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Disciplining Trans* Bodies: some cases from Malaysia and India

Suggested citation format:

Kang, Akhil. 2015. Disciplining Trans* Bodies: some cases from Malaysia and India. Orinam.net
Retrieved on mm/dd/yyyy from http://orinam.net/disciplining-trans-bodies-malaysia-india


In a recent (2015) Malay High Court decision [1], the court rejected the application of a trans* individual, Vasudevan Ramoo, to change their gender from male to female in the identity card records. Citing a 2013 Court of Appeal’s decision, Kristie Chan [2] (which in turn had relied on the 1971 U.K. case Corbett v. Corbett and 2003 case of Bellinger v. Bellinger) the High Court of Kuala Lumpur ruled that the applicant failed to qualify the 4 factors test, i.e., chromosomal, gonadal, genital and psychological factors. Despite looking at reports documenting Vasudevan’s gender reassignment surgery and doctor’s medical examination not finding any secondary male sex characteristics, the court declared those reports to be too ‘skeletal’.

The ordeal of compelling National Registration Department to change gender(s) for the purpose of identity card is not new in the Malaysian court. In a 2006 case [3], the High Court granted the change in gender from male to female to the applicant. The court cited the same U.K. case and rejected its 4 factor reasoning saying that too many times the ‘psychological’ factor is ignored.However, similar court orders as Vasudevan have resulted for Aleesha Farhana [4] and Wong Chiou Yong, wherein also, their applications were denied. The rights of trans* individuals in Malaysia also saw a tragic turn where nine individuals were jailed and fined for “posing as a woman” [5] despite a 2014 Court of Appeal’s decision [6] of declaring a statute of penalising cross-dressing in public as unconstitutional.

Muniswer Poniah, who represented and argued for Vasudevan says that the U.K. decisions relied upon by the court are outdated. He says that the court’s requirement on medical evidence places an undue burden on applicants and the medical requirements as set by the Kristie Chan case results in reluctance by medical practitioners, thus making records difficult to obtain. Highlighting the problem that trans* individuals face in Malaysia, Hema Letchamanan, Ph.D. candidate at the University of Cambridge, points out how the lives and decisions of the people from the community also get shaped by their respective religion. She says that gender confirmation surgery is not at all permitted or recognized for Muslim trans* persons and non-Muslim trans* persons get prosecuted under the civil law and Minor Offences Act, 1955 which penalises individuals for ‘disorderly’ and ‘indecent behaviour’ [7]. In fact, the Human Rights Watch Report [8] documenting human right abuses against trans* persons in Malaysia also points out several ways in which local religious and federal laws persecute individuals based on their sexual orientation and gender identity, creating an atmosphere of prohibition and incarceration.

Much similar to what Muniswer observes, a striking observation arising from the Malaysian courts is a heavy reliance on pathologization of the trans* body. Even in the 2006 case (where gender change in the identity card was allowed), reliance was placed on a psychiatrist, a surgeon in paediatric surgery and paediatric urology and a consultant in obstetrics and gynaecology, and an oncologist’s ‘expert’ report. The obsession with defining and diagnosing bodies inevitably ends up privileging certain forms of bodied individuals who are almost required by the law to undergo surgeries which again re-affirm sex stereotypes. A constant back and forth between the medical records and alleged pathological conditions almost becomes a way of disciplining the body by the court and the law [9].

In India, one would point out the NALSA judgment [10, 11], which says that mandatory Sex Reassignment Surgery (SRS) is completely irrelevant in deciding a transgender person’s right to recognize their own gender. In fact the Supreme Court makes a mention of the Malaysian Court’s 2006 case too, noting that the ‘biological test’ as assigned by Corbett (the U.K. case) must be completely rejected. But I wonder, how effective is this ground-breaking ‘break’ from reliance on SRS. The brilliance of the judgment is seen for the individuals who could hold discussions with respective state bodies and demand effective implementation of NALSA’s guidelines. So much does the judgment mean to many that I saw a trans* individual walking around with the physical copy of the entire judgment [113 pages] while using public transport, to reclaim their voice. At the same time, I recall a trans* person’s narrative in a conference in Bangalore where they recounted how when the judgment came out, everyone in the community gathered to celebrate and discuss the judgment. But as they were discussing the multiple categories as amply illustrated by the court, many of the people gathered started fighting amongst each other; fighting over who exactly has an entitlement under NALSA and who doesn’t. What struck me the most was when they said how this could be ‘one of the ways in which state institutions, under the garb of emancipating us, are trying to create a division amongst us’.

The way in which lived realities get objectively boxed before the court of law, is not a new thing. In fact, NALSA despite its empowering directions isn’t exactly the first case to make an attempt at conceptualizing the rights of a trans* individual. In the 2011 case of Faizan Siddique v. Sashastra Seema Bal [12], the Delhi High Court dealt with the legality of denial of Faizan’s candidature to Sashastra Seema Bal’s post of Constable (GD) Female because of allegedly being physically unfit. Although the court ruled in favour of the petitioner calling the Bal’s decision to be ‘arbitrary, irrational and illegal’, what is quite similar to the Malaysian courts is how judges become fact finders, who very intricately scrutinize medical records of the individual involved. The judgment documents paragraphs and paragraphs of the petitioner’s “condition” of “deformed genital”, and her “hermaphroditism”. Or when one looks at the case of Pinki Pramanik v. State of West Bengal and Another [13], where the court examines the alleged rape charges against the petitioner by dissecting the anatomy of Pinki and deciding whether there was a possibility of penetration or not.

The obsession with the body transcends the courts and becomes a reference point across other institutions as well. Karthik Bittu, a human rights activist with the Telangana Hijra Intersex Transgender Samiti (THITS) recounts an incident, while being interviewed during the Telangana Pride, of a trans* individual who after being wrongly detained was stripped naked and poked and prodded just to physically examine their body. There are many other cases (both documented and undocumented, ones which never come to the public demography) wherein sexual minorities face custodial violence of a kind that – more than often – involves violence over their bodies. Even Bittu himself was phone called by the police officials later who asked what exactly is happening with his body. Vyjayanti Vasanta Mogli, a human rights activist, also with THITS,  still faces difficulty in completion of procedures for publishing the notice in the government gazette, after applying for an application for change in gender, because of their insistence on producing a legitimate set of Sex Reassignment Surgery papers. This, despite repeatedly reminding them of NALSA’s orders.

By defining particular categories and particular forms of bodies, the way in which rights would be conceptualized legally to exclude many bodies and lives is a dangerous path. I draw an analogy to Kalpana Kannabiran’s documentation of decades of rape cases in India’s Supreme Court [14] wherein the judicial discourse around the rape victims actively involves almost pornographic account of the act of rape and describes the subject of ‘woman’ as a docile honourable woman who needs the help that is being given to her; how it ends up creating this poster of the right victim. Similarly if one indulges in the legal exercise of medicalization of trans* bodies, then it implies a legally valid criteria of how only certain bodied individuals could claim those rights. One could only hope that the cases that do come up before the court of law after NALSA do not end up holding a set standard of who should be entitled to these affirmative actions and who shouldn’t.


References

[1]  Lim, Ida. 2015. trans* fails court bid to change identity to woman, judge says ‘hands tied’. Malay Mail Online. http://www.themalaymailonline.com/malaysia/article/trans*-fails-court-bid-to-change-identity-to-woman-judge-says-hands-ti

[2] Kristie Chan v. National Registration Department Director General. 2011. Full text online at http://www.kehakiman.gov.my/directory/judgment/file/A-01-84-2011.pdf The Court of Appeals is higher up than the High Courts in the judiciary hierarchy in Malaysia.

[3] JG v. PengarahJabatan Pendaftaran Negara. 2005. Full text online at http://www.malaysianbar.org.my/selected_judgements/jg_v_pengarah_jabatan_pendaftaran_negara_2005_hckl.html

[4] Teik,Pang Khee. 2001. Court must allow Aleesha Farhana to change her name and gender. Loyarburok.  http://www.loyarburok.com/2011/08/01/court-aleesha-farhana-change-gender/

[5]  Human Rights Watch. 2015. Malaysia: Court Convicts 9 Transgender Women: Abolish Laws Against ‘Cross-Dressing’ http://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-trans*-women

[6]  Khamis and Ors. v. State Government of Negeri Sembilan and Ors. 2012.
http://www.kehakiman.gov.my/directory/judgment/file/N-01-498-11-2012_jud_penuh.pdf

[7] Section 21 of Minor Offences Act, 1955, online at http://www.agc.gov.my/Akta/Vol.%207/Act%20336.pdf

[8] Human Rights Watch. 2014. “I’m Scared to be a Woman”: Human Rights Abuses Against Transgender People in Malaysia. Online at http://www.hrw.org/sites/default/files/reports/malaysia0914_ForUpload.pdf

[9]  Ezie, Chinyere. 2011. Deconstructing the Body: trans* and Intersex Identities and Sex Discrimination – The Need for Strict Scrutiny: 20(1) Columbia Journal of Gender and Law 141, 154. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589519

[10] National Legal Services Authority v. Union of India, AIR 2014 SC 1863. 2014. Full text online at http://orinam.net/377/wp-content/uploads/2014/04/Judgement_Nalsa_Transgenderrights.pdf

[11] At ¶20, the Hon’ble Supreme Court of India writes, “Each person’s self-defined sexual orientation and gender identity is integral of their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.”

[12] Faizan Siddiqui v. Sashastra Seema Bal. 2011. Full text online at http://indiankanoon.org/doc/176981719/

[13] Pinki Pramanik v. State Of West Bengal & Anr. 2014. Full text online at http://indiankanoon.org/doc/149648431/

[14] Kalpana Kannabiran and Vasanth Kannabiran. 2002. De-Eroticizing Assault: Essays On Modesty, Honour And Power p. 104. Bhatkal and Sen.

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