The Legal Status of Transgender and Transsexual Persons

The University of Hong Kong6-7 September 2013

Gender Identity and Law in Singapore

Terry KaanFaculty of Law

National University of Singapore

lawterry@nus.edu.sg

7 September 2013

The Social Context The Anomalous Asian Microcosm

100% urban, GDP per capita US$52,051 (2012)

Life expectancy 82.3 years (M79.9/F84.5)5.3m people (62% citizens) on 716km2 (HK

= 1,104km2)But great ethnic, religious & cultural

diversity held together by English common law legal system (British for 144 years)

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The Social Context Ethnicity:

Chinese 74%, Malays 13%, Indians 9%, Others 3% Religion:

None 17%, Buddhist 35%, Taoist 12%, Christianity 18.5% (Catholics 7.1%), Islam 15%, Hindu 5%

Main Language Spoken At Home:English 30%, Mandarin 36%, Chinese Dialects 17%

(Cantonese 4.1%), Malay 12%, Indian languages 4% Great food and cultural experience, but understandable

legislative caution where community perspectives and especially religious sensitivities involved

Dependence on (English) common law to fill in gaps – increasingly untenable given UK legislative developments 3

History

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M-to-F 30 July 1971 (first for gender dysphoria) F-to-M 20 October 1974 Medicalization: respected government surgeon

and team, carried out in Government hospital The Singapore way: no legislation, but nothing

banning it either. Preference for administrative processes if it can be managed that way. Solution: obtain Government approval and assurances, on grounds it is medically indicated

Similar light-touch regulatory approach in children born of artificial reproductive techniques: Bill clarifying status of such children presented in Parliament only this year

History

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Acceptance or Ignorance?Not much response, beyond prurient curiosity - no

discussion of conceptual implications – because viewed as medical procedure to “correct” a “medical problem”?

Newspapers focusing marriage plans of SRS patients – taken for granted – marriage thought uncontroversial

Easing the Transition Significant measure was Government agreement that

National Registration Office should “correct” gender entry on national identity card (IC)

Amended IC status accepted by Registry of MarriagesBut birth certificate cannot be changed (Cossey v UK

[1990], Rees v UK (1987) followed)

Legal Complications

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All good - until 1990: Lim Ying v Eric Hiok[1991] SGHC 135.Woman petitioned for the annulment of her

marriage on the grounds that her husband was biologically born a woman, was therefore unable to consummate the marriage, and that she would never have consented had she known that her husband had F-to-M SRS.

Held:The statement of gender on the IC is not conclusive“A person biologically a female with an artificial

penis, after surgery and psychologically a male, must, for purposes of contracting a monogamous marriage of one man and one woman ... be regarded as a “woman”.”

Legal Complications

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English decision in Corbett v Corbett followed[1971] P 83: “what if a 50 year old father with

children undergoes SRS –” it would follow that if a 50-year-old male transsexual, married and the father of children, underwent the operation, he would then have to be regarded in law as a female and capable of ‘marrying’ a man. The results would be nothing if not bizzare.”

Court however accepted legality of SRSAlso accepted legality of amendment to ICOnly effect was to make impossible marriage to

which one or both parties are SRS transgender persons

Parliamentary Intervention

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In 1996, the Women’s Charter amended to make clear:At marriage, the parties must be a man and a womanBut “a person who has undergone a sex re-assignment

procedure shall be identified as being of the sex to which the person has been re-assigned”

Marriages involving such persons solemnized in Singapore or elsewhere are to be legally recognized

The IC is prima facie evidence of the sex of the partyUnfortunately for Mr Hiok, no retrospective validation

Reading between the lines:Makes marriage between two SRS transgender

persons possible, so long as their ‘re-assigned sex” are opposite (they could previously, but sub rosa ‘wrong’ genders!)

Unanswered Questions

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No application to muslim marriages:Administration of Muslim Law Act provides for the

application of customary Islamic private law to marriage

Clear that amendment to Women’s Charter does not affect muslim marriage law

SRS re-assignment not recognized by muslim law, and therefore likewise such marriages

But can Singapore muslims opt-out and contract civil marriage under Women’s Charter?

In neighbouring Malaysia, prohibition against SRS for gender dysphoria is the subject of a national fatwa (official religious decree) and has force of law for the majority Muslims – no opting out permitted

Unanswered Questions

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In Malaysia, Islamic shariah courts have jurisdiction matrimonial law: state shariah courts have forcibly annulled “unlawful marriage”

At federal level, mixed signals from the Malaysian courts relating to whether National Registration Office may be compelled to make gender correction for SRS persons

Back in SingaporeNo explicit legislative framework – NRO reliance

on medical opinion predicated on “complete” re-assignment surgery – Women’s Charter requires “has undergone a sex re-assignment procedure”

Impact of gender-specific laws in Singapore – e.g. National Service obligation for men

The Legal Status of Transgender and Transsexual Persons

The University of Hong Kong6-7 September 2013

Gender Identity and Law in Singapore

Terry KaanFaculty of Law

National University of Singapore

lawterry@nus.edu.sg

7 September 2013