Since the 1980s, trans people in Malaysia have used the courts to gain legal recognition. In several of these cases, Article 5 of the Federal Constitution, which enshrines the right to personal liberty, was used by the judges to rule in favour of transgender people. 

In unsuccessful cases, Corbett vs Corbett and Bellinger vs Bellinger were used by the courts as precedents. Based on these cited cases the four criteria required to determine one’s ‘sex’ to warrant the change were chromosomes, gonads, genital, and psychological factors. This approach is not only outdated, but also inconsistent with facts on sex and gender. Neither chromosomes nor genitals determine our gender identity.

In Kristie Chan’s case (2013), the Court of Appeal held that those who seek to obtain a court order must submit the following evidence from experts in Malaysia. 

• Definition of gender 
• What makes a person a male or female 
• Whether sex reassignment surgery changes a person’s gender to warrant a change of the gender description in their identity card

In 2016, Justice Nantha Balan relied on Article 5 of the Federal Constitution, which grants the liberty of a person to find a ruling in favour of transgender people. The judge departed from Corbett v Corbett and followed the approach taken by an Australian case – Attorney General for the Commonwealth v Ken and Others, where

“the court emphasised the importance of abandoning the chromosomal factor and highlighting the imperative need to view the matter from the physiological and physiological perspective.” 

The judge then ruled,

“The Plaintiff has a precious constitutional right to life under Article 5(1) of the Federal Constitution and the concept of ‘life’ under Article 5 must necessarily encompass the Plaintiff’s right to live with dignity as a male and be legally accorded judicial recognition as a male.”

The decision by Justice Nantha Balan was set aside by the Court of Appeal in 2017 following an appeal by the National Registration Department (NRD).

In the appeal, the State Federal Counsel argued that  “A medical report was issued after he did the gender reassignment operation in Thailand… The report didn’t say anything about chromosomes, just physical condition” despite the High Court Judge’s clarification in his decision that ‘the chromosomal requirement is archaic and should be discarded because scientifically, it is impossible for a biological male to have female chromosomes and vice versa.’ Most importantly, while chromosomes are diverse, they do not determine gender identity. 

In a report by SUHAKAM, 20 respondents had tried to change their name and/or gender marker on their identification card, and only six were successful. Of the six successful respondents, two succeeded in changing their name, one changed their gender marker, and three changed both their name and gender marker.

Legal gender recognition cases in Malaysia

Year	Case	Outcome
Nov 2004	Wong Chiou Yong (trans man) vs NRD, Perak Case was heard at the Ipoh High Court Sought declaration to amend or correct the birth certificate and National Registry Card (IC)	Application dismissed
Nov 2005	JG (trans woman) vs NRD, Wilayah Persekutuan Case was heard at the Kuala Lumpur High Court before Justice James Foong  Sought declaration to direct NRD to change the last digit and gender marker on her IC	Successful. Allowed to change her name, gender marker, and last digit on IC
2011	Aleesha Farhana (trans woman) vs NRD, Terengganu Case was heard at the Terengganu High Court before Justice Datuk Mohd Yazid Mustafa Sought declaration to change her name and gender marker on her IC after it was rejected by the NRD.	Application dismissed
Sept 2014	KF (trans man) vs NRD, Wilayah Persekutuan Case was heard in KL high court before Justice Zaleha Yusof sought declaration to quash the decision made by the NRD; to amend his name, gender marker and the last digit of his identification card number	Application dismissed with cost
Oct 2015	Kristie Chan (trans woman) vs NRD, Perak Case was heard in the Ipoh High Court before Judicial Commissioner Ridwan Ibrahim. The ruling was made in chambers. Sought declaration to order the Director General of the NRD to change her gender identity in her IC	Application dismissed with cost
June 2015	Maha Laksmi Rajoo (trans woman) vs NRD, Wilayah Persekutuan  Case was heard in Kuala Lumpur High Court before Justice Asmabi Mohamad	Application dismissed with cost
July 2016	Tan (trans man) vs NRD, Wilayah Persekutuan Case was heard in Kuala Lumpur High Court before Justice Nathan Balan Sought declaration to change the last digit of the plaintiff’s identity card to be changed to reflect the male gender.	Successful. Decision was overturned in January 2017 following an appeal by the NRD