Constitutional Law: Fundamental liberties - Right to life - Change of gender in identity card - Female seeking declaration to be recognised as a male following gender reassignment surgery - Test to be applied to establish gender - Whether chromosomal requirement part of Malaysian jurisprudence - Whether matter should be viewed from physiological perspective - Whether plaintiff had a constitutional right to be accorded judicial recognition as a male - Federal Constitution, art 5(1)

This was an application by the plaintiff, who was born a woman but had since undergone gender reassignment surgery, seeking for a declaration that the plaintiff was a male and to direct the defendant to recognise and give effect to such declaration. The main issues to be determined were, inter alia, whether the Court of Appeal decision in Kristie Chan v. Ketua Pengarah Jabatan Pendaftaran Negara ("Kristie Chan case") endorsed the chromosomal requirement to establish gender as part of Malaysian jurisprudence; whether in establishing gender, the matter should be viewed from the physiological perspective; whether the plaintiff satisfied the criteria in Kristie Chan's case to be declared a male; and whether the plaintiff had a constitutional right to be accorded judicial recognition as a male.

Held (allowing the plaintiff's application with no order as to costs):

(1) From a reading of the Kristie Chan case, the Court of Appeal did not state unequivocally that it was endorsing the chromosomal requirement to establish gender to be regarded as part of Malaysian jurisprudence. Hence, the Court of Appeal in the Kristie Chan case, left open the possibility that in an appropriate case and depending on the quality and credibility of the medical evidence and other supporting documents, the court could make a determination and grant relevant declaration sought with regard to the reassigned gender. (paras 61-62)

(2) This was a genuine application by a person who had been certified by the medical profession to be a male. In the circumstances, the chromosomal requirement was archaic and should be discarded because it was impossible for a biological male to have female chromosomes and vice versa. In this instance, the better view was that which had been encapsulated in the approach taken in the Australian case of The Attorney-General For The Commonwealth v. "Kevin And Jennifer" & Human Rights And Equal Opportunity Commission (Intervener), where the court emphasised the importance of abandoning the chromosomal factor and highlighting the imperative need to view the matter from the physiological perspective. (paras 64-65)

(3) A declaration to recognise the applicant's reassigned gender would contribute to certainty and avoid confusion and quite possibly, conflict as well. In the present case, the plaintiff was for all intents and purposes, a male person. It had been established that the medical profession had unambiguously determined that the plaintiff was physically, anatomically and psychologically a male. Furthermore, there was no legal impediment or restriction to grant a declaration to legally recognise the plaintiff as a male person and for his National Registration Identity Card to be changed. Consequently, the threshold or criteria that was set out in the Kristie Chan case was satisfied. (paras 66, 69 & 71)

(4) The plaintiff in this case had a precious constitutional right to life under art 5(1) of the Federal Constitution and the concept of "life" under the said article must necessarily encompass the plaintiff's right to live with dignity as a male and be legally accorded the judicial recognition as a male. (para 72)

Case(s) referred to:

A v. Chief Constable Of West Yorkshire Police And Another [2004] 2 FCR 160 (refd)

Bellinger v. Bellinger [2003] 2 AC 467 (refd)

Corbett v. Corbett [1970] 2 All ER 33 (refd)

Datuk Syed Kechik Syed Mohamed v. Government of Malaysia & Anor [1978] 1 MLRA 504; [1979] 2 MLJ 101 (refd)

Fau En Ji v. Ketua Pengarah Jabatan Pendaftaran Negara [2014] MLRHU 1097; [2015] 1 CLJ 803 (refd)

Goodwin v. The United Kingdom [2002] 2 FCR 577 (refd)

Hamalainen v. Finland [2015] 1 FCR 379 (refd)

Ibeneweka v. Egbuna [1964] 1 WLR 219 (refd)

J-G v. Pengarah Jabatan Pendaftaran Negara [2005] 1 MLRH 760; [2006] 1 MLJ 90; [2005] 4 CLJ 710; [2005] 6 AMR 257 (refd)

Kristie Chan v. Ketua Pengarah Jabatan Pendaftaran Negara [2013] 1 MLRA 113; [2013] 4 CLJ 627 (folld)

Sundralingam v. Ramanathan Chettiar [1967] 1 MLRA 97; [1967] 2 MLJ 211 (refd)

Tan Sri Haji Othman Saat v. Mohamed Ismail [1982] 1 MLRA 496; [1982] 2 MLJ 177 (refd)

The Attorney-General For The Commonwealth v. "Kevin And Jennifer" & Human Rights And Equal Opportunity Commission (Intervener) [2003] FamCA 94 (refd)

Wong Chiou Yong v. Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara [2004] 3 MLRH 127; [2005] 1 MLJ 551; [2005] 1 CLJ 622; [2005] 2 AMR 415 (refd)

Legislation referred to:

Births And Deaths Registration Act 1957 , s 27(3)

European Convention on Human Rights, arts 8, 12

Federal Constitution, art 5(1)

National Registration Act 1959, s 6(2)

Rules of Court 2012, O 53 r 2(2)

Specific Relief Act 1950, s 41

Other(s) referred to:

Professor Dr Shad Saleem Faruqi, Document of Destiny - The Constitution of the Federation of Malaysia, p 206

Counsel:

For the plaintiff: William Lim (Muhammad Izzat Md Jonid with him); M/s Tan Aik Kiong & Co

For the defendant: Mohamad Rizal Fadzil, SFC