JEFFREYJESSIE : RECOGNISING TRANSSEXUALS
©Honey Tan Lay Ean
“The power is here (Parliament), when everyone agrees to it. You can persuade the MPs but from what I have heard, you will have a tough time”
Datuk Azmi Khalid
New Straits Times, 20th October 2005
That was the reply of the Home Minister to Ms Chong Eng’s call in Parliament to amend the law so that transsexuals who have undergone sex change operations be allowed to have their My Kads corrected to reflect the change.
Transsexuals and members of civil society reading the words of the Home Minister in the newspapers must have felt their hearts sink even further as this comes in the wake of the ruling in the High Court of Ipoh case of Wong Chiou Yong v. Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara (Wong’s case). The learned judge in that case upheld the decision of the National Registration Department in refusing to amend or correct the Birth Certificate and National Registration Identity Card of the Plaintiff, a transsexual. He held that, “Although the applicant 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 and not the courts as any fact changed in the registration of transsexuals must be introduced by Act of Parliament and cannot probably be made by judicial pronouncement.” (emphasis mine)
Is all lost for transsexuals seeking to be recognised in their reassigned gender ? Perhaps not. In a yet to be published decision of J.G v. Pengarah Jabatan Pendaftaran Negara (JG’s case), the learned judge of the High Court in Kuala Lumpur, in dealing with similar facts, decided in favour of allowing the Plaintiff’s application. The Defendant was directed to change the last digit of the Plaintiff’s identity card to reflect the reassigned gender.
Can these two decisions be reconciled? But more interesting is the question : what is the role of judges in dispensing social justice when faced with a Parliament which has indicated a reluctance to legislate on this issue ?
This article will begin by giving an overview of the realities of the lives of transsexuals in Malaysia, concentrating more on the situation of the Mak Nyahs; but only because there is more information available on their positions. The article will then explore the specific issues of amending the Birth Certificates and the National Registration Identity Card of transsexuals. The cases cited above will be examined to discern how the learned judges, both well respected, came to such different decisions. In this context, I will explore how the Judiciary achieves the dual and sometimes antagonistic, objectives of law : maintaining certainty of the law and ensuring individualised justice through judicial activism – bearing in mind always that Law may be used as an oppressive tool as well as one of emancipation. The role of judges and courts will be explored. What conclusions may be drawn on the desirability and efficacy of judicial activism in meting out justice to those who seek it – does it deliver on its tantalising promise? Finally, some recommendations will be made to address the recognition of transsexuals in their reassigned gender.
Of Being Transsexuals In Malaysia
Male transsexuals in Malaysia are termed Mak Nyahs. It derives from mak, meaning ‘mother’. It was coined by male transsexuals in 1987 in their attempt at self–definition. It emerged from two streams, as Khartini Slamah writes, “first, a desire to differentiate ourselves from gay men, transvestites, cross dressers, drag queens, and other ‘sexual minorities’ with whom all those who are not heterosexual are automatically lumped; and second, because we also wanted to define ourselves from a vantage point of dignity rather than from the position of derogation in which Malaysian society has located us.” Whilst mak nyahs may have been born biologically ‘male’ and are effeminate, that is not how they view themselves. Khartini goes on to say that their localised identities “are embedded in an ever–unfolding idea of who they are.” They are ‘men’ who think, behave, dress and most importantly, want to become women.
Teh notes that women transsexuals are termed Pak Nyahs – pak meaning ‘father’. Sometimes they are also referred to as abang, meaning brother or man. They are also commonly called ‘tomboys’. They are considered a minority within a minority group, and are less visible in Malaysian society as jeans and T–shirts are commonly worn by women here.
In the Mak Nyah community, a sex change operation is not necessary for them to be identified as such – this is primarily because the costs of such operations are prohibitive and most Mak Nyahs are economically marginalised. “Mak Nyahs define themselves in various ways along the continuums of gender and sexuality : as men who look like women and are soft and feminine, as the third gender, as men who dress up as women, as men who like to do women’s work, as men who like men, etc”
The definition by others is more restrictive, as can be seen in Wong’s case, where the learned judge defined a transsexual as “a person who has undergone hormonal and surgical treatment to change some of the physical characteristics in order to conform more closely to the opposite sex but the biological bodies and functions of their initial sex remained.”
When Teh carried out his study around 1998, he quoted IKHLAS (Pink Triangle) , a local non–governmental organisation involved in reaching out to mak nyahs, in estimating that there were about 10,000 mak nyahs in the country. He goes on to say that 70–80 percent of mak nyahs are Malays, and notes that in Islam, there are four gender groups : male; female; khunsa; and mukhannis or mukhannas. Khunsa are essentially hermaphrodites. Mukhannis and mukhannas are males, who behave like females. Mukhannis seek a gender identity that is different from that with which they were born in that they loathe their male identity and want to be female. On the other hand, mukhannas are effeminate, but do not want to change their sex. In Islam, khunsas (hermaphrodites) may undergo sex change operations for gender reassignment. However, mukhannis or mukhannas are forbidden to cross–dress, wear make–up, inject hormones to enlarge their breasts, and undergo sex change operations.
Teh writes that in the 1983 Conference of Rulers, it was decided that a fatwa prohibiting sex change operations would be imposed on all Muslims, except for hermaphrodites. Cross–dressing was also prohibited. He also noted that scholars have quoted Prophet Muhammad as cursing the males who appear like females and vice–versa. In this way, Muslim mak nyahs bear the double burden of being discriminated against by Malaysian society generally and by being “deviants” in religious terms.
According to Khartini, the fatwa has had great impact on the lives of the Muslim mak nyahs. Some have accepted the ruling, and that God’s will should not be changed whilst others have had to go abroad for their gender reassignment surgery. Muslim mak nyahs are not allowed to pray in mosques as they are dressed as women. Performing the Haj is also difficult if they have had sex change operations. Furthermore, any contact with the religious authorities would immediately expose them to the possibility of prosecution. Sex between men is also forbidden in Islam. At the same time, mak nyahs are still recognized as men. As such, they feel they have transgressed each time they have sex and this situation is a source of guilt and shame for many mak nyahs, especially those who are religious. The fatwa also has serious impact on certain gender specific death rituals. A deceased Muslim may only be bathed by a person of the same sex. So a transsexual would still be treated as a man, and therefore his body would be bathed by men – even if during his lifetime he had lived as a woman and looks like a woman.
Khartini notes that if Muslim mak nyahs are arrested by the religious authorities and charged in the Syariah courts, they may be fined up to RM1,000 and/or be imprisoned. Non–Muslim mak nyahs are generally ‘allowed’ to be mak nyahs as their religions do not have the official religious rulings which are enforceable as law.
Teh’s research shows that Muslim and non–Muslim mak nyahs may be charged under the civil (non–Syariah) law for indecent behaviour under Section 21 of the Minor Offences 1955. As ‘indecent behaviour’ is not defined, the Police have great discretion in determining what constitutes ‘indecent behaviour’. The fines they pay under that section are in the region of RM25–50.
In Teh’s study, 55% of the respondents had been caught by the Police. 75% had been caught on three or fewer occasions, 17% had been caught between four and six times, 3% were caught between seven and nine times, and 5% had been caught ten times or more.
The study also revealed that the main reasons that they had been caught by the police were for cross–dressing (33%), indecent dressing (18%), prostitution (16%), failing drug tests (13%), during a police raids or operations (10%), and for loitering late at night (6%).
At the police stations, 71% were stripped of their women’s clothing in front of other people. Khartini writes that this is deeply humiliating as it strikes at the roots of the mak nyahs’ identity as a woman. They are also put in the men’s detention areas, with their enlarged breasts exposed, thereby subjecting them to more humiliation, jeering and sexual violence by the inmates. 10% said that they were forced to wear men's clothes. 47% said that they were shamed in front of other people, whilst 46% said that they were jeered at or discriminated against. 9% said that they were beaten up. Other harassment faced were that they were asked to change religion, invited to have sex, asked to show their breasts and private parts, condemned and teased, and had their hair cut short. Khartini tells of the many occasions when family members of mak nyahs are taunted with questions like “Is this how you raise a son?” The behaviour of the Police indicated that they viewed mak nyahs as people with loose morals and did not treat them humanely.
Teh also revealed that about 28% of the respondents said that they had been caught by the Islamic religious authority. Of that, 96% said that they had been caught on three or fewer occasions. Only 3% had been caught between four and six times, and 1% had been caught ten times or more. The main reasons for being arrested by the Islamic authorities were for cross–dressing (50%), prostitution (32%), indecent behaviour (7%), during a police raid or operation (5%), loitering (5%), and having a beauty contest (3%). The complaints made against the Islamic authorities were similar to those against the police. They were also advised and counselled, and photographs were taken of them.
Most of those who were caught (93%) by the police and/or the Islamic authorities said that they would continue to cross–dress – only 7% said that they would stop.
The research carried out by Teh revealed that 74% of the 507 respondents had secondary school education, whilst only 3% had attended an institute of higher learning. 54% of the respondents were sex workers, and 73% had an income of less than RM1,000 per month. About 30% of them lived below or around the poverty line of RM450 per month.
Khartini notes that one of the biggest obstacles to mak nyahs achieving basic rights is society’s prejudice. Amongst others, they are discriminated in the areas of education, employment and health services. The discrimination in school from fellow students and teachers result in trauma and de–motivation. With poorer education results, their chances of getting well paid jobs in the non–entertainment sector are lessened. Mak nyahs also face difficulties whilst being interviewed for jobs. All these result in mak nyahs being forced to be sex workers. Mak nyahs also commonly work in karaokes and in other areas of the entertainment industry. They receive no insurance and do not benefit from the national employees provident fund scheme. They are often ignorant of their rights, grateful merely to have a job to survive. It comes as no surprise then that finding a permanent job is a top priority, followed by being able to use the women’s toilet and finding decent housing.
Living The Law
As can be seen, the experiences of transsexuals with the Law – religious or civil – have mostly been in the negative. But transsexuals have no choice except to engage with it – their mere being brings them into a collision course with the Law.
In the adjudication of disputes and the dispensation of justice, the role of Law is central. Philosophers of law, jurisprudents and legal theorists have long pondered and still do, on the nature of Law : principally on issues of what are the natures of authority, obligation, consent, freedom, responsibility, and how and why do rules work the way they do ? One must also ask – is Law part of the problem ?
As stated by Penner, Schiff and Nobles, “Law cannot be reduced to practices and knowledge of lawyers. Law is experienced and thought about by non–lawyers in quite different ways. ‘The Law’ as experienced by the socially excluded cannot be reduced to doctrines, cases and statutes; or rather to reduce it in this way is simply to edit out much of what others have experienced of law.”
Cotterrell views Law as having two faces : “as a mechanism of regulation of social life through distinct institutions and practices, and as a body of doctrine or ideas which can be logically or dogmatically interpreted and developed. This has ensured that in practice, if not always in theory, Law has had to be treated as a matter of social experience as well as abstract logic. Only in the law books can legal rules have a life of their own. Elsewhere their meaning and significance come from the way in which they are applied – if at all – to actual social situations and relationships.” In this article, I shall be dealing with the former ‘face’ of Law.
One area in which some transsexuals are seeking change is in the matter of their National Registration Identity Card (NRIC). All Malaysians are required to carry their NRICs with them at all times. Essential information about the holder is recorded on the NRIC. This includes the name, date of birth, address and sex. The last digit on the number of the NRIC would indicate the sex of the holder : odd numbers for males, and even numbers for females.
In Wong’s case, the Plaintiff was registered as a female in her Birth Certificate (BC) and NRIC. After undergoing a gender reassignment surgery on 8th April 2002, he applied to have both his BC and NRIC amended to reflect the change in his gender. The application was made on the ground that there was an error in the entry of the register book. The reason put forward was that the Plaintiff was born with two sex organs. Psychiatric evaluation carried out showed that mentally the Plaintiff was a male though physically female. Taking a positivist stance in deciding the case, the learned judge held that the grounds for amending the BC and NRIC were that there was an error or a mistake of fact in the sex of the Plaintiff as initially entered in the Register of Births and Deaths, and when the NRIC was issued. He did not find that evidence was adduced to support the fact alleged by the Plaintiff i.e. that he was born with two sex organs. He also held that as there was no express legislation to re–register the gender of a transsexual, he was unable to order the Registrar to make the necessary amendments to reflect the current gender of the Plaintiff after the gender reassignment surgery.
In contrast, there is the decision in JG’case. There, the Plaintiff was born male, and underwent gender reassignment surgery to become a female. The prayers were for a declaration that she be declared a female and that the Registration Department be directed to change the last digit of her identity card to a digit that reflects a female gender. In this case, the learned judge held that there was sufficient medical evidence to support her claim that she was now female.
In both these cases, the learned judges recognised that the criteria for determining the sex of the child are not specifically laid out for the relevant Government Department to follow. However, the generally accepted criteria that a court would consider, after assessing the medical evidence by of doctors, are the :
Gonadal factor (presence or absence of testes or ovaries);
Genital factor (including internal sex organs); and
On the other hand, the learned judge in JG’s case was more swayed by the dissenting judgement of Lord Justice Thorpe in Bellinger v. Bellinger when he noted, “.. that the psychological factor has not been given much prominence in the determination of this issue. He (Lord Thorpe) was of the view that psychological factor cannot be considered at birth because they do not yet manifest, they may become an overriding consideration subsequently as the individual develop.” The learned judge in JG’s case also cited the Australian case of AG for the Commonwealth v. Kevin & Ors ,”where the full Court of Appeal declined to follow Corbett v. Corbett and declared. ‘we should also treat biological factors as entirely secondary to psychological ones.’ He went on 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 bodies conform with that identification’; thus upholding the principle that ‘ we do not determine sex; in medicine we determine the sex in which it is best for the individual to live.”
The Living Oracles
It is clear that in deciding Wong’s and JG’s cases, the learned judges were not merely dealing with the Law. They were both conscious of the personal impact of their decision on the Plaintiffs, and on the greater sociological repercussions on the lives of transsexuals specifically.
Judges do not have an easy time of it – in colloquial terms, “they’re damned if they do, and damned if they don’t”. So what then, are the roles of judges in our legal system ?
For many, Blackstone’s description of judges as “the depositories of law, the living oracles” hold true. Gray has even gone so far as to say that statutes are merely a source of law. Their meaning and legal effect are only ascertained when cases are decided by the courts. It is the judicial decisions that constitute the law.
The nature of courts and the role of the Judiciary are important in a system like Malaysia’s, which subscribe to the doctrine of Separation of Powers. So the question to be asked is not ‘Is “judging in the shade of legislation ?”’, but how does the Judiciary balance the ‘rule by majority’ of an elected Legislature and Executive.
In one way, the independence of the judges is curbed by Parliamentary supremacy once Parliament became the dominant lawmaker. This is because court decisions may be, and are, reversed by legislation : “the twentieth–century English courts have created a body of administrative law which almost totally subordinates the judges to the discipline of an administrative state.”
How ‘objective’ is the judge ? To answer that question, we have to look critically at the tasks of the courts within a political order. If the view is taken that the main work of the courts is to adjudicate on disputes, we must first differentiate between the different levels of the courts.
In the lower and courts of first instance, there is evidence to support the view that dispute processing is more centred on other agencies, like the Police, the prosecutors and lawyers. Guilty pleas, judgements in default of appearance or the filing of defence, mediation and arbitration all enable the courts to play a more administrative role, rather than an adjudicative role. Judges in the appellate and apex courts, on the other hand, have to grapple with the uncertainty of the rules of the law, rather than factual issues.
It is also interesting to note the contribution of the courts to the social and political environment as part of the machinery of the state. They have the technical function of affirming, clarifying, reinforcing and interpreting doctrines or the rules of law. It also has the ideological function, as an agency of government and social control. It maintains ideologies “which legal doctrine shapes, reflects and reinforces and which serve to legitimise government and contribute to social order.”
Thus if the primary function of the courts is ideological, we can now see how and why in the hierarchical structure of the courts bound by the principle of stare decisis, the higher and appellate courts wield so much ideological influence when the number of cases adjudicated by them are smaller in number relative to those of the lower courts. We then have to examine “what capacity and opportunity they have to exert ideological influence. In this respect, the political and social status of different kinds of court, their relationship with other parts of the state apparatus, the bases of their authority and the nature of their ‘independence’ are central matters for consideration. This includes such matters as the values and occupational expectation that attach to judges and their work, and how far these values and expectations explain the kinds of decisions and interpretations that judges make.”
The difference in the concepts of ‘purpose’ and ‘function’ must be distinguished. Cotterrell points out that the ‘purpose’ – the intentions and motivations of judges, lawyers or other participants in judicial processes and those officially ascribed to courts and court procedures are analytically distinct from the ‘functions’ that can be attributed to courts by virtue of the contribution that their works makes to the political and social environment in which they exist.”
Jus Dicere and not Jus Dare ?
“Judges ought to remember that their office is jus dicere, and not jus dare : to interpret law, and not to make law or give law.” The words of Francis Bacon still find resonance with many. It would appear that the learned judge in Wong’s case subscribes to this view. This view has great significance in the common law systems of countries like England and Malaysia. The common law, as defined by Blackstone, is the “… general immemorial custom … from time to time declared in the decisions in the courts of justice.”
Lord Esher, M.R. agreed with Bacon when he said, “This is not the case, as has sometimes been suggested, of what is sometimes called judge–made law. There is, in fact, no such thing as judge–made law, for judges do not make law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable.”
Kirby points out that with along with the growth of parliamentary legislation, this declaratory view of law was also reinforced by the legal positivist views propounded by Bentham, Dicey and Austin, adding that the prevalent view then was that “Law was to be found in rules. Rules appeared in written constitutions, statutes and the reasons of judges of the higher courts. Judges declared what the law required. Their function was basically one of verbal analysis and application.”
This declaratory theory of judicial function was first challenged in the United States of America by American realists such as Pound, Holmes, Cardozo, Learned Hand and Karl Llewellyn. Upon close analysis of the common law, the American jurists found that there was more ‘judicial creativity’ than admitted. It was embedded in the nature of common law itself. As common law was made up of an array of decisions, lawyers had to strive to find precedents which were ‘on all fours’ with the case at hand. Judges, when they made decisions, had to justify them by following those precedents they were referred to by the lawyers. To bring some order to this rather chaotic form of justification, judges tried to formulate ‘rules’ in broader terms, so as to form a precedent which may more easily fit future cases. Law teachers (who were, in the past, practitioners themselves in the English Inns of Court) and text book writers then tried to form principles, which they documented.
It can now be seen that ‘judicial and textual selectivity’ created the modern law rather than ‘strict logic and high technique’. Judges were usually so busy deciding cases that the substantial re–conceptualisation and development of legal principle had to be left to later and to others.”
How does the doctrine of public policy fit into judicial decision making ? This doctrine may be traced to the Year Books in 1413. It was used to curb contractual or tortious remedies which were “injurious to the members of the public”, “against the public benefit” or “repugnant to the interests of the State”. It was deemed as being ingrained in the common law, seen as upholding the good of the community. The problem will then arise as to which is to prevail when a pre–existing law or strict logic are in opposition ?
The difficulty in defining or describing ‘public policy’ has led Burrough J. to say that public policy is a “very unruly horse and when once astride it, you never know where it will carry you.” There was the threat that in arguing it, one may be led away from the ‘sound’ law. It was also viewed that ‘public policy’ was never argued unless other points failed. However, ‘public policy’ continued to be used in arguments despite its amorphous nature, or perhaps it should be said, because of it. The very flexibility of ‘public policy’ arguments best fit the changing society – what may be against public policy in one era, may be viewed differently in another.
‘Public policy’ arguments show up the limits of strict logic when deciding cases, and opens up the scope for judicial creativity. Is this then, judicial activism – nothing more than judges responding to their own prejudices and values made up on an ad hoc basis? Or were judges trying to state the law, in new social circumstances using broad explanatory principles ?
In the context of Wong’s and JG’s cases, it is clear that when the legislators were drafting the Births and Deaths Registration Act 1957 and the National Registration Act 1959, the possibility of transsexuals who have undergone gender reassignment surgery must have seem as remote as men going to the moon. The learned judges in these two cases were dealing with new social circumstances. In JG’s case, the learned judge saw the injustice which would be visited on the Plaintiff if she were not allowed to have her NRIC amended to reflect her reassigned gender. The path he chose was that of social justice. This is clear when the learned judge in JG’s case acknowledged that, “Of course there are fears of uncertainty and the lack of a ‘clear and coherent policy’ as well as criteria or pre–condition to be satisfied before legal recognition can be given to alter the sex of a person... And in the end, like in most of these cases favouring the Corbett v. Corbett (supra) test, the (gauntlet) is thrown back at the legislative body to make the necessary laws for the Court to follow if Parliament so wishes. But then again, the legislative body would depend on medical opinions…But surely when it is based on medical evidence then the courts should play its part and grant relief where justice is due.” (emphasis mine)
The learned judge in Wong’s case was also sympathetic to the Plaintiff’s plight, and mindful of the repercussions of his decision, tried ameliorate it by indicating twice in his judgement that “… the case rest wholly on the peculiar set of facts in the instant case” – arguably legalese to indicate that this case should not be used as a precedent.
If we accept that judges make law, Baxi points out that we should be asking : what kind of law do judges make, how much of it should they make, in what manner are they made, within which self imposed limits should it be made, and to what willed results and with what tolerable accumulation of unintended results ?
Judicial activism is not looked on favourably in some jurisdictions. In Australia, judges who were perceived to be ‘activists’ were called “bogus”, an “unfaithful servant of the Constitution”, said to be “undermining democracy” and guilty of “plunging Australia into the abyss”. Why all the vitriolic name calling?
One of the reasons is that ‘activism’ carries different meanings, dependant on whether the party is adversely affected by it or not. Those on the ‘losing’ side may agree with the name calling abovementioned.
But the main reason is because a judge, especially an activist judge, as pointed out by Baxi, is aware that she wields great executive and legislative power, “and that this power and discretion have to be used militantly for the promotion of constitutional values... An activist judge knows that the constitutional value proclamations are an aspect of the ideology–maintenance apparatus of the state and are designed to enhance or reinforce the legitimacy of the ruling classes.” And so the scene could potentially be set for shifts in power between the Executive and the Legislative on one side, and the Judiciary on the other.
The courts in Malaysia are still very much positivist in their outlook. Their attempts at activism come in fits and starts. Looking at India, it is noted that the transformation of their Supreme Court in the 1980s was in synchronicity with political change. Sathe said that “the increased role of the Court was legitimised by the increasing pluralisation of the Indian polity, the need to have a counter–majoritarian check on democracy, and relative erosion of the high profile of the political leaders that prevailed before independence.”
The Supreme Court of India had to find innovative ways to deal with the ‘massification phenomena’, as Cappelletti calls it. Human actions and relationships have assumed a collective character, rather than those of one or a few individuals. What was at stake was ‘meta–rights’ – the collective social rights and duties of groups, classes and communities. These rights need active intervention for their realisation. The State, whether by using or the Law or otherwise, may not be tardy by omitting to act or worse, to oppress by acting in an unconstitutional manner. The learned judge in JG’s case in doing his part to dispense social justice, noted that in making his decision, he was merely giving “full effect to Article 5(1) of the Federal Constitution which states that ‘no person shall be deprived of his life or personal liberty save in accordance with law (emphasis added).”
One of the issues a more ‘activist’ judge or what the learned judge in JG’s case refers to as judges of the “progressive” school of thought, would have to grapple with is the problem of finding ‘the Golden Mean’ : “too little activism is a dangerous portent signifying under enforcement of constitutional notions of good governance, rights and justice. Too much activism results in over–enforcement of these ideals, imperilling the legitimacy and efficacy of judicial power.”
How then, does one re–conceptualise legitimacy ? Sathe does so by arguing that legitimacy means “(1) legal validity (2) a widely shared feeling among the people that they have a duty to obey the law (3) the actual obedience of the large by a large number of people.”
The Road Ahead
The important role of more ‘progressive’ or ‘activist’ judges in dispensing justice and giving recognition for the status of transsexuals in our society cannot be over–emphasised.
In the words of Bhagwati, this is because :
“The law is not an antique to be taken down, dusted, admired and put back on the shelf. It is a dynamic instrument fashioned by society for the purpose of eliminating friction and conflict and unless it secures social justice to the people, it will fail in its purpose and some day people will cast it off. It is therefore the duty of the judges to mould and develop the law in the right direction by creatively interpreting it so that it fulfils its social purpose and economic mission. The judges must realise that the law administered by them must be a powerful instrument for ensuring social justice to all and by social justice, I mean justice which is not limited to a fortunate few but which encompasses large sections of the have–nots and handicapped, law which brings about equitable distribution of the social material and political resources of the community.”
Ideally, the relevant legislation should be amended to allow changes to be recorded on official documents to reflect the reassigned gender of the transsexuals. Other laws and policies which discriminate on the grounds of gender should be amended. There are five principles to be considered specifically in the case of transsexuals :
Is the legislative instrument on offer motivated by a recognition of the need to correct a incorrect or premature assumption of sex or gender identity, subsequently discovered to have been invalid ?
Is the effect of the legislation inclusive of the needs of all transsexual people, including (but not limited to) pre and post operative people, those already married, legal minors, disabled people etc ?
Does the effect of the legislation specifically ensure that transsexual people in Malaysia are protected to the principles embodied in human rights conventions generally, and the International Bill of Gender Rights 1995 specifically ?
Does the legislation establish self–definition as the principal and overriding qualification for correcting a previously recorded sex/gender status ?
Does the legislation provide real privacy and recognition for people, or will it still enable exposure and consequent discrimination to be continued by other means?
Khartini notes, “Over the years, our politics as transsexuals has shifted considerably. We are no longer asking the law to recognise us simply as men and women – which is what the earlier generations of transsexuals fought for – rather, we want the law to recognise us simply as transmen and transwomen : a status that goes beyond the dichotomous structures of sex and gender roles recognised within and by the law. We define ourselves using a mobile logic based on self–identification rather than corporeality.”
Besides engaging with the law, equally important is the education of the general public on sexuality and the human rights. Government and non–governmental organisations should work together on this. It should be noted that the mak nyahs are not without agency in the matter of their lives. Khartini notes that in 1987, the mak nyahs came together to set up the Persatuan Mak Nyah Wilayah Perseketuan (Association of Transsexuals in FederalTerritory), Kuala Lumpur. It had members from all over Malaysia. They had a uniform, logo, they dialogued with the Government and the Police, received some funding from the Government, and fund raised for other organisations. Those were important steps taken, as it allowed the general society to view mak nyahs in more positive roles. However, after being in operation for three years, it was banned by religious intervention, ostensibly because it would encourage more mak nyahs into sex work. The Registrar of Societies also refused to allow the registration of that society.
Now, outreach programmes for the mak nyahs are carried out primarily by the PT Foundation. These programmes include programmes to empower and give awareness to transsexuals on health issues related to them, especially on HIV/AIDS. It also includes informing them of their legal, religious and social position in society, and how they could help themselves to improve their living standard, since many of them were sex workers. Working with the media is important, as their portrayals of transsexuals will go a long way towards changing societies’ perceptions of them.
As Malaysian citizens, transsexuals in Malaysia have the same rights as other Malaysians. They must not be treated as second class citizens. With some education and action plans being implemented by organisations like the PT Foundation, as Khartini notes – it is important for the mak nyahs to bear in mind, “We can !”
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Misra, G. and Chandiramani, R. (eds.) (2005) Sexuality, Gender and Rights : Exploring Theory And Practice In South And South East Asia, SAGE, India
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Sathe, S.P. (2002) Judicial Activism in India, OxfordUniversity Press
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Dworkin, R (1975) “Hard Cases”, 88 Harvard Law Review, 1057–1109
Neuborne, B. (2003) “The Supreme Court of India”, International Journal of Constitutional Law, Vol. 1, No. 3, July 01, 476–510
Teh, Y.K. (2001) “Mak Nyahs (Male Transsexuals) in Malaysia: The Influence of Culture and Religion on their Identity.” IJT 5,3 http://www.symposion.com/ijt/ijtvo05no03_04.htm (accessed on 26th October 2005).
Published Reports, Speeches or Other Paper
A speech delivered by Bhagwati, PN, (2002) Democratisation of Remedies and Access to Justice, First South Asian Regional Judicial Colloquium on Access to Justice, New Delhi, India, 1st–3rd November 2002, http://www.humanrightsinitiative.org/jc/papers/jc_2002/judges_papers/bhagwati.pdf (accessed on 20th October 2005)
A speech delivered by Lord Woolf of Barnes, (2003) The International Role of the Judiciary, 13th Commonwealth Law Conference, Melbourne, Australia, 16th April 2003, http://www.dca.gov.uk/judicial/speeches/lcj160403.htm (accessed on 31st August 2004)
 This name refers to Jessie Chung, a transsexual who sings for charity and is much involved in church work, having raised about RM500,000 for orphanages, single mothers and other organisations, see MY Loong, (5th October 2005) “This is one happy woman”, The Star.
 Member of Parliament, Democratic Action Party– Bukit Mertajam.
 My Kad is the new high–tech National Registration Identity Card.
  1 CLJ 622
 Wong’s case, op. cit. p. 646
 Originating Summons No. S1–21–34–2003. The yet to be published judgement is in 10 pages. I would like to express much appreciation to YA Dato’ James Foong for making this judgement available to the Bar Council Malaysia and to me prior to its publication.
 Kirby, M. (2004) Judicial Activism, Sweet & Maxwell, London, at p.1
 Unless stated otherwise, this section is essentially a summary of Khartini Slamah’s chapter “The Struggle To Be Ourselves, Neither Men Nor Women : Mak Nyahs In Malaysia” in Misra, G. and Chandiramani, R. (eds.) (2005) Sexuality, Gender and Rights : Exploring Theory And Practice In South And South East Asia, SAGE, India, pp98–111. I would like to express much appreciation to Sisters In Islam for making this material available to me at very short notice.
 Khartini, op. cit. p.99
 Khartini, op. cit. p.100
 Teh, Y.K. (2001) “Mak Nyahs (Male Transsexuals) in Malaysia: The Influence of Culture and Religion on their Identity.” IJT 5,3 http://www.symposion.com/ijt/ijtvo05no03_04.htm (accessed on 26th October 2005). This study is now published in a book, Teh, Y.K. (2002) The Mak Nyahs : Malaysian Male To Female Transsexuals, Eastern Universities Press, Singapore.
 Khartini, op. cit. p.100
 Wong’s case, ibid. p.633
 Now known as PT Foundation, Khartini, ibid., p. 106
 Khartini puts the number of mak nyahs now to be around at 30,000 – see Khartini, ibid. at p. 102.
 Penner, J., Schiff, D., and Nobles, R. (2002) “Approaches To Jurisprudence, Legal Theory, And The Philosophy Of Law” in Penner, J., Schiff, D., and Nobles, R. (eds) Introduction To Jurisprudence And Legal Theory : Commentary And Materials, Butterworths Lexis Nexis, pp.3–34, at p.5
 Penner, J., Schiff, D., and Nobles, R. ibid., at p.4.
 Cotterrell, R. (1992) The Sociology of Law : An Introduction (2nd Edition) Butterworths, London, Dublin, Edinburgh, at p.vii
  2 AER 33
  2 AER 593
  FAM CA 94
 JG’s case, ibid., pp. 7–8. It is interesting to note that the term ‘gender’ is used by both the judges’ in their discussion of the facts of the cases. The term ‘sex’ is generally accepted as referring to the biological makeup of a person. Usually, one is born a male or female. ‘Gender’, on the other hand, is a social construct. It is the characteristics of being feminine or masculine attributed to the sexes. So a person is considered feminine if one is inter alia, soft spoken, loving, and nurturing. Masculine traits include being aggressive, competitive, ambitious and tough. A closer look at the descriptive traits attributed as ‘feminine’ and ‘masculine’ will immediately reveal that both men and women have these traits – they are not exclusive to each sex. But that does not stop society associating the females with ‘feminine’ traits and the males with ‘masculine’ traits.
 Dawson, J.P. (1968) The Oracles of Law , Ann Arbor : University of MichiganLawSchool. Quoted in Cotterrell (1992), op.cit., at p.205
 Gray, J.C. (1921) The Nature and Sources of the Law, 2nd Edition, Boston Beacon Press rep. 1963, p.125. Quoted in Cotterrell (1992), op.cit.., at p.205
 Dworkin, R (1975) “Hard Cases”, 88 Harvard Law Review, 1057–1109, at 1058,
(accessed on 27th August 2004)
 Shapiro, M. (1981) Courts : A Comparative and Political Analysis, University of Chicago Press, Chicago, at p.1. Quoted in Cotterrell (1992), ibid., at pp.207–208
 Cotterrel (1992), ibid., pp.208–217
 Cotterrel (1992), ibid., pp.216
 Cotterrel (1992), ibid., p.216
 Cotterrel (1992), ibid., p.226
 Bacon, F. “Of Judicature”, Essays Civil and Moral. Quoted in Kirby, M., (2004) Judicial Activism : Authority, Principle And Policy In The Judicial Method, Sweet & Maxwell, London, at p.5
 See the learned judge’s views expressed in Wong’s case, ibid. pp. 636–639.
 Blackstone, W., (1809) Commentaries on the Laws of England, 15th Edition, T. Cadell and W. Davies, London, Vol. 1, p.73. Quoted in Kirby, M., op. cit., at p. 4
 Willis v. Baddeley  2 QB 324, at 326. Quoted in Kirby, op.cit., at p.6
 Kirby, op.cit., at p.6
 Kirby, op.cit., at p.21
 Kirby, op.cit., at pp.15–17
 Knight, W.S.M. (1922) “Public Policy in English Law” 38 Quarterly Review 207, at 207. Quoted in Kirby, op.cit., at p.21
 Knight, op.cit., 209. Quoted in Kirby, op.cit., at p.21
 Knight, ibid. at 208–209. Quoted in Kirby, op.cit., at p.21
 Richardson v. Mellish (1824) 2 Bing, 229, at 252
 per Burrough J. in Richardson v. Mellish, ibid., at 252. Quoted in Kirby, op. cit., at p. 22
 Kirby, op.cit., at pp.22–26
 JG’s case, p.9
 Wong’s case, ibid., at p. 646. At p. 625, the learned judge said that he would, “.. confine the reasoning and decision within the limits and contexts of the application.”
 Baxi, U. (1987) “On The Shame Of Not Being An Activist : Thoughts On Judicial Activism” in Tiruchelvam, N. and Coomaraswamy, R. (eds) The Role of the Judiciary in Plural Societies, Frances Printer (Publishers), London, pp.168–177, at p.168
 Kirby, op.cit., p.48
 Baxi (1987), op.cit., p.173
 Besides JG’s case, other notable cases include Adong Bin Kuwau & Ors v. Kerajaan Negeri Johor & Anor  2 MLJ 158 (upheld on appeal) and Sagong Bin Tasi  2 MLJ 591.
 Sathe, S.P. (2002) Judicial Activism in India, Oxford University Press, at p.6
 JG’s case, ibid., p. 9
 Baxi in Sathe, op.cit., at p. xix
 Sathe, op.cit., p254
 Part of a speech delivered by the Honourable Mr Justice PN Bhagwati entitled “Democratisation of Remedies and Access to Justice” at the First South Asian Regional Judicial Colloquium on Access to Justice, New Delhi, India, 1st –3rd November 2002, http://www.humanrightsinitiative.org/jc/papers/jc_2002/judges_papers/bhagwati.pdf (accessed on 20th October 2005)
 With minor modifications, these are the principles enunciated by Press for Change, http://www.pfc.org.uk/cgi/printit.pl?/campaign/princpls.htm (accessed on 20th October 2005)
 Khartini, ibid, p. 110
 Khartini, ibid, p. 106
 Teh, ibid. at p.
 Khartini, ibid, p. 106
*This paper was delivered at the 13th Malaysian Law Conference.