Court.

However, they broke for recess in the midst of his submission only to return to deliver their verdict.


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