Question : Discuss critically the constitutional impact and significance of the

following decided case with special emphasis on the personal liberty.

Malayan Law Journal Unreported/2005/Volume /J.G. v PENGARAH JABATAN
PENDAFTARAN NEGARA - [2005] MLJU 366 - 25 May 2005

[2005] MLJU 366

Re JG, J.G v PENGARAH JABAAN PENDAFARAN NEGARA [2006]

1 MLJ 9
HIGH COURT (KUALA LUMPUR)
JAMES FOONG,J
SAMAN PEMULA NO S1-21-34-2003
25 May 2005

FACTS AND COURT DECISION

The facts of this case is that the plaintiff by the name had undergone a gender reassignment at Thailand Siroros Hospital on the 21 st of May 1996. Plaintiff was born a
male. After the surgery she/he applied for his/her name to be change to JG from
BGHL due to successful gender re-assignment. Upon applying, only the plaintiffs
name was able to be change, the gender cannot be change which means the plaintiff
will still be identified as male through his Identification Card as the numbers are odd
numbers. Apart from that the plaintiff too worked as a model and it was difficult for
the plaintiff due to being embarrassed and had to disclose his identity The plaintiff
too disclosed that she/he has a boyfriend and have plans on getting married and still
they cannot be married due to gender identification that decline the marriage to be
legal. In its decision of May 2006, it is commonly being accepted by the court
according to the advice by the medicine professional that to assess and determine sex
of a person is through four basic factors must take into account: 1) chromosomal
factor, (2) gonadal factor; presence of testes or ovaries, (3) genital factor; including
internal sex organs, (4) psychological factor. They have claimed that the plaintiff was
a female. The doctors had considered that the plaintiff had experienced sex change
and as the psychological behaviour as female. , the court has power under the
Specific Relief Act 1950 to grant a declaration for the first prayer. For the second

prayer, it about the defendant exercising the administrative power under s6(2)(o) of
the National Registration act 1959 to perform alteration and correction in the
register

and identity card. This will leave impact to the art 5(1) of Federal

Constitution which states that no person shall be deprived of his life or personal
liberty save in accordance with law. The Court grants her, the first prayer of the
declaration under Specific Relief Act 1950 and the second prayer for the alteration
and correction of registration and identity card under section 6(2) of the National
Registration act 1959.Finally, the Court held that the plaintiff, who born as a male
and underwent gender reassign surgery is entitled for changes of her identity
registry.
CONSTITUTIONAL ISSUE
1. Whether the plaintiff could be legally recognised as female by the Court?
2. Whether the registration Department be directed to change the plaintiffs last
digit of the plaintiffs card to a digit of an even numbers which is recognised as
a female gender?

Grounds of Judgement
The issue is that whether to be accorded recognition as per current genders? The
judge of this case where Judge James Foong declared that the court has power under
Specific relief Act 1950 to grant. He learned from a case Wong Chiou Yong (p) v
Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara [2005] 2 AMR 415 in.
However the grounds was not accepted when the decision of this case was delivered.
In the case of Wong Chiou Yong, the fact are quite similar to this case, it was only
opposite where Mr Justice Singham had to deal with a female who wanted to be a
male. The case Wong Chiou Yong (p) v Pendaftar Besar/Ketua Pengarah Jabatan
Pendaftaran Negara [2005] 2 AMR 415 followed Corbett v Corbett 9 otherwise
Ashley) (No 1) [1970] 2 ALL ER 33.The case is accepted.
According to Justice Ormrod J, who presided over Corbett v Corbett, the law should
adopt, in the first place, the first three of the doctors criteria, i.e. the chromosomal,
gonadal and genital tests, and, if all three are congruent, determine the sex for the
purpose of marriage accordingly, and ignore any operative intervention. The court
reasoned that the factors to assess and determine the sex of a person are

chromosomal factor, gonadal factor (presence of testes and ovaries) and genital
factor including internal sex organs and, psychological factor.
Medical evidence
The plaintiff presented the testimony of three doctors certifying that the plaintiff is
mentally and physically a female.
a) Dr.Rabin Gonzaga, a consultant psychiatrist from Gleneagles Intan Medical
Centre, Kuala Lumpur certifies that the plaintiff does not suffer from any
mental illness or psychological disability and in that the plaintiff is a woman.
b) Dr Chia Wee Van, a consultant surgeon in paediatric urology also confirmed
that he has examined the plaintiff and found that the surgery in which the
plaintiff had undergone 8 years before the trial has completely change the sex
of the plaintiff and has been living as a completely woman. Not only does the
mental and psychological perspective as a woman but the physical of the
plaintiff as the plaintiffs genitalia and body structure are woman
c) The third doctor is Dr.Wong Kok Kien who is a consultant in obstetrics,
gynaecology and oncology with Gleneagles Intan Medical Centre. Dr Wong
has examined and confirmed the plaintiff has undergone a gender reassignment operation from a male to female. The plaintiff has a female
genitalia and vaginal and he is now a she, female.
This led Lord Justice Thorpe in Bellinger v Bellinger [2002] 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 factors cannot be considered at birth
because they do not yet manifest, they may become an overriding consideration
subsequently as the individual develops. This view, in England at least, remained a
minority view when the House of Lords upheld the majority decision of the Court of
Appeal

in Bellinger

Bellinger [2003]

All

ER

593.

Justice VT Singham, though such matters are sensitive in nature, the courts would
not abdicate and shrink from its duty and will endeavour to confine its reasoning
and decision within the limits and contexts of the application. Corbett view of sex as

immutably fixed at birth and had rejected the applicants petition for a change of
identity documents.

The doctors examined both the physical and psychological status of the plaintiff and
found that the plaintiff was a female. In A.G for the Commonwealth v Kevin & Ors
(2003) FAM CA 94 in which the Court of Appeal declined to follow corbett with
reasons to see or treat the biological factors as secondary. The Court acknowledged
the decision from Wong Chiou Yong on a different jurisdiction which had closely
followed the Corbett view of sex as immutably fixed at birth under the principle we
do not determine sex; in medicine we determine sex in which it is best for the
individual to live. Therefore she/he was granted relief as conclude that the
psychological status of the individual was dispositive in determining gender. The
High Court held that when the plaintiff brought (3) doctors certifying that she was
both mentally and physically a female.
Lord Nicholls however set out in the case of Bellinger v Bellinger that the test which
was carried in Corbett v Corbett in continuing adherence to the test which is to
determine the sex of the person.
In regards to the second issue was whether the registration Department be directed
to change the plaintiffs last digit of the plaintiffs Mycard or the National (NRIC) to a
digit of an even numbers which is recognised as a female gender? The Malaysian
National Registration Identity Card Number (abbreviated NRIC No.) is a unique
series of digits issued to Malaysian citizens and permanent residents for
identification, indexing and tracking purposes. In the identity card the defendant
explained that the change was permitted under regulation 14 that was made under
Registration Act 1960 but it can only approves the change of name and not the
gender change as it has to follow the persons birth certificate. In this issue it was
granted toward the plaintiff on her request as she is entitled to be a female and it was
against Article 5(1) of the Federal Constitution for he has qiven the titled to be a
woman and therefore Article 5 applies to her.
Under section 6(2)(0) of the National Registration Act 1959 to make a correction and
alteration in the register and the identity card. It concerns only an administrative
exercise and the defendant is empowered by the law. Article 5(1) of the Federal

Constitution states that no person shall be deprived of his life or personal liberty
save in accordance with law.
Therefore in this case as it was granted the gender to the plaintiff it must also be
granted for the digits in the Identification Card to be change. The court granted the
request of the plaintiff as to give the full respect to the Federal Constitution.

LEGAL PRINCIPLE/RULE OF LAW

In regard to the given case of Re JG, J.G v PENGARAH JABAAN PENDAFARAN
NEGARA [2006] 1 MLJ 9.The court has followed the case in followed Corbett v
Corbett 9 otherwise Ashley) (No 1) [1970] 2 ALL ER 33 which the law has to adopt in
the first place, the first three doctors .It is generally accepted by the courts following
the advice of the medical profession that to assess and determine the sex of a person,
4 basic criteria must be considered:. In this test, theres four factors must take into
account which (1)Chromosomal factor, (2) Gonadal factor- presence of testes or
ovaries, (3) Genital factor including internal sex organs and (4) Psychological
factor. After considering the specific situation of the plaintiff, in which she
considered herself a woman and lived like one, the Court granted the petition under
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. Besides, to have the court
to grant relief ones application, he must be medically proven by qualified medical
professionals and undergo sexual reassignment surgery. And if only all this is proven,
the court ruled the defendant to alter and do some adjustment in the plaintiff registry
and Identification card (NRIC) under section 6(2)(0) of National Registration Act
1959.
All issues in the case of JG v Pengarah Jabatan Pendaftaran Negara emphasize on
special liberty with accordance of Article 5 of Federal Constitution whereby, no one
shall be deprived of his life or personal liberty save on accordance with law.