Jeffrey Jessie: Recognising Transexuals by Honey Tan Lay Ean

Thursday, 17 November 2005 05:00pm

JEFFREYJESSIE
[1]
: RECOGNISING TRANSSEXUALS
Honey Tan Lay Ean
Non-Governmental Individual
Malaysia
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
Home Minister
New Straits Times, 20th October 2005

Introduction
That was the reply of the Home Minister to Ms Chong Engs
[2]
call in Parliament to
amend the law so that transsexuals who have undergone sex change operations be
allowed to have their My Kads
[3]
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 (Wongs case).
[4]
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.
[5]
(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
[6]
(JGs case), the learned judge of the High Court in Kuala
Lumpur, in dealing with similar facts, decided in favour of allowing the Plaintiffs
application. The Defendant was directed to change the last digit of the Plaintiffs
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
[7]
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
[8]

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.
[9]
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.
[10]
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.
[11]

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 womens work, as men who like men,
etc
[12]

The definition by others is more restrictive, as can be seen in Wongs 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.
[13]

When Teh carried out his study around 1998, he quoted IKHLAS (Pink Triangle)
[14]
,
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.
[15]
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 Gods 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.
Tehs 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 Tehs 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 womens 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 mens 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
societys 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
womens 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 ?
[16]
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.
[17]

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.
[18]
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 Wongs case, the Plaintiff was registered as a female in her Birth Certificate (BC)
and NRIC. After undergoing a gender reassignment surgery on 8
th
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 JGcase. 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 :
1. Chromosomal factor;
2. Gonadal factor (presence or absence of testes or ovaries);
3. Genital factor (including internal sex organs); and
4. Psychological factor
The learned judge in Wongs case was swayed by the cases of Corbett v. Corbette
[19]

and Bellinger v. Bellinger
[20]
in accepting the first three criteria over the fourth.
On the other hand, the learned judge in JGs 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 JGs case
also cited the Australian case of AG for the Commonwealth v. Kevin & Ors
[21]
,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 persons 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.
[22]

The Living Oracles
It is clear that in deciding Wongs and JGs 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, theyre damned if they
do, and damned if they dont. So what then, are the roles of judges in our legal
system ?
For many, Blackstones description of judges as the depositories of law, the living
oracles hold true.
[23]
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.
[24]

The nature of courts and the role of the Judiciary are important in a system like
Malaysias, which subscribe to the doctrine of Separation of Powers. So the question
to be asked is not Is judging in the shade of legislation ?,
[25]
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.
[26]

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.
[27]

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.
[28]

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.
[29]

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.
[30]

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.
[31]
The words of Francis Bacon still
find resonance with many. It would appear that the learned judge in Wongs case
subscribes to this view.
[32]
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.
[33]

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.
[34]

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.
[35]

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.
[36]
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.
[37]

How does the doctrine of public policy fit into judicial decision making ? This
doctrine may be traced to the Year Books in 1413.
[38]
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.
[39]
It was deemed as being
ingrained in the common law, seen as upholding the good of the community.
[40]
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.
[41]
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.
[42]
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 ?
[43]

In the context of Wongs and JGs 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 JGs 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 JGs 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 opinionsBut
surely when it is based on medical evidence then the courts should play its part and
grant relief where justice is due.
[44]
(emphasis mine)
The learned judge in Wongs case was also sympathetic to the Plaintiffs 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
[45]
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 ?
[46]

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.
[47]
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.
[48]
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.
[49]
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.
[50]

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 JGs 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).
[51]

One of the issues a more activist judge or what the learned judge in JGs 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.
[52]

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.
[53]

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.
[54]

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 :
1. 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 ?
2. 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 ?
3. 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 ?
4. Does the legislation establish self-definition as the principal and overriding
qualification for correcting a previously recorded sex/gender status ?
5. 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?
[55]

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.
[56]

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.
[57]

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.
[58]
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 !
[59]

REFERENCES
Books
1. Cotterrell, R. (1992) The Sociology of Law : An Introduction (2
nd
Edition)
Butterworths, London, Dublin, Edinburgh
2. Kirby, M. (2004) Judicial Activism Sweet & Maxwell, London
3. Misra, G. and Chandiramani, R. (eds.) (2005) Sexuality, Gender and Rights :
Exploring Theory And Practice In South And South East Asia, SAGE, India
4. Penner, J., Schiff, D., and Nobles, R. (eds) Introduction To Jurisprudence And
Legal Theory : Commentary And Materials, Butterworths Lexis Nexis
5. Sathe, S.P. (2002) Judicial Activism in India, OxfordUniversity Press
6. Tiruchelvam, N. and Coomaraswamy, R. (eds) (1987) The Role of the
Judiciary in Plural Societies, Frances Printer (Publishers), London
Articles
1. Dworkin, R (1975) Hard Cases, 88 Harvard Law Review, 1057-1109
2. Neuborne, B. (2003) The Supreme Court of India, International Journal of
Constitutional Law, Vol. 1, No. 3, July 01, 476-510
3. 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
1. 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, 1
st
-3
rd
November 2002,
http://www.humanrightsinitiative.org/jc/papers/jc_2002/judges_papers/bhagw
ati.pdf (accessed on 20th October 2005)
2. A speech delivered by Lord Woolf of Barnes, (2003) The International Role of
the Judiciary, 13
th
Commonwealth Law Conference, Melbourne, Australia,
16
th
April 2003, http://www.dca.gov.uk/judicial/speeches/lcj160403.htm
(accessed on 31
st
August 2004)

[1] 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.
[2] Member of Parliament, Democratic Action Party- Bukit Mertajam.
[3] My Kad is the new high-tech National Registration Identity Card.
[4] [2005] 1 CLJ 622
[5] Wongs case, op. cit. p. 646
[6] 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.
[7] Kirby, M. (2004) Judicial Activism, Sweet & Maxwell, London, at p.1
[8] Unless stated otherwise, this section is essentially a summary of Khartini
Slamahs 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.
[9] Khartini, op. cit. p.99
[10] Khartini, op. cit. p.100
[11] 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.
[12] Khartini, op. cit. p.100
[13] Wongs case, ibid. p.633
[14] Now known as PT Foundation, Khartini, ibid., p. 106
[15] Khartini puts the number of mak nyahs now to be around at 30,000 see
Khartini, ibid. at p. 102.
[16] 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
[17] Penner, J., Schiff, D., and Nobles, R. ibid., at p.4.
[18] Cotterrell, R. (1992) The Sociology of Law : An Introduction (2
nd
Edition)
Butterworths, London, Dublin, Edinburgh, at p.vii
[19] [1970] 2 AER 33
[20] [2003] 2 AER 593
[21] [2003] FAM CA 94
[22] JGs 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.
[23] Dawson, J.P. (1968) The Oracles of Law , Ann Arbor : University of
MichiganLawSchool. Quoted in Cotterrell (1992), op.cit., at p.205
[24] Gray, J.C. (1921) The Nature and Sources of the Law, 2
nd
Edition, Boston
Beacon Press rep. 1963, p.125. Quoted in Cotterrell (1992), op.cit.., at p.205
[25] Dworkin, R (1975) Hard Cases, 88 Harvard Law Review, 1057-1109, at
1058,
(accessed on 27
th
August 2004)
[26] 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
[27] Cotterrel (1992), ibid., pp.208-217
[28] Cotterrel (1992), ibid., pp.216
[29] Cotterrel (1992), ibid., p.216
[30] Cotterrel (1992), ibid., p.226
[31] 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
[32] See the learned judges views expressed in Wongs case, ibid. pp. 636-639.
[33] Blackstone, W., (1809) Commentaries on the Laws of England, 15
th
Edition, T.
Cadell and W. Davies, London, Vol. 1, p.73. Quoted in Kirby, M., op. cit., at p. 4
[34] Willis v. Baddeley [1892] 2 QB 324, at 326. Quoted in Kirby, op.cit., at p.6
[35] Kirby, op.cit., at p.6
[36] Kirby, op.cit., at p.21
[37] Kirby, op.cit., at pp.15-17
[38] Knight, W.S.M. (1922) Public Policy in English Law 38 Quarterly Review
207, at 207. Quoted in Kirby, op.cit., at p.21
[39] Knight, op.cit., 209. Quoted in Kirby, op.cit., at p.21
[40] Knight, ibid. at 208-209. Quoted in Kirby, op.cit., at p.21
[41] Richardson v. Mellish (1824) 2 Bing, 229, at 252
[42] per Burrough J. in Richardson v. Mellish, ibid., at 252. Quoted in Kirby, op.
cit., at p. 22
[43] Kirby, op.cit., at pp.22-26
[44] JGs case, p.9
[45] Wongs 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.
[46] 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
[47] Kirby, op.cit., p.48
[48] Baxi (1987), op.cit., p.173
[49] Besides JGs case, other notable cases include Adong Bin Kuwau & Ors v.
Kerajaan Negeri Johor & Anor [1998] 2 MLJ 158 (upheld on appeal) and Sagong
Bin Tasi [2002] 2 MLJ 591.
[50] Sathe, S.P. (2002) Judicial Activism in India, Oxford University Press, at p.6
[51] JGs case, ibid., p. 9
[52] Baxi in Sathe, op.cit., at p. xix
[53] Sathe, op.cit., p254
[54] 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, 1
st
-3
rd

November 2002,
http://www.humanrightsinitiative.org/jc/papers/jc_2002/judges_papers/bhagwati.pdf
(accessed on 20th October 2005)
[55] 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)
[56] Khartini, ibid, p. 110
[57] Khartini, ibid, p. 106
[58] Teh, ibid. at p.
[59] Khartini, ibid, p. 106
*This paper was delivered at the 13th Malaysian Law Conference.