Neither a She nor a He
30 June 2014
Trevor Padasian examines two recent landmark cases on the third gender.
Two unprecedented decisions by the highest courts of Australia and India have given judicial recognition to the “third gender”, an increasingly growing class of people who identify neither with males nor with females.
The issue of a “third gender” is not new. According to the 13th century English jurist, Henri de Bracton:
“Mankind may also be classified in another way: male, female, or hermaphrodite”. In addition, a “hermaphrodite is classed with male or female according to the predominance of the sexual organs”.1
Underlining the topicality of the “transgender” issue, the cover story of the 9 June 2014 US edition of Time, the US news magazine, was entitled “The Transgender Tipping Point”. Time describes “transgender people” as “those who identify with a gender other than the sex they were “assigned at birth””.
NSW REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES v NORRIE2
In this case, the High Court of Australia (“HCA”) ruled on 2 April 2014 that the Births, Deaths and Marriages Registration Act, 1995 (“BDRM Act”) of the Australian State of New South Wales (“NSW”) permits a person in a third category of sex, that is, neither a male nor a female, to be registered as “non-specific”.
Norrie May-Welby (“Norrie”) was born in Scotland with male reproductive organs. After migrating to Australia, Norrie had undergone a “sex affirmation procedure”. A “sex affirmation procedure” is defined in section 32A of the BDRM Act as a “surgical procedure involving the alteration of a person’s reproductive organs carried out (a) for the purpose of assisting a person to be considered a member of the opposite sex, or (b) to correct or eliminate ambiguities relating to the sex of the person”.
As the surgery did not resolve Norrie’s sexual ambiguity, Norrie applied to the NSW Registrar of Births, Deaths and Marriages (“Registrar”) for Norrie’s sex to be registered as “non-specific”. It is significant that Norrie’s application was supported by two medical practitioners. In 2010, the Registrar initially approved Norrie’s application, recognising Norrie as being neither male nor female and recording Norrie’s sex as “not specified” in a Recognised Details (Change of Sex) Certificate and a Change of Name Certificate.
However, the Registrar subsequently rescinded its approval and advised Norrie that the Recognised Details (Change of Sex) Certificate was invalid. The Registrar re-issued the Change of Name Certificate recording Norrie’s sex as “not stated”. Norrie applied to the NSW Administrative Decisions Tribunal (“Tribunal”) for a review of the Registrar’s decision. Norrie’s application for a review as well as his appeal to the appeal panel of the Tribunal were dismissed.
However, Norrie’s appeal to the NSW Court of Appeal (“NSW CA”) was allowed. The NSW CA set aside the Tribunal’s decision and sent the matter back to the Tribunal to enable it to make findings of fact as to how Norrie’s sex should be recorded in the Register.
The Registrar appealed to the HCA. The HCA, whose panel included the Chief Justice of Australia, dismissed the appeal and held that the Registrar had the power to record in the Register that Norrie’s sex was “non-specific”. The HCA held that the BDRM Act “does not require that people who, having undergone a sex affirmation procedure, remain of indeterminate sex – that is, neither male nor female – must be registered, inaccurately, as one or the other.” Thus, persons in such a third category of sex may register their gender as “non-specific”.
Thus, the HCA dismissed the Registrar’s appeal and set aside the NSW CA’s order that the matter be sent back to the Tribunal. It was not necessary for the Tribunal to make any further findings of fact.
NATIONAL LEGAL SERVICES AUTHORITY v UNION OF INDIA AND OTHERS3
On 15 April 2014, barely two weeks after the decision in Norrie, the Supreme Court of India (“SCI”) accorded recognition to “Hijras” or transgenders (“TGs”, singular “TG”) as a third gender, distinct from the traditionally binary genders of male and female. As a distinct socio-religious and cultural group, TGs were held to be entitled to the constitutional rights that all Indians have under the Indian Constitution.
In their comprehensive and well-reasoned judgments, Justices Radhakrishnan (since retired) and Sikri set out the compelling case for the SCI’s ground-breaking decision.
The main issue which the SCI had to decide was whether the TGs, who are neither males nor females, have the right to be identified and categorised as a “third gender”. Related to this issue was the issue of whether a person who was born as a male with predominantly female orientation (or vice-versa) has a right to get himself/herself to be recognised as a female/male in accordance with his/her choice, after having undergone operational procedure changes to his/her sex as well.
The SCI described the TG as being an umbrella term for “persons whose gender identity, gender expression or behaviour does not conform to their biological sex”. According to the SCI, the expression includes Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis and the like, a group of people having a strong historical presence in India in the context of Hindu mythology and religious texts. However, the SCI clarified that, for the purpose of its decision, the word “TGs” does not include gay men, lesbians, bisexuals and cross-dressers within its scope.
Although the TGs within the SCI’s definition had historically played a prominent role and were treated with great respect, their status declined drastically with the onset of colonial rule from the 18th century onwards, particularly with the enactment of the Criminal Tribes Act, 1871 (repealed in 1947) and section 377 of the Indian Penal Code which in effect criminalised anal sex, an offence perceived to be associated with TGs.
The SCI highlighted the trauma, agony and pain suffered by the TG community and accepted submissions by the petitioner and interveners detailing the ridicule and abuse of TGs, who were sidelined as untouchables and outcasts. By their very nature of being neither male nor female, the TGs are deprived of social and cultural participation in and access to education, health care, employment and public places. In addition, they face multiple forms of discrimination and oppression.
The SCI held that this was in breach of the TGs’ basic constitutional rights under the Indian Constitution, namely Article 14 (equality before the law and equal protection of laws), Articles 15 and 16 (prohibition against gender bias and gender based discrimination); Article 19(1) (freedom of speech and expression); and Article 21 (protection of life and personal liberty). These Articles use the expression “person” or “citizen” or “sex”, all of which are “gender neutral” and refer to human beings. Thus, they include within their purview TGs and are not restricted to the male or female genders.
The SCI said that gender identity is an “integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.” The SCI found support for its stand in Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 (“ICCPR”) which recognise that every human being has the inherent right to live and Article 17 of the ICCPR which states that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family or unlawful attacks on his honour and reputation.
In addition, the SCI also relied on the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (“Yogyakarta Principles”) which were developed by the International Commission of Jurists, the International Service for Human Rights and human rights experts. The Yogyakarta Principles address a broad range of human rights standards and their application to issues of sexual orientation and gender identity (including the right to universal enjoyment of all human rights; right to equality and non-discrimination; and right to recognition before the law).
In the course of its judgment, the SCI reviewed a number of foreign judgments and foreign legislation pertaining to gender identity. Regarding the former, it rejected the traditional approach laid down by the English case of Corbett v Corbett  1 All ER 33, and applied in Bellinger v Bellinger  2 All ER 593 (HL), which stated that the law should adopt the chromosomal, gonadal and genital tests (“the Biological Test”).
The SCI rejected the Biological Test and adopted the Psychological Test as applied by the New Zealand case of Attorney-General v Otahuhu Family Court  1 NZLR 603 and the Australian cases of Secretary, Department Social Security v “SRA”  43 FCR 299, Re Kevin (Validity of Marriage of Transsexual)  Fam CA 1074 and A.B. v Western Australia  HCA 42. The SCI also referred to the Australian Court of Appeal case of Norrie v NSW Registrar of Births, Deaths and Marriages  NSWCA 145 and the Malaysian case of Re J-G, JG v Pengarah Jabatan Pendaftaran Negara  4 CLJ 710. The SCI remarked that in Re J-G, James Foong J (as he then was) had applied the Psychological Test when he observed that:
“This led Lord Justice Thorpe in Bellinger v Bellinger  1 All ER 311, in the Court of Appeal to give a dissenting judgment where he felt, like I do, that the psychological factor has not (been) given much prominence in the determination of this issue. He 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(s).”
The SCI also discussed foreign legislation pertaining to gender identity, notably the UK General Recommendation Act, 2004 which accords legal recognition to the acquired gender of a person; the Australian Sex Discrimination Act, 1984; and Article 22, section 3 of the German Civil Statutes Act, the ground-breaking legislation which provides that “If a child can be assigned to neither the female nor the male sex then the child has to be named without specification.”4
The SCI opined that there is a “growing recognition that the true measure of development of a nation is not economic growth; it is human dignity.” It said that the Indian Constitution had provided rights for TGs and it was time for the courts to recognise this and extend and interpret the Indian Constitution in such a way so as to ensure a dignified life for the TGs.
In addition to the declaration that the TGs be treated as a “third gender”, the SCI also made ancillary orders, amongst others, directing the Central Government of India and State Governments to take steps to treat the TGs as socially and educationally backward classes of citizens; allow them admission to educational institutions and public appointments; operate HIV sero-surveillance centres catering for TGs; address problems of fear, shame, suicidal tendencies faced by TGs; provide medical care to TGs in hospitals; initiate social welfare schemes for betterment of TGs; and take measures to enable TGs to regain their respect and place in society which they once enjoyed.
Although the concepts of equality before the law, equal protection of laws, freedom of speech and expression and protection of life and personal liberty are all enshrined in the Federal Constitution, individuals who identify themselves as part of the “third gender” as well as transsexuals, have struggled to gain recognition of their rights in Malaysia.
Sex-change declaration applications, such as Wong Chiou Yong v Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara  1 CLJ 622, Aleesha Farhana Abdul Aziz (unreported) and Kristie Chan v Ketua Pengarah Jabatan Pendaftaran Negara  4 CLJ 627 (Court of Appeal), have been unsuccessful, with Re J-G being the sole exception.5
In 2012, Adam Shazrul bin Mohammad Yusoff and three others, all transgender Malaysians, were prosecuted under Shariah law based on accusations of dressing as women. Their application for judicial review of the law on the ground of unconstitutionality was dismissed by the Seremban High Court. The appeal to the Court of Appeal by three of the litigants is pending.
It is hoped that the Malaysian Courts will draw inspiration from the landmark cases from Australia and India to break new ground both in recognizing a third gender as well as allowing sex-change declaration applications. That would indeed be a true measure of Malaysia’s development as a nation.
- De Legibus et Consuetudinibus Angliae [On the Laws and Customs of England]: paragraphs 031, 032, Volume 2, pages 31-32.
-  HCA 11.
- Writ Petition (Civil) No. 400 of 2012.
- There does not appear to be any legislation elsewhere in the world equivalent to the German legislation.
- Wong Chiou Yong and Re: J-G were discussed in “Can he be a she and she, a he?” in Legal Insights Issue 1/2006.