Access to Gender Recognition and Sex Reassignment Surgery

Gender Recognition

Transgender Malaysians have found that it is virtually impossible to change the sex marker on their identity cards (IC). There is no law that explicitly prohibits gender recognition for trans people, but almost all transgender people who are known to have approached the National Registration Department to request such changes have been rejected. A deputy minister in the Prime Minister’s Office told parliament in 2012 that such changes are not permitted even for those who have had sex reassignment surgery.[162] Nor can transgender people change the names on their identity cards. According to longtime transgender activist Khartini Slamah, name changes were permitted until 1996, when a stricter policy came into place:

A transsexual undergoing a sex change can add a new name to the birth name, resulting in two names on the identity card: one male and one female. According to the Registry Department, which issues identity cards, this measure is needed to ensure that mak nyahs do not marry men, since Islam forbids sex or marriage between men, and even mak nyahs who have had sex change operations are considered men.[163]

Courts have issued conflicting opinions as to whether individuals who have undergone SRS can be administratively recognized according to their chosen gender. In the first case, Wong Chiou Yong (P) v. Pendaftar Besar/Ketua Penarah Japatan Pendaftaran Negara (2004), involving a transgender man who sought to change his official sex to male after undergoing sex reassignment surgery, the Ipoh High Court ruled that “a positive decision in response to this application would conflict with the spirit and intention of the legislature expressed in [the Births and Death Registration Act 1957 and the National Registration Act 1957],” neither of which make any provisions for gender changes except in the case of an “error” in the stated gender on the birth certificate. The bench determined that this was a matter for par­liament rather than the courts, while noting that transsexuals would indeed benefit from laws allowing for gender recognition.[164]

However, J.G. v. Pengarah Jabatan Pendaftaran Negara (2005), heard the following year in the Kuala Lumpur High Court, yielded an outcome in favor of the petitioner, a transgender woman who had also undergone SRS. The judge found:

[I]n this instant case, the medical men have spoken: the plaintiff is FEMALE. They have considered the sex change of the plaintiff as well as her psychological aspect. She feels like a woman, lives like one, behaves as one, has her physical body attuned to one, and most important of all, her psychological thinking is that of a woman. … the defendant [the state] is empowered by law under s 6(2)(o) of the National Registration Act 1959 to make a correction and alteration in the register and identity card. [165]

But in 2011, the Terenganu High Court rejected a similar application by Aleesha Farhana, a 25-year-old transgender woman who had undergone SRS. Aleesha died 12 days later of a heart attack, which doctors said was brought on in part by depression.[166]

In the interim, the National Registry has continued to deny transgender applicants the right to change their identity cards, infringing upon their rights to non-discrimination and freedom of expression. Sharan, a Hindu transgender woman who has undergone sex reassignment surgery in Thailand, petitioned the National Registry to change her name and gender on her IC, but she received a letter of rejection, which provided no explanation for the decision. According to Sharan, Hinduism not only validates the existence of transsexuals, but, according to one interpretation, calls on the followers of one deity to undergo castration as a religious duty.[167] She said: “The federal constitution provides for [religious freedom]—so as a Hindu transgender, these are our rights.”[168]

Sex Reassignment Surgery

Around 1980, a team of doctors and psychologists at the public University of Malaya Hospital began performing sex reassignment surgery on transgender people. Dr. Khairuddin Yusuf, one of the physicians on the team, recalls having performed SRS on at least six transgender patients. When Khairuddin and his colleagues realized that their post-operative patients were having difficulties finding jobs because their bodies no longer matched the sex listed on their identity cards, they successfully lobbied the National Registry Department to change their patients’ sex markers. Then, he said,

The [National] Fatwa Council heard about it. They expressed concern. We explained the science behind it to them. … Our languages were totally different. They didn’t get the language of science. I understood what Galileo was facing. Science challenges conventional wisdom. I was explaining the importance of transgender people getting jobs, that we have to help our patients. They did not explain their reasoning. … [Our reasoning] was not accepted, so I closed the services. [169]

The fatwa issued by the National Fatwa Council in 1982 against sex reassignment surgery is not legally binding because it was not gazetted by any state. This means there is technically no legal barrier to SRS in Malaysia.[170] However, few hospitals have performed the surgeries since 1982. In one case that appears to be exceptional, Wong Chiou Yong, the applicant in the court case discussed above, apparently did undergo SRS in 2002 in Penang.[171] None of the transgender people interviewed by Human Rights Watch knew of any hospitals that would currently perform such surgeries.

Because no facilities currently perform SRS in Malaysia, transgender people who wish to undergo SRS must travel abroad. Many of those Human Rights Watch interviewed had undergone the surgery in Thailand, or were planning to do so. However, many found the cost prohibitive. Those who go to Thailand for SRS generally do not receive any counseling before or after the operation, whereas when SRS was carried out in Malaysia before 1982, trans people who elected to undergo SRS also received counseling.[172]