Court of Appeal reverses High Court decision on transsexual man

PUTRAJAYA - The Court of Appeal has overturned a High Court decision made last July which declared that a person who had gender reassignment surgery is legally a man.

A three-member Court of Appeal panel chaired by Datuk Seri Zakaria Sam allowed the appeal by the National Registration Department director-general after finding that there was merit to it.

"The order of the High Court is set aside. Basically, we agree with the submission by the Senior Federal Counsel. We will write the grounds of judgment and there is no order as to costs," said Justice Zakaria.

The other two judges on the panel were justices Datuk Ahmadi Asnawi and Datuk Hasnah Mohammed Hashim.

Earlier, Senior Federal Counsel Mohamad Rizal Fadzil submitted that the respondent (the woman) did not provide a medical report on her chromosome particulars (those with XY chromosomes are males and XX are females).

He argued that the respondent had produced a medical report on her internal sex organs and psychological factors, but had failed to adduce chromosome details to determine her gender.

"The respondent did not provide a medical report before she underwent the sex change," he said, adding that she had a duty to show all the evidence on her sexual condition and gender re-assignment to support her application.

Her lawyer William Lim asked the panel to maintain the High Court's order to avoid confusion as the name in his client's IC was a woman's, but she had since undergone a sex change and acted as a man.

On July 18 last year, the Kuala Lumpur High Court granted an originating summons and declaration filed by the woman that she be declared a man, and for the NRD D-G to change the name as well as the last digit in the respondent's IC to reflect the male gender.

The High Court judge held that the woman had a precious constitutional right to life under Article 5(1) of the Federal Constitution and the concept of "life" under the Article must necessarily encompass the plaintiff's right to live with dignity as a male and be legally accorded judicial recognition as a male.

The 30-year-old woman underwent gender replacement surgery in Bangkok, Thailand on Oct 13, 2009.

The subsequent application she made to the NRD for changes to be made to her IC was rejected. – Bernama