370 Malayan Law Journal [2016] 12 MLJ

Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara A

HIGH COURT (KUALA LUMPUR) — ORIGINATING SUMMONS NO

24NCVC-1306–08 OF 2015
S NANTHA BALAN J B
18 JULY 2016

Civil Procedure — Declaration — Application for — Plaintiff born as female

sought declaration that he was male follow sex-change operation — Plaintiff C
sought orders to direct National Registration Department (‘NRD’) to change
particulars in his identity card to show he was male — Whether application
genuine and satisfied criteria for its grant — Whether court had power to direct
NRD to change plaintiff ’s gender in his identity card
D
The plaintiff (‘Tan’), who was born a female but later underwent gender
reassignment surgery, asked the High Court in the instant application to
declare that ‘he’ was now legally a male and to direct the defendant to change
his name in his National Registration Identity Card (‘NRIC’) to ‘Tan Yien E
How’ and alter the last digit in the NRIC to a digit that showed he was male.
From a very young age, Tan felt like a man trapped in a woman’s body. He had
all the while behaved like a man, dressed as one and grew up longing to become
a man. When he was 22 years old, Tan underwent surgery at a medical
institution in Thailand to remove his abnormal female genitalia and replace F
them with male genitalia. He subsequently became romantically involved with
a woman whom he planned to marry. In support of his instant application, Tan
tendered the reports of six medical specialists who had examined him and
found that physically and psychologically he was male and that he did not have
any internal or external female organs. The defendant did not dispute the G
conclusions and opinions of those specialists nor did it produce any expert
medical opinion of its own in rebuttal. The defendant, however, said the
application should be dismissed, inter alia, on the ground there was no
evidence to show a mistake in fact or substance had occurred in the description
of Tan’s gender in his certificate of birth and thereafter in his NRIC. The gender H
reassignment surgery that Tan underwent could not affect the status of his
gender at the time of his birth. The defendant said there was no legislation that
enabled a person’s gender in his birth certificate or NRIC to be
altered/amended simply because the person had undergone a ‘sex change’
operation as the only relevant legislation in s 27(3) of the Births and Deaths I
Registration Act 1957 and s 6(2) of the National Registration Act 1959
permitted amendments to, respectively, the birth register and the NRIC, only
if an error of fact or substance in the initial registration of the sex of the person
concerned had occurred, which was not the case here.
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 371

A Held, allowing the application:

(1) On the facts and circumstances, the plaintiff, who was born as a female
and grew up behaving and living like a male and underwent gender
reassignment surgery and had obtained validation of the medical
B profession that he was a man, had in the court’s view satisfied the
threshold or criteria that was set out in Kristie Chan v Ketua Pengarah
Jabatan Pendaftaran Negara [2012] MLJU 1755; [2013] 4 CLJ 627
(‘Kristie Chan’s case’) for the application to be allowed (see para 71).
(2) It all boiled down to the quality and persuasiveness of the medical and
C psychiatric evidence and the factual matrix that was presented to the
court as the application for a declaration had to be for genuine reasons
and not for spurious or suspicious reasons. The plaintiff ’s application was
a genuine one by a person who had been certified by the medical
profession to be physically, anatomically and psychologically a male. It
D only remained for the legal process to declare that he was a male. A
declaration to recognise the plaintiff ’s reassigned gender would
contribute to certainty and avoid confusion and quite possibly conflict as
well. The plaintiff had a constitutional right to life under art 5(1) of the
Federal Constitution and the concept of ‘life’ thereunder necessarily
E encompassed the plaintiff ’s right to live with dignity as a male and be
legally accorded judicial recognition as a male (see paras 64, 66 & 72).
(3) There was no legal impediment or restriction to the grant of a declaration
to legally recognise the plaintiff as a male person and for his NRIC to be
F changed to reflect the change in gender so that he would be able to live as
a male and be accepted by society as one. No doubt certain theological or
other quarters might decry such curial recognition as an interference with
the gender of a person that was determined at birth by nature. But such
a line of thinking stemmed from the old or orthodox school which held
G the view that the gender which was determined at birth was fossilised and
was incapable of change or reassignment (see para 68).
(4) The Court of Appeal (‘COA’) in Kristie Chan’s case did not lay down any
inflexible rule that the applicant seeking a declaration for change of
gender as a result of gender reassignment surgery must establish, inter
H alia, the chromosomal requirement. It was clear that in Kristie Chan’s
case, the COA was not satisfied with the quality of the medical and
psychiatric evidence that was produced. The chromosomal requirement
was archaic and had to be discarded because scientifically it was
impossible for a biological male to have female chromosomes and vice
I versa. The male XY and female XX chromosomes would remain static
throughout an individual’s natural life. Hence, it was naive to suggest that
an applicant had to show that he or she had the chromosome of the
reassigned sex. To insist on that requirement was to ask for the impossible
(see paras 54, 61 & 64).
372 Malayan Law Journal [2016] 12 MLJ

[Bahasa Malaysia summary A

Plaintif (‘Tan’), yang dilahirkan sebagai perempuan tetapi kemudian menjalani
pembedahan pertukaran jantina, meminta Mahkamah Tinggi dalam
permohonan ini untuk mengisytiharkan bahawa ‘he’ adalah sekarang lelaki
secara sah dan mengarahkan defendan untuk menukar namanya di dalam kad
B
pengenalan (‘KP’) kepada ‘Tan Yien How’ dan menukar digit akhir di dalam
KP yang menunjukkan dia adalah lelaki. Sejak dari kecil lagi, Tan merasakan
seperti lelaki yang terperangkap di dalam badan perempuan. Dia telah selama
ini berkelakuan seperti lelaki, berpakaian seperti seorang dan membesar
dengan keinginan menjadi seorang lelaki. Apabila dia berumur 22 tahun, Tan C
menjalani pembedahan di institusi perubatan di Thailand untuk membuang
alat kelamin perempuan yang tidak normal dan menggantikannya dengan alat
kelamin lelaki. Seterusnya, dia terlibat dalam perhubungan percintaan dengan
wanita yang dia merancang untuk berkahwin. Dalam menyokong
permohonannya ini, Tan mengemukakan laporan enam pakar perubatan yang D
telah memeriksanya dan mendapati bahawa dia secara fizikal dan psikologi
adalah lelaki dan dia tidak mempunyai apa-apa organ dalaman atau luaran
wanita. Defendan tidak mempertikaikan keputusan dan pendapat pakar-pakar
dan tidak juga ia mengemukakan apa-apa pendapat pakar perubatan yang
tersendiri dalam bantahan. Defendan, walau bagaimanapun, mengatakan E
permohonan sepatutnya ditolak, antara lain, atas alasan tiada keterangan
untuk menunjukkan kesilapan dalam fakta atau bahan telah terjadi dalam
keterangan jantina Tan dalam sijil kelahirannya dan selepas itu dalam kad
pengenalannya. Pembedahan pertukaran jantina yang dijalankan Tan tidak
boleh menjejaskan status jantina pada waktu kelahirannya. Defendan F
mengatakan bahawa tiada undang-undang yang membolehkan jantina
seseorang dalam sijil kelahirannya atau KP ditukar/dipinda semata-mata
kerana seseorang telah menjalani satu pembedahan ‘pertukaran jantina’ sebagai
satu-satunya undang-undang yang berkaitan dalam s 27(3) Akta Pendaftaran
G
Kelahiran dan Kematian 1957 dan s 6(2) Akta Pendaftaran Negara 1959
membenarkan pindaan kepada, masing-masing, pendaftaran kelahiran dan
KP, hanya jika satu kesilapan fakta atau bahan dalam permulaan pendaftaran
jantina seseorang itu telah berlaku, yang mana bukan kes di sini.
H
Diputuskan, membenarkan permohonan:
(1) Pada fakta dan keadaan, plaintif, yang dilahirkan perempuan dan
membesar berkelakuan dan hidup sebagai seorang lelaki dan melalui
pembedahan pertukaran jantina dan telah memperolehi pengesahan
daripada profesion perubatan bahawa dia adalah lelaki, telah dalam I
pandangan mahkamah memuaskan ambang atau kriteria yang
dinyatakan dalam kes Kristie Chan v Ketua Pengarah Jabatan Pendaftaran
Negara [2012] MLJU 1755; [2013] 4 CLJ 627 (kes Kristie Chan) untuk
permohonan dibenarkan (lihat perenggan 71).
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 373

A (2) Itu semua bergantung kepada kualiti dan keyakinan keterangan

perubatan dan psikiatrik dan fakta matriks yang dikemukakan ke
mahkamah sebagai permohonan untuk perisytiharan harus atas sebab
yang tulen dan bukan untuk sebab yang palsu atau mencurigakan.
Permohonan plaintif adalah tulen oleh seseorang yang telah disahkan
B oleh profesion perubatan sebagai lelaki secara fizikal, anatomi dan
psikologi. Yang tinggal hanya untuk proses undang-undang untuk
mengisytiharkan bahawa dia adalah lelaki. Satu pengisytiharan untuk
mengakui pertukaran jantina plaintif akan menyumbang kepada
kepastian dan mencegah kekeliruan dan kemungkinan juga konflik.
C
Plaintif mempunyai hak perlembagaan untuk hidup di bawah perkara
5(1) Perlembagaan Persekutuan dan konsep ‘life’ di bawahnya
semestinya merangkumi hak plaintif untuk hidup dengan maruah
sebagai seorang lelaki dan secara sah diberi pengiktirafan kehakiman
D sebagai seorang lelaki (lihat perenggan 64, 66 & 72).
(3) Tiada halangan atau sekatan undang-undang dengan pemberian
perisytiharan untuk mengiktiraf plaintif secara sah sebagai seorang lelaki
dan untuk KP nya ditukar untuk mencerminkan pertukaran dalam
jantina supaya dia akan dapat hidup sebagai seorang lelaki dan diterima
E oleh masyarakat sebagai satu. Tidak syak lagi teologi tertentu atau
lain-lain pihak mungkin mengutuk pengiktirafan kurial seperti
gangguan dengan jantina seseorang itu ditentukan ketika lahir secara
semula jadi. Tetapi garis pemikiran yang berpunca dari golongan lama
atau ortodoks yang memegang pandangan bahawa jantina yang
F
ditentukan pada kelahiran adalah fosil dan tidak mampu mengubah atau
menukar semula (lihat perenggan 68).
(4) Mahkamah Rayuan (MR) dalam kes Kristie Chan bukan sahaja tidak
meletakkan apa-apa kaedah yang tidak fleksibel bahawa pemohon
G memohon pengisytiharan untuk perubahan jantina akibat pembedahan
pertukaran jantina mesti dibuktikan, antara lain, keperluan kromosom.
Adalah jelas dalam kes Kristie Chan, MR tidak berpuas hati dengan
kualiti keterangan perubatan dan psikiatrik yang dikemukakan.
Keperluan kromosom adalah kuno dan perlu diabaikan kerana secara
H saintifik adalah mustahil untuk lelaki biologi untuk mempunyai
kromosom perempuan dan sebaliknya. Kromosom lelaki XY dan
perempuan XX akan kekal statik sepanjang kehidupan semula jadi
individu. Maka, ia adalah naif untuk mencadangkan bahawa pemohon
perlu menunjukkan bahawa dia lelaki atau perempuan mempunyai
I kromosom jantina yang ditukarkan (lihat perenggan 54, 61 & 64).]

Notes
For cases on application for declaration, see 2(2) Mallal’s Digest (5th Ed, 2015)
paras 2956–2997.
374 Malayan Law Journal [2016] 12 MLJ

Cases referred to A
A v Chief Constable of West Yorkshire Police and another [2004] 2 FCR 160, HL
(refd)
Attorney-General For The Commonwealth v Kevin and Others [2003] FamCA 94
(folld)
B
Bellinger v Bellinger [2003] UKHL 21; [2003] 2 WLR 1174; [2003] 2 AC
467, HC (refd)
Corbett v Corbett (otherwise Ashley) [1970] 2 All ER 33 (refd)
Datuk Syed Kechik bin Syed Mohamed v Government of Malaysia & Anor [1979]
2 MLJ 101, FC (refd) C
Fau En Ji v Ketua Pengarah Jabatan Pendaftaran Negara [2015] 1 CLJ
803; [2014] 1 MLRHU 1097, HC (refd)
Goodwin v United Kingdom [2002] 2 FCR 577 (refd)
Hamalainen v Finland [2015] 1 FCR 379 (refd)
Ikebife Ibeneweka and others v Peter Egbuna and another [1964] 1 WLR 219, PC D
(refd)
JG, JG v Pengarah Jabatan Pendaftaran Negara, Re [2006] 1 MLJ 90, HC (refd)
Kristie Chan v Ketua Pengarah Jabatan Pendaftaran Negara [2012] MLJU
1755; [2013] 4 CLJ 627, CA (folld)
R v Tan and others [1983] 2 All ER 12, CA (refd) E
Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211; [1966] LNS
187; [1966] 1 MLRH 288, FC (refd)
Tan Sri Haji Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177, FC (refd)
Wong Chiou Yong (P) v Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran
Negara [2005] 1 MLJ 551; [2005] 1 CLJ 622; [2004] 3 MLRH 127, HC F
(refd)

Legislation referred to
Birth and Death Registration Act 1957 s 27(3)
G
Federal Constitution art 5(1)
Gender Recognition Act 2004 [UK]
National Registration Act 1959 s 6, 6(2)
National Registration Regulations 1990 reg 14
Rules of Court 2012 O 53 r 2(2) H
Sexual Offences Act 1965 [UK]
Specific Relief Act 1950 s 41
William Lim (Muhammad Izzat bin Md Jonid with him) (Tan Aik Kiong & Co)
for the plaintiff. I
Mohamad Rizal bin Fadzil (Senior Federal Counsel, Attorney General’s
Chambers) for the defendant.
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 375

A S Nantha Balan J:

INTRODUCTION

[1] These are my grounds in respect of an application by way of an

B originating summons dated 24 August 2015. In this case the plaintiff who was
born as a woman, has undergone gender reassignment surgery and now seeks to
obtain a declaration that ‘he’ is legally a male and for consequential orders to
direct the Director General of the National Registration Department of
Malaysia to recognise and give effect to such declaration. For convenience and
C to avoid confusion, I shall refer to the plaintiff by the masculine gender rather
than the feminine gender.

[2] I should state at the outset that this area of the law in Malaysia and other
D jurisdictions is not quite settled. Judicial opinion has been divided. In some
cases, the courts have rejected the attempt to obtain curial recognition of
gender reassignment on the ground, inter alia, that the person seeking a
declaration was not able to satisfy the ‘chromosomal’ requirement for the
particular gender. See: (a) Wong Chiou Yong (P) v Pendaftar Besar/Ketua
E Pengarah Jabatan Pendaftaran Negara [2005] 1 MLJ 551 HC; [2005] 1 CLJ
622; [2004] 3 MLRH 127; (b) Fau En Ji v Ketua Pengarah Jabatan Pendaftaran
Negara [2015] 1 CLJ 803; [2014] 1 MLRHU 1097; (c) Bellinger v
Bellinger [2003] UKHL 21; [2003] 2 WLR 1174; [2003] 2 AC 467; and (d)
Corbett v Corbett (otherwise Ashley) [1970] 2 All ER 33. But that has not always
F been the case. See: Re JG, JG v Pengarah Jabatan Pendaftaran Negara [2006] 1
MLJ 90 (HC) where the High Court declined to follow the chromosomal
requirement as a criteria for determination of gender post gender reassignment
surgery.

G [3] Hence, the question presently is, inter alia, whether this court should
follow the one or the other approach and either grant the declaration that is
sought or reject it, inter alia, on the basis that the plaintiff does not have male
chromosomes. As stated earlier, the plaintiff was biologically and genetically
born as a female and so will not carry the male chromosomes. I shall return to
H this point later in this judgment. I now turn to deal with the background facts.

BACKGROUND FACTS

[4] The plaintiff was born on 7 April 1987 as a female. The plaintiff is
I presently 29 years old. According to the narrative, from a young age, the
plaintiff behaved like a male and dressed up like a male and grew up hoping and
wanting to become a man. To this end, the plaintiff has exhibited various
photographs which were taken when he was growing up. The photographs are
found in exh A2 encl 2 and they show quite clearly that the plaintiff, although
376 Malayan Law Journal [2016] 12 MLJ

born as a female, exhibited male characteristics and was a ‘male trapped in a A

female body’. Medically, the plaintiff was diagnosed as ‘a naturally occurring
transsexual with gender-identity as male’.

[5] Eventually, the plaintiff took the ultimate step in becoming a male and
in October 2009, the plaintiff had successfully undergone gender reassignment B
surgery at a medical institution known as the Preecha Aesthetic Institute (‘the
Institute’) in Thailand. The Institute is said to be a prominent medical
institution for gender reassignment surgery. The credentials of the Institute and
that of its founder, Dr Preecha Tiewtranon are seen in exh A11 annexed to
C
encl 6. It is quite obvious from the literature that was exhibited that Dr Preecha
and the Institute is/are internationally renowned for gender reassignment
surgery. After the gender reassignment surgery, the plaintiff had also undergone
various psychological assessments and medical examinations by specialist
medical practitioners in Malaysia, who have given opinions supporting the D
conclusion that from a medical perspective, the plaintiff is physically,
anatomically and mentally a male.

[6] The plaintiff ’s current status is that he has been living his life as a man
and is currently involved in a relationship with one Miss Foong Kar Wai. The E
relationship has been ongoing for about for about 2 1/2 years. They plan to get
married sometime in the future. Both Miss Foong Kar Wai and the plaintiff ’s
mother, Mdm Tang Bee Yin have filed affidavits to support the plaintiff ’s
application herein.
F
[7] The plaintiff has exhibited photographs which were taken after the
gender reassignment surgery (see exh A8 encl 2). Based on my own ocular
inspection of the photographs, it is clear that for all outward appearances, the
plaintiff looks like and has all the physical features and characteristics of a G
robust male person.

[8] Hence, the issue now is whether a declaration may be granted by this
court to declare the plaintiff as a male. In so far as the medical reports are
concerned, senior federal counsel who appeared for the defendant had initially H
indicated that he wished to cross-examine the medical specialists who had
examined the plaintiff and given their respective reports with regards to the
plaintiff ’s status from a medical perspective.

[9] However, the defendant later abandoned the proposal to cross-examine I

the plaintiff ’s medical specialists and there is no suggestion by the defendant
that the opinion of the medical specialists are in any way flawed or erroneous.
Indeed, in his submissions, the learned senior federal counsel did not make any
suggestion that he was in any way impugning the conclusions and opinions of
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 377

A the medical specialists. The defendant also did not produce any expert medical
opinion of their own to rebut the plaintiff ’s medical reports.

[10] As such, it is deemed that the opinions and conclusions of the plaintiff ’s
medical specialists are true, accurate and credible. The medical reports which
B the plaintiff relies on are as follows:
(a) Dr Preecha Tiewtranon (plastic surgeon) report dated 26 October 2009
(see exh A3 encl 2 );
(b) Shanthini R Vanniasingham (chartered clinical psychologist) report
C
dated 5 May 2010 (see exh A4 encl 2);
(c) Assoc Prof Dr Stephen T Jambunathan (consultant psychiatrist) reports
dated 20 October 2011, 15 September 2013 and 15 October 2013 (see
exh A5 encl 2);
D
(d) Dr Tan Ee Ping (consultant obstetrician and gynaecologist) report dated
24 July 2012 (see exh A6 encl 2);
(e) Assoc Prof Dr Khong Su Yen (consultant gynaecologist) report dated 8
April 2013 (see exh A7 encl 2); and
E
(f) Prof Datin Dr Sazilah Ahmad Sarji (radiologist) report dated 8 April
2013 (part of exh A7 encl 2).

[11] I will now summarise the submissions that were made on behalf of the
F plaintiff.

SUBMISSIONS MADE ON BEHALF OF THE PLAINTIFF

[12] Counsel for the plaintiff started by referring to the decision of the Court
G of Appeal in Kristie Chan v Ketua Pengarah Jabatan Pendaftaran Negara [2012]
MLJU 1755; [2013] 4 CLJ 627 (Kristie Chan), where it was held that an
applicant who seeks to obtain a declaration for change of gender is required to
adduce evidence from experts in Malaysia on the following:
H (a) what is gender;
(b) what makes a person a male or female;
(c) whether sex reassignment surgery changes a person’s gender to warrant a
change of the gender description in that person’s identity card.
I
[13] In so far as the psychological aspects of the plaintiff ’s gender are
concerned, evidence was adduced through the opinion of Assoc Prof Dr
Stephen T Jambunathan, a senior consultant psychiatrist in University Malaya
Medical Centre who deposed in his affidavit and his medical reports that:
378 Malayan Law Journal [2016] 12 MLJ

(a) The Plaintiff had performed a sex reassignment surgery to change his A
genitalia to those of a male. In this regard, an ultrasound of the Plaintiff ’s
abdomen and pelvis was done on 8/4/2013 and it showed no evidence of
ovaries nor uterus — paragraph 7(a);
(b) Gender also depends on other factors, such as one’s lifestyle and
psychological condition. In the case of the Plaintiff, the Plaintiff ’s lifestyle, B
values, conduct and behavior are consistent with the social and cultural
norms of a male’ — paragraph 7(b);
(c) … the Plaintiff has been functioning as a male since pre-pubescence age,
and that the Plaintiff is well adjusted and functional in the role as male in
C
gender — paragraph 5;
(d) … the Plaintiff has been feeling like a male consistently from the age of 6
years, and has been living the lifestyle of a male since then. The condition
and gender preference of the Plaintiff is from birth, and is not an acquired
sexual orientation. Moreover, the Plaintiff was also born with an abnormal D
female genitalia of an extraordinarily long clitoris (clitoris is a small and
elongated erectile organ situated at the anterior portion of the vulva. It’s
homologous with the penis) — paragraph 7(c);
(e) I therefore conclude that the Plaintiff is, in my professional opinion and by
all psychological parameters, a male by gender — paragraph 7(d); E
(f) Based on my assessment, I support the above named person’s application
to update the national identification card gender label accordingly — 1st
page of Exhibit B-1.

[14] In the medical report of Associate Professor Dr Khong Su Yen F

(consultant gynaecologist at the University Malaya Specialist Centre), dated
8 April 2013 it was stated that:
Tan Pooi Yee was born on 7th April 1987 as a female but has since undergone Sex
Reassignment Surgery on 13th October 2009. This patient has since been functioning
normally as a male in his daily life. G
On physical examination, there was no evidence of female characteristics such as breast
tissue or vagina. I noted the presence of a penis with urethral opening consistent with
male anatomy. Ultrasonography performed today by consultant radiologist,
Professor Sazilah, confirms no evidence of uterus or ovaries.
H
Based on my assessment, I support the above named person’s application to update
the national identification card gender label.

[15] For the anatomical perspective and in order to demonstrate that the
plaintiff did not possess any female organs, reference was made to a radiological I
report dated 8 April 2013 from Professor Datin Dr Sazilah bt Ahmad Sarji
(radiologist in University of Malaya Specialist Centre) who opined that a
radiological examination of the plaintiff showed that there was:
No uterus or ovaries seen in pelvic region.
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 379

A ...
1. No sonographic evidence of ovaries and uterus.
2. ... This may represent a stent for reconstruction of male urethra.

B [16] Reference was a also made to medical statement dated 24 July 2012
from Dr Tan Ee Ping (Consultant Obstetrician and Gynaecologist in Pantai
Hospital Ampang), who gave the following opinion:
... The patient is physically not female, as there is no breast
tissue/uterus/ovaries/vagina. Noted to have a penis and scrotum. Therefore, this
C
patient is anatomically more male. There are no features of female anatomy.

[17] Ms Shantini R Vanniasingham (chartered clinical psychologist at Sime

Darby Medical Centre, Subang Jaya) in her medical report dated 5 May 2010
D said:
I found him to be emotionally stable and visibly comfortable with the gender
change. He is currently in a relationship and receives a considerable amount of
support from his partner as well as from his immediate family members especially
his mother. He appears to be and reports that he is content with his current gender and
E demonstrated masculine behavioral patterns.

[18] In his medical report dated 26 October 2009 Dr Preecha Tiewtranon

(plastic surgeon) of the Institute said:
... He is a patient that I have diagnosed as a naturally occurring transsexual with
F gender-identity as male. He underwent operation Sex Reassignment Surgery done
on October 13, 2009 ...
He is now having the male and penis and lost all the female genitalia and identities.
His sex reassignment surgery is completed as well as successful result. Therefore, he
G is now functioning as a male.

[19] Based on the various medical reports produced by the plaintiff

consisting mainly of reports by medical experts in Malaysia, it was submitted
for the plaintiff that all the legal requirements as set out by the Court of Appeal
H in Kristie Chan to warrant the grant of the declaration and relief as prayed for
herein, had been satisfied.

[20] Counsel for the plaintiff relied heavily on the case of Re JG, JG v
Pengarah Jabatan Pendaftaran Negara [2006] 1 MLJ 90 (‘Re JG’) where a
I similar declaration and relief was granted by the High Court. In that case,
James Foong J (as he then was) held that:
[20] However on the other side of the globe, in Australia, as well as the European
continent under the European Court of Justice, a more liberal approach is adopted.
In AG for the Commonwealth v Kevin & Ors (2003) FAM CA 94 the full Court of
380 Malayan Law Journal [2016] 12 MLJ

Appeal of the Family Court declined to follow Corbett v Corbett and declared, ‘we A
should also treat biological factors as entirely secondary to psychological ones’. It
went further to say, ‘In other words, where a person’s gender identification differs
from his or her biological sex, the former 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 B
bodies conform with that identification’; thus upholding the principle that: ‘we do
not determine sex; in medicine we determine sex in which it is best for the
individual to live’.
... And here, in 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 C
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.
... But surely for reasons as discussed, when it is based on medical evidence then the
courts should play its part and grant relief where justice is due.
D
In this case, the first prayer (declaration that the plaintiff be declared a woman) is for
a declaration which this court has power under the to grant. As for the second
prayer(that the Registration Department be directed to change the last digit of
plaintiff ’s identity card to a digit that reflects a female gender), it concerns only an
administrative exercise and the defendant is empowered by law under of the to
make a correction and alteration in the register and identity card. All these would E
give full effect to of the which states that ‘no person shall be deprived of his life
or personal liberty save in accordance with law’.

[21] In that case, James Foong J declined to follow an earlier decision by the
F
late Justice VT Singam in Wong Chiou Yong v Pendaftar Besar/Ketua Pengarah
Jabatan Pendaftaran Negara [2005] 1 MLJ 551; [2005] 1 CLJ 622; [2004] 3
MLRH 127, where the declaration was refused. Justice James Foong pointed
out that in Commonwealth countries, such as Australia, England and New
Zealand, as well as the European continent have recognised the reassigned
G
gender of transsexual persons.

[22] In this regard, it is relevant to note that in Attorney-General For The

Commonwealth v Kevin and Others [2003] FamCA 94, the Australian Court of
Appeal (Family Court) held that: H
Advances in medical science and surgery which make it possible for an individual to
alter their sex necessitate courts having the judicial licence to decide the sex of a
person in individual cases based upon the facts presented, rather than accepting
characteristics which may be observed at birth
I
[23] Counsel also referred to A v Chief Constable of West Yorkshire Police and
another [2004] 2 FCR 160 where the House of Lords held that:
[61] In this case, however, Ms A has done everything that she possibly could do to
align her physical identity with her psychological identity. She has lived successfully
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 381

A as a woman for many years. She has taken the appropriate hormone treatment and
concluded a programme of surgery. She believes that she presents as a woman in
every respect.
She meets entirely the plea of Advocate General Ruiz-Jarabo Colomer in KB’s case
(para 79):
B
Transsexuals suffer the anguish of being convinced that they are victims of an
error on the part of nature. Many have chosen suicide. At the end of a long and
painful process, in which hormone treatment is followed by delicate surgery,
medical science can offer them partial relief by making their external physical
features correspond so far as possible to those of the sex to which they feel they
C belong.
To my mind it is wrong that the law should take refuge in purely technical
expedients in order to deny full recognition of an assimilation which has been so
painfully won.
D In my view community law required in 1998 that such a person be recognised in her
reassigned gender for the purposes covered by the Equal Treatment Directive …

[24] Reference was also made to Goodwin v United Kingdom [2002] 2 FCR
577 where the European Court of Human Rights held that:
E The test of congruent biological factors could no longer be decisive in denying legal
recognition to the change of gender of a post-operative transsexual. There were
other important factors, such as the acceptance of the condition of gender identity
disorder by the medical professions and health authorities within the contracting
states, the provision of treatment including surgery to assimilate the individual as
F closely as possible to the gender in which they perceived that they properly belonged
and the assumption by the transsexual of the social role of the assigned gender.

[25] The next case that was referred to was Hamalainen v Finland [2015] 1
FCR 379 where the European Court of Human Rights held that:
G 8. The applicant has an interest in being granted a female identification number
because otherwise she will be required to identify herself as transgender — and thus
reveal an aspect of her personality belonging to her most intimate sphere — every
time the discrepancy between her gender presentation and her identity card has to
be explained. We believe that this amounts to more than a regrettable
H ‘inconvenience’(see para 87, above). In this connection we again refer to Goodwin v
UK [2002] 2 FCR 577 ; [2002] 2 FLR 487, in which the Grand Chamber held (at
para 77) that:
[t]he stress and alienation arising from a discordance between the position in
society assumed by a post-operative transsexual and the status imposed by law
I which refuses to recognise the change of gender cannot, in the court’s view, be
regarded as a minor inconvenience arising from a formality.
A conflict between social reality and law arises which places the transsexual in an
anomalous position, in which he or she may experience feelings of vulnerability,
humiliation and anxiety.
382 Malayan Law Journal [2016] 12 MLJ

[26] Based on the jurisprudence emanating from the case laws referred to A
earlier, counsel for the plaintiff submitted that the court should follow the cases
which demonstrate a more progressive approach and accord the plaintiff the
gender status as recognised and validated by the medical profession. He said
that the plaintiff has a constitutional right under art 5(1) of the Federal
Constitution to be accorded the gender status which has been medically B
determined after the gender reassignment surgery and that the relevant
legislation namely s 6 of the National Registration Act 1959 and s 41 of the
Specific Relief Act 1950 should be liberally and not restrictively construed and
that he should be granted the declaration that he is a male person.
C
[27] I now turn to the submission that was made on behalf of the defendant.

THE DEFENDANT’S CASE

D
[28] Learned senior federal counsel referred to s 41 of Specific Relief Act
1950 (Act 137) and the case of Tan Sri Haji Othman Saat v Mohamed bin
Ismail [1982] 2 MLJ 177 and submitted that the court should be very cautious
before granting such declaratory order. He also referred to the case of Ikebife
Ibeneweka and others v Peter Egbuna and another [1964] 1 WLR 219 and Datuk E
Syed Kechik bin Syed Mohamed v Government of Malaysia & Anor [1979] 2 MLJ
101 SC where, Lee Hun Hoe CJ (Borneo) said at p 107 (para G):
In granting a declaration the court has to consider the utility of the declaration
claimed and the usefulness of the declaration on the other hand as against the
inconvenience and embarrassment that may result on the other hand. F

[29] Learned senior federal counsel relied on the case of Corbett v Corbett
(otherwise Ashley) [1970] 2 All ER 33 which dealt with gender reassignment
and submitted that the plaintiff has a duty to show by credible evidence that all
the requirements in relation to the plaintiff ’s sexual conditions and gender G
reassignment such as chromosomal, gonadal, genital and psychological factors
have been established. In Corbett v Corbett (otherwise Ashley) [1970] 2 All ER
33 at p 44 Justice Omrod made the following observation:
I must now deal with the anatomical and physiological anomalies of the sex organs,
although I think that this part of the evidence is of marginal significance only in the H
present case. In other cases, it may be of cardinal importance. All the medical
witnesses accept that there are, at least, four criteria for assessing the sexual
condition of an individual. These are —
(i) Chromosomal factors,
I
(ii) Gonadal factors (ie presence or absence of testes or ovaries)
(iii) Genital factors (including internal sex organs)
(iv) Psychological factors
Some of the witnesses would add –
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 383

A (v) Hormonal factors or sexual secondary sexual characteristics (such as distribution

of hair, breast development, physique etc which are thought to reflect the balance
between the male and female sex hormones in the body).
As Professor Dewhurst observed ‘We do not determine sex — in medicine we
determine the sex in which it is best for the individual to live’. These criteria are, of
B course, relevant to, but do not necessarily decide, the legal basis of sex
determination.
It is important to note that these criteria have been evolved by doctors for the
purpose of systematising medical knowledge, and assisting in the difficult task of
deciding the best way of managing unfortunate patients who suffer, either
C physically or psychologically, from sexual abnormalities.

[30] At p 46 he said:
My conclusions of fact on this part of the case can be summarized, therefore as
D follows. The Defendants have been shown to have XY chromosomes and, therefore,
to be of male chromosomal sex; to have had testicles prior to the operation and,
therefore, to be of male gonadal sex; to have had male external genitalia without any
evidence of internal or external female sex organs and, therefore, to be of male
genital sex; and psychologically to be a transsexual…
E ... The Defendant’s operation, therefore, cannot affect her true sex. The only cases where
the term ‘change of sex’ is appropriate are those in which a mistake as to sex is made at
birth and subsequently revealed by further medical investigation. (Emphasis added.)

[31] In that case, the plaintiff applied for a declaration that his marriage to
F the defendant was null and void because the defendant was, at all material
times, a person of the male gender. It was not disputed that the defendant had
been registered at birth as a male and that prior to the purported marriage, had
undergone a gender reassignment surgery by removing the testicles and most of
the scrotum and the construction of an artificial vagina. In granting the decree
G of nullity, Justice Omrod held that a person’s gender was determined at birth
and he remained biologically a man despite the fact that he had undergone a
sex-change operation.

[32] Corbett’s case was considered by the English Court of Appeal in R v Tan
H and others [1983] 2 All ER 12 where the court extended the application of
Corbett’s principle to situations beyond the marriage relationship context. The
case of R v Tan and others pertained to a conviction under the Sexual Offences
Act 1965 and depended on whether the defendant was a man. The court held
that the principle enunciated in Corbett’s case applied to criminal cases as well.
I Justice Parker observed as follows:
In our judgment, both common sense and the desirability of certainty demand that
the decision in Corbett v Corbett should apply for this purpose, not only of marriage,
but also for a charge under section 30 of the Sexual Offence Act 1965 or sec 5 of the
Sexual Offences Act 1967.
384 Malayan Law Journal [2016] 12 MLJ

[33] Corbett’s case was subsequently followed in the case of Bellinger v A

Bellinger [2003] UKHL 21; [2003] 2 WLR 1174; [2003] 2 AC 467 where the
central issue was ‘whether can a person change the sex with which she or he is
born with? In that case, Lord Nicholls of Birkenhead gave his opinion as
follows:
B
The present state of the law
[11] The present state of English law regarding the sex of transsexual people is
represented by the well known decision of Ormrod J in Corbett v Corbett [1971] P
83, 104, 106. That case, like the present one, concerned the gender of a male to
female transsexual in the context of the validity of a marriage. Ormrod J held that, C
in this context, the law should adopt the chromosomal, gonadal and genital tests. If
all three are congruent, that should determine a person’s sex for the purpose of
marriage. Any operative intervention should be ignored. The biological sexual
constitution of an individual is fixed at birth, at the latest, and cannot be changed
either by the natural development of organs of the opposite sex or by medical or
D
surgical means.
[28] The distinction between male and female exists throughout the animal world
... In this country, as elsewhere; classification of a person as male or female has long
conferred a legal status. It confers a legal status, in that legal as well as practical
consequences follow from the recognition of a person as male or female. The legal E
consequences affect many areas of life, from marriage and family law to
gender-specific crime and competitive sport. It is not surprising; therefore, that
society through its laws decides what objective biological criteria should be applied
when categorizing a person as a female or a male. Individuals cannot choose for
themselves whether they wish to be known or treated as male or female.
Self-definition is not acceptable. That would make nonsense of the underlying F
biological basis of the distinction’.
[40] I do not consider this (surgical intervention) would be a proper or indeed, a
responsible basis on which to change the law. Surgical intervention takes many
forms and, for a variety of reasons, is undertaken by different people to different
G
extent. For men, it may mean castration or inversion of the penis to create a false
vagina. For women, it may mean mastectomy, hysterectomy, or creation of a penis
by phalloplasty. There seems to be no standard operation or recognized definition of
the outcome of completed surgery. Today, the case before the house concerns Mrs
Bellinger. Tomorrow’s case in the high court will relate to undergo a less extensive
course of surgery. The following week will be the case of a transsexual who has H
undergone hormonal treatment but who for medical reasons, has not been able to
undergo any surgery. Then there will be transsexual person who is medically able to
undergo all or part of the surgery but do not wish to do so. By what criteria are cases
such as these to be decided?
… I
[41] But the problem is more fundamental than this. It is questionable whether the
successful completion of some sort of surgical intervention should be essential prerequisite
to the recognition of gender reassignment. If it were, individuals may find themselves
coerced into major surgical operations they otherwise would have not. But the aim
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 385

A of the surgery is to make the individual feel comfortable with his or her body. Not to ‘turn
a man into a woman’ or vice versa ...
[45] Secondly, the recognition of gender reassignment for the purpose of marriage
is part of a wider problem which should be considered as a whole and not dealt with
in a piecemeal fashion. There should be a clear and coherent policy. The decision
B regarding recognition of gender reassignment for the purpose of marriage cannot
sensibly be drawn in isolation from a decision on the like problem in other areas
where a distinction is drawn between people on the basis of a gender. These areas
include education, child care, occupational qualifications, criminal law
(gender-specific offences), prison regulation, sports, the needs of decency, and birth
C certificates. Birth certificates, indeed are one of the matters of most concern
transsexual people, because birth certificates are frequently required as proof of
identity or age or place of birth. When, and in what in circumstances, should these
certificates be capable of being reissued in a revised form which does not disclose
that the person has undergone gender reassignment?
D [49] For these reasons I would not make a declaration that the marriage celebrated
between Mr and Mrs Bellinger in 1981 was valid. A change as sought by Mrs
Bellinger must be a matter for deliberation and decision for Parliament when the
forthcoming Bill is introduced.

E [34] The Bellinger case also recognised that the serious ramifications and
implications which will follow from a judicial recognition of change of gender
would be as follows:
[37] This would represent a major change in the law, having far-reaching
ramifications. It raises issues whose solution calls for extensive enquiry and the
F widest public consultation and discussion. Questions of social policy and
administrative feasibility arise at several points, and their interaction has to be
evaluated and balanced. The issues are altogether ill-suited for determination by
courts and court procedures. They are pre-eminently a matter for Parliament, the
more especially when the government, in unequivocal terms, has already
G announced its intention to introduce comprehensive primary legislation on this
difficult and sensitive subject.

[35] It was thus submitted for the defendant that the fact that a gender
reassignment surgical procedure was conducted should not be and is not the
H criteria for such a declaration as the aim of such surgical gender reassignment
intervention is just to make a person feel more comfortable with his or her own
body, and not to ‘turn a man into a woman’ and vice versa as decided in
Bellinger’s case.

I [36] Learned senior federal counsel submitted quite trenchantly that the
biological and sexual constitution of an individual is fixed at birth and cannot
be changed either by the natural developments of the organs of the opposite sex
or by medical or surgical means (as per Omrod J in Corbett v Corbett). Learned
senior federal counsel said that the relevant criteria that was posited in Bellinger
386 Malayan Law Journal [2016] 12 MLJ

and Corbett was accepted by the Court of Appeal in the case of Kristie Chan. A

[37] He emphasised that in Kristie Chan’s case, Justice Datuk Abdul Wahab
Patail had clearly enunciated that there must be evidence on the medical and
psychological aspects in order for the court to consider such application. He
drew the court’s attention to the fact that in Kristie Chan’s case, the applicant B
failed to establish evidence in his affidavit on the definition of gender, the
characteristics and/or function of a female and a male and whether the
operation to change gender warranted a change to the details in the
identification card.
C

[38] Learned senior federal counsel said that there must be a certainty in the
law, and that this is reflected by the facts as stated in the birth certificate. He
said, if the courts are allowed to declare a woman as a man today and vice versa,
then it can also declare the same man to be a woman on a later date. In such a D
situation, there will be a state of confusion as to the applicability of laws on such
persons and this is clearly against the public policy.

[39] Learned senior federal counsel also relied heavily on the case of Wong
Chiou Yong v Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara E
[2005] 1 MLJ 551; [2005] 1 CLJ 622; [2004] 3 MLRH 127, where the late
Justice VT Singham dealt with a similar case and made the following findings:
[1] The relevant legislation that the birth register may be amended only if an error
was made in the initial registering of the birth is s 27 of Act 299/1957. The other F
relevant legislation is s 6(2) of Act 78/1959. In the present case, there was no error
in the sex of the plaintiff as initially entered in the birth certificates and thereafter
the identification card. There was no medical examination that there was a mistake
in fact or substance at the time of the registration of birth. In fact, the biological
change on the plaintiff was by medical or surgical means and this was supported by
the plaintiff ’s own evidence and material produced before the court (pp 626 h, 627 G
a & 635 a–c).
[2] A person who has undergone a sex change operation cannot be regarded as
belonging to the sex for which reassignment surgery was undertaken. Further, the
words ‘man’ and ‘female’ in the relevant documents do not include persons of
H
reassigned sex and should not be contrary to the biological characteristics of the
person when born (p 635 d–e).
[3] The reassignment surgery did not affect the status of the plaintiff ’s true gender
at the time of birth. The BC and IC were issued in accordance with the original
identity of the plaintiff at the time of birth. Further, this court has no power to grant I
the application on the ground that there was gender reassignment surgery. There
was also no express legislation to re-register the gender of a transsexual or register a
transsexual under the guise of any error or fact or substance in the register pursuant
to s 27(3) of Act 299 and s 6(2) Act 78 1959.
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 387

A An entry in the register book, too, is regarded as a record of fact at the time of birth
and the birth certificate constitutes a document revealing not current identity but
historical facts (pp 635 f–h, 636 a–c & 639 f ).
[4] The criteria for determining the sex of a child to be registered is not laid down
in Act 299/1957 or in any regulation made thereunder. The practice of the registrar
B general is to apply exclusively the biological criteria, chromosomal, gonodal and
genital sex as informed by the parents or guardian of the child. The fact that later in
life the person’s ‘psychological sex’ is at variance with its biological constituents
cannot be considered to invoke s 27(3) of Act 299/1957 so as to imply that the
initial entry was a factual error. A change in the initial entry will be contemplated in
C the following circumstances, namely, in cases of clerical error, error of fact or
substance; wrong identification of the apparent and genital sex of the child at the
time of birth; where the biological criteria are not congruent (p 640 d–f ).
[5] Parliament could not have envisaged the type of grievance faced by the Plaintiff
when Act 299/1957 and Act 78/1959 was introduced. The decision to be made on
D this application should not conflict with the spirit and intention of the legislature as
expressly stipulated in Act 1957. There was also no evidence that the Plaintiff
acquired all the biological characteristics of the assigned sex after the reassignment
surgery (pp 641 b–c & 645 c).

E [40] Based on the above-stated case, it was submitted for the defendant that
in the present case, there is no error with regard to the sex of the plaintiff as
initially entered in the birth certificate and thereafter in the national
registration identity card. He pointed out that there was no medical
examination to show that there was a mistake in fact or substance at the time of
F the registration of birth.

[41] Thus, it was submitted for the defendant that the words ‘male’ and
‘female’ in the relevant documents do not include persons of reassigned sex and
should not be contrary to the biological characteristics of the person when
G born. He said that the gender reassignment surgery did not affect the status of
the plaintiff ’s gender at the time of birth. Learned senior federal counsel also
alluded to the fact that there was no evidence pertaining to the chromosomal
factor.

H [42] He therefore submitted that the plaintiff had not established the
requirements as stipulated in the Bellinger and Corbett case. He said that it is
outrageous for the plaintiff to suggest that the case of Bellinger and Corbett is
inapplicable in Malaysia, as the Court of Appeal has recognised these
requirements in the Kristie Chan case.
I
[43] He also referred to a recent decision by Zaleha bt Yusof J (as she then
was) in Fau En Ji v Ketua Pengarah Jabatan Pendaftaran Negara [2015] 1 CLJ
803; [2014] 1 MLRHU 1097 where the learned judge dismissed the
application and held as follows:
388 Malayan Law Journal [2016] 12 MLJ

[12] Based on the above medical reports, I totally agree with the respondent’s A
argument that:
(a) None of the medical officers gave evidence pertaining to the chromosomal
factor;
(b) None of the medical officers gave evidence pertaining to the genital factor B
which involves internal sex organs and functions,
(c) None of the medical officer gave evidence pertaining to what can be
defined as gender as a female and as a male.
(d) None of the medical officers gave evidence pertaining to what are the C
characteristic of a male and a female (generally); and
(e) None of the medical officers gave evidence pertaining to whether sex
reassignment surgery changes a person’s gender to warrant a change of the
gender description in that person’s identity card, based on the
requirements laid out in case law. D
[13] Learned counsel for the applicant has argued that there is a clear departure
from Corbett and Bellinger in that the Court of Appeal, in Kristie Chan was prepared
to consider and take into account the psychological factor (in additional to the three
biological factors) in determining the gender of the applicant. With due respect,
the Corbett which was followed by Bellinger did not confine only to the three E
biological factors. As Ormrod J in Corbett had stated:
... there are at least, four criteria for assessing the sexual condition of an individual.
These are:
i. chromosomal factors;
F
ii. gonodal factors (ie, presence or absence of testes or ovaries).
iii. genital factors (including internal sex organs).
iv. psychological factors.
Hence, I opine, psychological factor alone or gonodal factors are not sufficient to G
assess the applicant’s sexual condition.

[44] It was further submitted that the provisions of law only provides for the
alteration, correction or amendment as per the circumstances envisaged in
reg 14 of PU(A) 472/1990 which does not include change of gender. In this H
regard, reference was yet again made to the case of Wong Chiou Yong (P) v
Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara [2005] 1 MLJ
551; [2005] 1 CLJ 622; [2004] 3 MLRH 127, where Justice VT Singham
decided as follows:
I
... Generally, this court has the discretion to grant declaratory relief but in the
instant case there is insufficient evidence to support that the plaintiff ’s gender has
been changed biologically to male but physically and physiologically as a man.
Although the Plaintiff and the transsexuals cannot be left to live in legal limbo but
however the remedy for registration as to their current gender is with parliament
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 389

A and not the courts as any fact changed in the registration of transsexual must be
introduced by Act of Parliament and cannot probably be made by judicial
pronouncement. This court cannot arrive at the construction conformable with the
contention of the plaintiff ’s counsel that the registrar general be directed to alter or
correct the register of births which no doubt will be against the scope and express
B words of the provision in s 27(3) of the …

[45] Learned senior federal counsel referred to the case of Wong Chiou Yong
and submitted that the application should be dismissed as there is no legal or
statutory procedure for such amendment, alteration or correction to
C individuals with gender reassignment issues. He said that there are no legal
provisions to enable the defendant to change the plaintiff ’s gender on the
identification card and based on the considerations mentioned in Bellinger’s
case, this court should not make the declaration as sought by the plaintiff as the
granting of the declaration order would have a massive impact on the society at
D large.

[46] He emphasised that there is also no express legislation to re-register the

gender of transsexual persons or register a transsexual under the guise of any
error of fact or substance in the register pursuant to s 27(3) of the Birth and
E Death Registration Act 1957 and s 6(2) of National Registration Act 1959.

ANALYSIS AND CONCLUSION

[47] The first point to be made is that Corbett’s case was a controversial one.
F
It attracted much criticism. Indeed, in Bellinger’s case, Lord Nicholls had
alluded to the criticism that emanated from the narrow criteria that was
enunciated in Corbett’s case and said:
[13] The decision in Corbett has attracted much criticism, from the medical
G profession and elsewhere. The criteria for designating a person as male or female are
complex. It is too ‘reductionistic’ to have regard only to the three Corbett factors of
chromosomes, gonads and genitalia. This approach ignores ‘the compelling
significance of the psychological status of the person as a man or a woman’. Further,
the application of the Corbett approach leads to a substantially different outcome in
the cases of a post-operative inter-sexual person and a post-operative transsexual
H person, even though, post-operatively, the bodies of the two individuals may be
remarkably similar.
In overseas jurisdictions Corbett has not been universally followed. It was followed,
for instance, in South Africa in W v W (1976) (2) SALR 308 and in Canada in M
v M (A) (1984) 42 RFL (2d) 267. But more recently the trend has been in the
I
opposite direction. Thus, for instance, in New Zealand and Australia post-operative
transsexuals’ assigned sex has been recognised for the purpose of validating their
marriages. In New Zealand in General v Otahuhu Family Court [1995] 1 NZLR
603, 630, Ellis J noted that once a transsexual person has undergone surgery, he or
she is no longer able to operate in his or her original sex. He held there is no social
390 Malayan Law Journal [2016] 12 MLJ

advantage in the law not recognising the validity of the marriage of a transsexual in A
the sex of reassignment. An adequate test is whether the person in question has
undergone surgical and medical procedures that have effectively given the person
the physical conformation of a person of a specified sex.
In Australia Chisholm J reached a similar conclusion in Re Kevin (validity of
marriage of transsexual) [2001] Fam CA 1074, a case decided after the decision of B
the Court of Appeal in the present case. Chisholm J’s extensive judgment contains
a powerful critique of the existing law and a useful review of international
developments. Having regard to the view I take of this case, it is not necessary for me
to elaborate on his views. Suffice to say, his conclusion was that there is no
‘formulaic solution’ to determining the sex of an individual for the purpose of the C
law of marriage. All relevant matters need to be considered, including the person’s
life experiences and self-perception. Post-operative transsexual people will normally
be members of their reassigned sex.
This decision was the subject of an appeal. Very recently, on 21 February 2003, the
full court of the Federal Family Court dismissed the appeal: Appeal no. EA/97/2001 D
(unreported). The judgment of the full court contains an invaluable survey of the
authorities and the issues. The court concluded that in the relevant Commonwealth
marriage statute the words ‘man’ and ‘woman’ should be given their ordinary,
everyday contemporary meaning. Chisholm J was entitled to conclude, as a
question of fact, that the word ‘man’ includes a post-operative female to male E
transsexual person. The full court left open the ‘more difficult’ question of
pre-operative transsexual persons.

[48] For completeness on this point I should add that after the Corbett and
Bellinger cases, there was legislative intervention in the United Kingdom by F
way of the Gender Recognition Act 2004 (‘the GRA’) which allows transgender
people to legally change their.

[49] The GRA came into effect on 4 April 2005 and gives people legal
recognition as members of the sex appropriate to their (male or female) and G
allowing them to acquire a new and according them full recognition of their
acquired sex in law for all purposes, including marriage. The GRA was the
legislative response by the United Kingdom to overcome violation of articles 8
and 12 of the European Convention of Human Rights.
H
[50] In so far as Malaysia is concerned in Wong Chiou Yong’s case, the late
Justice VT Singham followed the jurisprudence which emanated from cases
such as Corbett and Bellinger and took the view, inter alia, that the absence of
chromosomal evidence was fatal to any application of this nature. The learned
judge also alluded to the absence of legal statutory provisions for amendments I
to be made to the initial re-registration of birth so as to cater for the change in
gender of persons who have undergone gender reassignment surgery. The
learned judge in Wong Chiou Yong’s case left it to Parliament to find a solution
to the predicament of persons who had undergone gender reassignment
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 391

A surgery and posited that the court was not empowered to make a declaration
that the applicant was now of a different gender. To-date, there is no legislation
in Malaysia catering for registration issues as a result of gender reassignment.

[51] In Re JG, James Foong J took a different view. He opined that there were
B two streams of thought on the matter. He said that the school of thought which
insisted that the person must fulfill the requirements stipulated in
Corbett/Bellinger is not progressive as it is in conflict with the opinion of the
medical profession, which views gender from a different perspective.
C
[52] As I have stated earlier in my judgment, the medical evidence presented
in this case individually, collectively and unambiguously concludes that the
plaintiff is a male.

D [53] In so far as the so-called chromosomal requirement is concerned, no

doubt, there was no reference to male chromosomes in any of the medical
reports. But it is a matter of logic and a recognised scientific fact that the
plaintiff does not and cannot have male chromosome as he was born as a
female. The chromosomal requirement is a complete non-starter as it is akin to
E asking for the impossible.

[54] In Re Kristie Chan, the Court of Appeal dismissed the appeal and upheld
the decision of the judicial commissioner who had dismissed the application
for a declaration on change of gender as there was insufficient evidence before
F the court on the issue of the plaintiff ’s gender. In my view, the Court of Appeal
did not lay down any inflexible rule that the applicant seeking a declaration as
a result of gender reassignment surgery, must establish, inter alia, the
chromosomal requirement.

G [55] In Fau En Ji the High Court was clearly dealing with an application for
judicial review and the application was dismissed, inter alia, because the Court
was of the opinion that the application should have first obtained a declaration
before embarking on a judicial review. I am not sure if that is a correct
statement of the law as a declaration can be a relief in a judicial review
H application (see: O 53 r 2(2) of the Rules of Court 2012). At any rate, the
learned judge said that the topic of change of gender was a complex issue which
required the evidence of witnesses (see: para 18 of the judgment).

[56] It is interesting and significant that in Fau En Ji’s case, the learned judge
I made a passing reference to the defendant’s internal directive on change of
gender. In this regard, reference may be made to para 21 of the affidavit in reply
by Dato’ Sulaiman bin Hj Keling (encl 9) where the deponent states that there
is no statutory provision or legal mechanism for a declaration for change of
gender. It reads in Bahasa Malaysia as follows:
392 Malayan Law Journal [2016] 12 MLJ

Seterusnya, setelah dinasihatkan oleh Peguam Kanan Persekutuan, saya dengan A

sesungguhnya menyatakan bahwa tiada undang-undang di Negara ini yang
menyediakan peruntukkan atau mekanisma bagi deklarasi penukaran jantina.

[57] Then, in para 4 of his further affidavit, the same deponent states that the
defendant will not permit any change of gender ‘save where there is a Court B
Order’ and he referred to the department’s internal directive named as ‘Arahan
Jabatan Pendaftaran Negara Bil 9/2007’ (paragraph 5.7.1)’. In this regard, he
said:
Merujuk kepada perenggan 21 Afidavit jawapan Defendan, setelah dinasihatkan C
oleh Peguam Kanan Persekutuan , saya sesungguhnya menyatakan bahawa Jabatan
Pendaftaran Negrara Malaysia tidak membenarkan penukaran nama kerana
menukar nama jantina melainkan atas perintah mahkamah berdasarkan Arahan
Jabatan Pendaftaran Negara Bil. 9/2007 di perenggan nombor 5.7.1.
D
[58] The defendant’s said ‘Arahan’ or departmental directive reads as follows:
5.7 Penukaran Nama Kerana Menukar Jantina
5.7.1 Pindaan jantina dalam kad pengenalan adalah tidak dibenarkan kecuali atas
Perintah Mahkamah. E
5.7.2 Permohonan pertukaran nama kerana berlaku pertukaran jantina hendaklah
mengemukakan dokumen-dokumen berikut:-
(a) Perintah Mahkamah yang mengandungi butir-butir pengisytiharan
jantina baru pemohon; F
(b) Surat pengesahan doktor Kerajaan (jika ada);
(c) Surat pengesahan pembedahan penukaran jantina yang dikeluarkan oleh
Hospital berkenaan;
(d) Sijil Lahir (asal dan salinan). (Emphasis added.) G

[59] As I said at the outset, the opinion on this topic is rather divided. The
Malaysian cases that have been referred to are at best judicial guideposts. The
cases of JG, Wong Chiou Yong and Fau En Ji are decisions of the High Court. H
They are persuasive but are not binding on this court and I am entitled to
depart from any one of those cases. The doctrine of stare decisis does not apply
in respect of decisions by courts of co-ordinate jurisdiction. In Sundralingam v
Ramanathan Chettiar [1967] 2 MLJ 211 at p 213; [1966] LNS 187; [1966] 1
MLRH 288, Ong Hock Thye FJ speaking for the then Federal Court said: I
Each court is bound by the decisions of courts above it, but ‘individual judges are
not bound by each other’s decisions, although judicial courtesy naturally requires
that they do not lightly dissent from the considered opinions of their brethren’ ...
within the past decade and even the last lustrum, judges in Malaya have, on several
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 393

A occasions respectfully agreed to differ, as may be seen from the reports in The
Malayan Law Journal.

[60] It is significant to note that Kristie Chan’s case and Fau En Ji’s case do
not refer to Re JG. I am not sure whether the decision of the High Court in Re
B JG was drawn to the attention of the Court of Appeal and the High Court
respectively. Next, it may be noted that in Kristie’s case, the Court of Appeal
was somewhat troubled by the purpose for which the declaration was being
sought. In that case, the applicant who had undergone gender reassignment
C
surgery had highlighted the difficulties he was facing with obtaining
employment, travel, education and other personal issues. I am not at all clear as
to why those reasons should be frowned upon as those are legitimate reasons
and concerns which any applicant would want to overcome.

D [61] From my reading of Kristie Chan’s case, it appears that the Court of
Appeal ‘referred’ to the cases of Corbett, Bellinger and Wong Chiou Yong without
stating unequivocally that it was endorsing the chromosomal requirement to
establish gender and/or that the ruling in Corbett and Bellinger was to be
regarded as part of Malaysian jurisprudence. The language of the Court of
E Appeal does not suggest that it went that far. Of course, it might have been
different if the Court of Appeal in Kristie Chan’s case had unequivocally
approved of the approach that was taken by the courts in Corbett, Bellinger and
Wong Chiou Yong. And so, it would be erroneous to suggest that the Court of
Appeal in Kristie Chan’s case had laid down the chromosomal requirement as a
F criteria for determining whether to grant declaration for change of gender. It is
clear that in Kristie Chan’s case, the Court of Appeal was just not satisfied with
the quality of the medical and psychiatric evidence that was produced.

G [62] Hence, in Kristie Chan’s case, the Court of Appeal was effectively
leaving open the possibility that in an appropriate case and depending on the
quality and credibility of the medical evidence and other supporting evidence,
the court could make a determination and grant the relevant declarations that
were sought with regards to the reassigned gender.
H
[63] In this regard, it should also be noted that the defendant’s ‘Arahan’ is
dated sometime in 2007 which chronologically, would be after the High
Courts had rendered their decision in the Wong Chiou Yong and Re JG cases.
The genesis of the ‘Arahan’ remains elusive and there was no evidence before
I the court as to what impelled the defendant to come up with the ‘Arahan’.
Whatever may be the case, the ‘Arahan’ demonstrates that the defendant
themselves have recognised that changes can be made to the national
registration identity card, with regards to change of gender provided an order of
court is obtained.
394 Malayan Law Journal [2016] 12 MLJ

[64] In so far as the court’s approach is concerned, in my view, it all boils A

down to the quality and persuasiveness of the medical and psychiatric evidence
and the 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. Here, I find that this is a genuine application by a person who has been
certified by the medical profession to be a male. In my view, the chromosomal B
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. Hence, it is naïve to suggest that an applicant has to
C
show that he or she has the chromosome of the reassigned sex. It plainly means
that to insist on the chromosomal requirement is to ask for the impossible and
I think that nothing can be more unjust than that.

[65] To my mind, the better view with regards to the chromosomal issue is D
that which has been encapsulated in the approach that was taken by the Family
Court in Australia in Attorney-General For the Commonwealth v Kevin and
Others 2003 FamCA 94 where at para 295 of the judgment, the court
emphasised the importance of abandoning the chromosomal factor and
highlighting the imperative need to view the matter from the physiological and E
physiological perspective. This is what was said by the Family Court in
Australia:
[295] We are in any event much more attracted by the reasoning of Thorpe LJ. We
have difficulty in understanding how the Corbett test can continue to be applied in
face of the evidence, not only as to brain sex, but also as to the importance of psyche F
in determining sex and gender. The fact that these issues cannot be physically
determined at birth seems to us to present a strong argument; first, that a child’s sex
cannot be finally determined at birth; and second, that any determination at that
stage is not and should be immutable. We agree with the views expressed by
Thorpe LJ (at [155]) when he said: G
To make the chromosomal factor conclusive, or even dominant, seems to me
particularly questionable in the context of marriage. For it is an invisible feature
of an individual, incapable of perception or registration other than by scientific
test. It makes no contribution to the physiological or psychological self. Indeed
in the context of the institution of marriage as it is today it seems to me right as H
a matter of principle and logic to give predominance to psychological factors just
as it seems right to carry out the essential assessment of gender at or shortly
before the time of marriage rather than at the time of birth.

[66] Before I conclude I would like to touch on a point that was made by I
learned senior federal counsel where he said that a declaration to recognise the
individual’s reassigned gender can create confusion and uncertainty. He also
said that the court must consider the impact on society. In this regard, I do
think that the suggestion with regards to confusion and uncertainty is not just
 Tan Pooi Yee v Ketua Pengarah Jabatan Pendaftaran Negara
[2016] 12 MLJ (S Nantha Balan J) 395

A overstated but is actually quite to the contrary. A declaration to recognise the

applicant’s reassigned gender will in my view contribute to certainty and avoid
confusion and quite possibly conflict as well. In the present case, the plaintiff is
for all intents and purposes a male person. It has been established that the
medical profession has unambiguously determined that he is physically,
B anatomically and psychologically a male. As such, it only remains for the legal
process to declare that he is a male person. Were it otherwise, then based on the
plaintiff ’s current legal status, society would be compelled to regard and accept
him as a female and allow him, for instance, to use the female washroom and
other gender sensitive facilities meant for members of the female gender.
C
[67] Of course, there are various other examples that could be given to
demonstrate the utter confusion and apprehension that may be caused in
different settings and contextual situations if the plaintiff has to remain legally
a female.
D
[68] In my view, there is no legal impediment or restriction to the grant of a
declaration to legally recognise the plaintiff as a male person and for his
national registration identity card to be changed to reflect the change in gender
E so that he is able to live as a male and be accepted by society as a male. No doubt
certain theological or other quarters may decry such curial recognition as an
interference with the gender of a person that was determined at birth by nature.
But such a line of thinking stems from the old or orthodox school which holds
the view that the gender which is determined at birth is fossilised and is
F incapable of change or reassignment.

[69] With the advent and advances of modern medicine and surgery and
enhancement of human knowledge it is now medically possible to achieve
gender reassignment via delicate plastic and reconstructive surgery with the
G best possible outcome and to make the patient’s physical features correspond to
the gender to which the patient feels he or she belongs to. I am of course,
acutely aware that gender reassignment surgery is a life changing decision and
as such it is not one that is taken or to be taken lightly.

H [70] As for safeguards against abuse, I take comfort and refuge in the high
ethical standards of the medical profession whose members are unlikely to
hastily undertake these surgeries as they would invariably have to satisfy
themselves that the patient is mentally ready and that there is adequate and
compelling psychological and psychiatric assessment and outcome before any
I gender reassignment surgery is done.

[71] As for the suggestion that a person will seek to be reassigned to a

different gender and later seek a restoration of the original gender on another
day, I find that it is not just far-fetched, but is also reflective of an alarmist
396 Malayan Law Journal [2016] 12 MLJ

mindset. The reality is that it is highly unlikely or remote that a person will seek A
to revert to his or her original gender after having undergone gender
reassignment surgery. At any rate, whilst there is a possibility of such an
eventuality happening, the probabilities are most certainly very low or almost
remote. For now, based on the facts and circumstances, it is my ruling that the
plaintiff in the present case, who was born as a female, has grown up behaving B
and living like a male and has undergone gender reassignment surgery and has
obtained validation of the medical profession that he is a male person, has in
my view, satisfied the threshold or criteria that was set out in Kristie Chan’s case.

[72] In my view, the plaintiff has a precious constitutional right to life under C
art 5(1) of the Federal Constitution of Malaysia and the concept of ‘life’ under
art 5(1) must necessarily encompass the plaintiff ’s right to live with dignity as
a male and be legally accorded judicial recognition as a male. It is apposite in
this regard to quote from Professor Dr Shad Saleem Faruqi who said at p 206
in his book ‘Document of Destiny — The Constitution of the Federation of D
Malaysia’ that ‘the word ‘life’ does not refer merely to the animal existence of
breathing and living. It covers the right to live with human dignity.’

[73] For the reasons as discussed above, I hold that the plaintiff is entitled to
the declarations that he seeks by way of the originating summons. E

ORDER

[74] I granted the following orders:

F
(a) a declaration that the plaintiff, who had undergone a gender
reassignment surgery, be declared a man;
(b) the defendant be directed to change the plaintiff ’s identity card to ‘Tan
Yien How’;
G
(c) the defendant be directed to change the last digit of the plaintiff ’s
identity card to a digit that reflects the male gender; and
(d) no order as to costs.
H
Order accordingly.

Application allowed.

Reported by Ashok Kumar I