Court of appeal overturns ruling on sex change case, NRD wins appeal

The government today won its appeal to set aside a High Court's order which allowed a woman who had a sex change to be declared a man and to change the last digit of her identity card (IC) to reflect the male gender.

A three-member panel of the Court of Appeal chaired by Datuk Seri Zakaria Sam allowed the appeal by the Director-General of the National Registration Department after finding that there was merit in the appeal.

"Therefore, the order of the High Court is set aside. Basically, we agreed with the submission by the Senior Federal Counsel. We will write the grounds of judgment and there is no order as to costs," said Justice Zakaria.

The other two judges on the panel were justices Datuk Ahmadi Asnawi and Datuk Hasnah Mohammed Hashim.

On July 18, last year the Kuala Lumpur High Court granted an originating summons and declaration filed by the woman that she be declared a man, the D-G be directed to change the woman's name that appeared in her IC, and the D-G be directed to change the last digit in the respondent's IC to a digit that reflects the male gender.

The High Court judge held that the woman had a precious constitutional right to life under Article 5(1) of the Federal Constitution and the concept of "life" under the Article must necessarily encompass the plaintiff's right to live with dignity as a male and be legally accorded judicial recognition as a male.

The 30-year-old woman underwent gender replacement surgery in Bangkok, Thailand on Oct 13, 2009, following which she made the application to the NRD for changes to be made to the particulars in her IC but it was rejected.

Earlier, Senior Federal Counsel Mohamad Rizal Fadzil submmitted that the respondent (the woman) did not provide her medical report on chromosome particulars which determined XY for male and XX for female.

He argued that the respondent had produced her medical report on internal sex organ and psychological factors but failed to adduce on chromosome details to determine the gender.

"The respondent did not also provide a medical report before she underwent the sex change," he said, adding that the woman had a duty to show all the evidence on her sexual conditions and gender re-assigment to support her application to change the particulars in her IC.

Lawyer William Lim asked the panel to maintain the High Court's order to avoid confusion as in the IC, his client's name was a woman, but she had undergone sex change to male and physically she also acted as a man. - BERNAMA