Primer: Transgenderism and Its Legal Implications in Malaysia

Notice and Copyright –

1. This post is intended as a preliminary draft of and lays the foundation for my intended article to be submitted for publication in the local law journals.

2. Obviously, submission’s not going to happen until I sort out issues with regards to consequent disclosure of my identity. Notwithstanding my doubt that any of Spot’s visitors are members of the Malaysian Bar, it’s still a factor I have to consider.

3. Spot will try to keep the inner academic in check when writing this. Nevertheless, the shallow and those with short-attention spans might like to click elsewhere now. I recommend this for today’s entertainment.

Flavour of the Month

For those who quite understandably shun the local news as a temper/sanity-preservation measure, here’s the nutshell. Local girl Jessie was born a biological man but has since undergone gender-reassignment surgery to “become” a woman.

Her recent wedding to a man was splashed all over the local media. This prompted all manner of know-it-alls to helpfully label her union as a same-sex marriage and declare the marriage invalid, illegal, sensational etc.

Well-meaning parties have discussed her situation with a primary focus on homosexuality - implying that either Jessie or her husband, or both, are gay.

Like. HEllo? SHUT UP!!

Seriously folks, you’re not helping. The ignorance is already crippling, let’s not encourage paralysis.

I, on the other hand, am clever. So listen to me.

Note to self – Do NOT forget to remove that line in the final article


PART ONE: THE SEX BITS

1. The majority of transsexuals are NOT homosexual.

Most gay people don’t actually want to physically BE the opposite sex. Their preoccupation with physical appearance is more a matter of achieving beauty than one of expressing gender identity. They are men who love men, women who love women.(Actually, I'd replace "love" with "like to have sex with")

How it’s different for transsexuals is that their gender expression (how they feel “on the inside”) is the opposite gender from their biological sex (what’s on the outside, their anatomy). To oversimplify, it’s X being trapped in Y’s body. The misery of pre-operative transsexuals is a life led as mismatched halves, and surgery is the only way to psychologically and physically unify the whole.

What’s really interesting is that it is very common for transsexuals to themselves be homophobic. Brandon Teena, whose transgendered life as a pre-operative transsexual was the subject of the movie Boys Don’t Cry, was reported to have angrily denied that he was a dyke.

2. A transgendered person is not necessarily a transsexual

The term “transgender” is the umbrella group that includes transsexualism as one of many subgroups. The most accepted definition of transgender is -

People who were assigned a gender, usually at birth and based on their genitals, but who feel that this is a false or incomplete description of themselves.

Notice that the definition itself begs further definition.

Jessie is transgendered because she was born with male anatomy, but felt that the male gender was a false description of who she was. Specifically, Jessie is transsexual.

Martine Rothblatt is an American lawyer and author of The Apartheid of Sex. She was born Martin, married a woman but subsequently lived full-time as a woman together with her wife and their biological children, who call her Dad. Ms. Rothblatt does not desire to change sex and thinks of herself as both man and woman. SO not a transsexual.

Neither is she intersexual or what is more colourfully known as a hermaphrodite. Her biological anatomy is purely male, it’s her gender identity that is both male and female.

Quite simply, in view of the complexity of definition, she is transgendered.

3. Transvestism is NOT the same as transsexualism

Transvestism is classified (whether fairly or not) as a sexual disorder. A transvestite is a person who doesn’t actually want to be the other sex, identifies as the birth sex but gets sexual gratification from wearing the opposite sex’s clothing. This fetish usually extends to being sexual with persons of the same sex.

Cross-dressing is not the same as transvestism. Cross-dressing is more an issue of psychological identity as opposed to the purely sexual nature of transvestism. The point that clothing makes for one is to express one's gender identity; for the other, is for sexual gratification/seduction.

4. Homosexuals – Plain Vanilla?

Yawn.

So what’s it like to be a horse in a herd of zebra? In view of the spectrum of gender identity we just went through, it seems so much easier to be just plain ol’ gay.

Gays are men who love men, women who love women. Right?

Not quite.

Leslie Feinberg’s largely autobiographical Stone Butch Blues tells of the life of Jess, who was born female and came out in her youth as a butch only to discover later that it wasn’t the same as being a lesbian. In fact lesbians shunned him. He then thought her problems would be solved if she lived as a man, with the help of hormone therapy but stopping short of full gender-reassignment surgery. (The mixing of “he” and “she” here is deliberate)

Eventually, Jess realises that in living as a “he-she”, he had lost herself. The book’s close sees Jess living as a cross-dressing, masculine, transgendered lesbian who doesn’t mind whether or not people refer to him as “she” or “he”. Whatever you’re comfortable with.

Voyeurs that we are, the reader will not be able to restrain from analysing Jess’s relationship with Ruth at the end of the book. Ruth is your typical drag queen. A cross-dressing man with no aspirations for re-assignment. As their friendship deepens, Jess and Ruth start to have sexual feelings for each other. But how is this possible? Both had assumed themselves to be homosexual. But here there were, one looking like a man but actually a woman, the other looking like a woman but actually a man.

So. What are they? Gay? Straight? Confused? I sure as heck was. And so were poor Jess and Ruth.

Another example.


Loren Cameron is a photographer who was born a woman and is now…well... Again, words are poor servants of definition. Loren refers to himself as "he".

In his groundbreaking published collection of photographs, Body Alchemy, Loren’s self-portraits are mind-boggling. Born a woman, he’s undergone a double mastectomy, takes male hormones and has a physique that would launch a thousand gym memberships. As for his face, he looks like a bearded Gary Oldman.

And as if the visual contrast between his musculature and his yes, vagina, weren’t stunning enough, imagine the pictures of him and his lover - Kayt. Kayt appears to be a hardcore duracell bunny of the gym world, and looks like what Ralph Macchio’s Karate Kid could have been had he chugged a few gallons of testosterone before filming. The book quotes Kayt as follows -

I don't feel comfortable just saying that I'm with a man. Yet it's such a complex thing to go into when someone simply asks if I have a girlfriend.

Again. What are they? More importantly, what do you call their relationship?

So it really isn't as simple as saying "I'm gay", because sometimes, that just isn't true, despite what's happening between two physical bodies with the same genitals (whether original, or a product of surgery).


5. The inadequacies of a dichotomous language

It should be clear by now that the biggest obstacle in the way of tackling and understanding transgender issues is language. With regards to English, at least. It is less of a problem in the case of Bahasa Malaysia/Indonesia and all the Chinese dialects. There is no “he” or “she” equivalent.

The English language has limited the ways of being to just two categories in most cases.

Male/Man vs Female/Woman.

Homosexual vs Heterosexual.

Pink vs Blue.

Complexity is time-consuming; understanding - too hard. So much easier to accept surface-level, over-simplified, “back and white” ideas.

The language spanner also becomes highly apparent when trying to distinguish between sex and gender. Obviously, they’re not the same things.

For me, sex refers to biological anatomy and chromosomal composition, i.e. the body’s sex.

Gender is the expression of the mind/heart/soul’s sex, and manifests as where you are on the masculine-feminine spectrum.

As far as I’ve researched, a person’s sexual identity is primarily discussed within a framework that revolves around biological sex and gender expression.

6. Moving Beyond Dichotomies

I feel that in order for us to fully comprehend transgenderism and overcome the limitations of language, further parameters need to be added to the framework. As society begins to realise that there’s more to homo, hetero and bi than once thought, the general idea of transgender becomes very useful almost as a catch-all for the grey ones that we can’t quite get out words around.

Never mind, too difficult, let’s just call them “others”. Lain-lain.

But if most people turn out to be in that grey area (if they can come to accept themselves as such), do the words homosexual and heterosexual become meaningless? Are Jess and Ruth heterosexual? I’m willing to bet that most straights would be very hesitant to say yes.

What about Loren and Kayt? I’m not sure, but let’s assume that Kayt has a surgically attached penis. Penis + vagina = heterosexual? Looking at their very respectively male presentation, I don't think the heteros would agree. On the other hand I doubt that the gay community would be comfortable calling them “people like us” either.

What about Joshua, Jessie's husband? Since Jessie was once a man (chromosomally she still is), is Joshua therefore having homosexual sex with her? I must stress that this is a rhetorical question. I am not in the least bit interested to know, personally.

The examples of Jessie, Joshua, Martine, Jess, Ruth, Loren and Kayt clearly challenge the limitations in the concepts of homosexual and heterosexual when we try to describe the nature of their intimate relationships.

Don’t avoid the issue by sniffing – why should we bother defining it anyway?

We MUST, because those relationships are a fundamental expression of sexuality. Without examining the nature of the relationships, we will never understand sexual identity. Without understanding, compassion will never take root.

If you don't understand, how do you truly accept their humanity?

Sexuality has two components. Firstly, it’s how one perceives one’s self as a sexual being. That perception is intrinsically linked to one’s genitals. This is why transsexuals are compelled to surgically match their anatomy to their gender. It’s the only way to feel complete in terms of sexual capacity.

The second component is the act of intercourse itself. Obviously. But what needs to be emphasised is that where the first component is focussed on the individual’s sense of being, this second component is very dependent on the characteristics of that person’s sex partner.

It’s about how you like your sex. Specifically, what sort of genitals you’re attracted to and which you’d prefer being mashed up against you during sexual activity. If both sets of genitals are of the same variety, you’re in a homosexual relationship. If they’re different, you’re in a heterosexual relationship.

And that’s what I think the terms homosexual and heterosexual should be limited to; as a description of the nature of the relationship as a reflection of sexuality. Not the persons.

A person’s gender is either male, female or transgender. Your biological sex is fixed at birth. That's history. What ought to be given a second chance of classification is gender. And the only person who can determine your gender is yourself. Not the doctor who spanks your butt at birth. Not the colour of the blanket swaddling your newborn self.

Which brings to me to Part 2: The Law Bits.

But that's for another day.