Background[]

After Singapore legalised sex reassignment surgery in 1973, the Government instituted a policy directive at the National Registration Department to enable post-operative transgender people to change the legal gender stated on their national registration identity cards (NRIC) (but not their birth certificates) and other documents which flowed from that, such as their passports.

The Registry of Marriages implicitly recognised marriages involving a sex change patient, as it required only an identity card to prove the different genders of the couple. There was no specific provision in the statutes which allowed the Registrar to do this, so it existed probably only at the level of a policy directive. However, for over 20 years, this policy seemed to have operated smoothly.

However, on 13 June 1991, a female Malaysian babysitter named Lim Ying, then aged 30, created legal history when her application to the High Court to have her marriage annulled succeeded. Lim claimed that she did not know her husband had undergone a sex-change operation. Judicial commissioner K S Rajah declared her marriage to Eric Hiok Kian Ming null and void. Lim discovered her husband's secret, that he was assigned female at birth, only on their wedding night when they attempted to have sex. Hiok, who appeared very masculine, disagreed, arguing that Lim knew beforehand that he was a transman. They could not have penetrative sexual intercourse because he had not been fitted with a penile implant. Judicial commissioner Rajah ruled that a person's sex was fixed at birth in the eyes of the law. The legal poser that the High Court had to tackle was whether the marriage was void right from the start, or whether it was just voidable. Rajah's judgment declared that the marriage was void from the very beginning.

Bill introduced[]

To circumvent this ruling and enable post-operative transgender Singaporeans to get married legally, a Bill was presented before Parliament in 1996 to amend the Women's Charter to read[1],[2]:

(Under Part III: SOLEMNIZATION OF MARRIAGES)[3]

Avoidance of marriages between persons of same sex.[4]
12.-(1) A marriage solemnized in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female shall be void. [30/96]
(2) It is hereby declared that, subject to sections 5, 9, 10, 11 and 22, a marriage solemnized in Singapore or elsewhere between a person who has undergone a sex re-assignment procedure and any person of the opposite sex is and shall be deemed always to have been a valid marriage.
(3) For the purpose of this section

(a) the sex of any party to a marriage as stated at the time of the marriage in his or her identity card issued under the National Registration Act (Cap. 201) shall be prima facie evidence of the sex of the party; and

(b) 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. [30/96]

(4) Nothing in subsection (2) shall validate any such marriage which had been declared by the High Court before 1st May 1997 to be null and void on the ground that the parties were of the same sex.

Minister for Community Development, Abdullah Tarmugi, who moved the bill argued that since 1973, the Government's intention was for people who had changed gender/sex to live a life according to their new gender, including the right to marry. Through an oversight, the law relating to marriage had not been re-aligned with the official policy to recognise sex reassignment surgery. Now that the courts had illuminated this inconsistency after the landmark case of Lim Ying v Hiok Kian Ming Eric, it was necessary to amend the Women's Charter to ensure that the original intention was not undermined.

Second Reading of Bill, 2 May 1996[]

The Minister for Community Development (Mr Abdullah Tarmugi): Sir, the Women's Charter was enacted in 1961. Over the years, the Charter has been amended to address emerging social issues and changing expectations of the public. The last amendments were made in 1980.

Sir, my Ministry undertook the review of the Women's Charter following feedback from the courts in 1993 about inherent limitations of some of its provisions. A wide spread of views, including those from other Ministries, the Committee on the Family, the courts, some women's organisations and professionals, were sought during the review. The Bill before the House today is the outcome of this comprehensive review. Though extensive, the amendments do not affect the spirit of the legislation. Indeed, in our view, they strengthen the intent of the Charter. The proposed amendments touch on nine areas. Let me deal with each of them briefly.

Amendment 2: Marriage for persons who have undergone reassignment procedure

Clause 4 of the Bill proposes a new section 11A to:

(1) clarify that a marriage solemnised in Singapore or elsewhere between two persons of the same sex shall be void;

(2) recognise the new sex of a person who has undergone sex reassignment procedure and accept the reassigned sex as stated in a person's identity card as conclusive evidence of his or her sex; and

(3) allow persons who have undergone sex reassignment procedure to marry and to declare past and future marriages of such persons to be valid.

Mr Speaker, Sir, I am aware that this amendment has raised some concerns among some members of the public. The issue is indeed a complex one and touches on moral, cultural and religious values. Sir, permit me to explain the proposed amendments which were made after much discussion and deliberation with several parties.

Sex reassignment procedure has been allowed in Singapore since 1971. A person who has successfully completed a sex reassignment procedure has to change his or her identity card to reflect the new sex and identity. A small group of individuals in Singapore have indeed undergone the procedure and have had their identity cards changed.

In June 1991, things changed for this group of trans-sexuals who had married when the High Court ruled in the case of Lim vs Hiok that the Women's Charter did not permit marriage between two persons of the same biological sex. Until the ruling, the Registry of Marriages had all along accepted the identity card as documentary proof of the identity and sex of a person. Those who had undergone sex reassignment procedure were able to marry using their identity cards which reflected their new sex. Following the 1991 court ruling, the Registry of Marriages stopped allowing the use of identity cards and began to require applicants to bring their birth certificates as evidence of their sex instead. For those who got married before the ruling, the court's decision meant that their marriages are now void. And if they have adopted children, the status of these children is now uncertain.

Sir, I must emphasise that the proposed amendments are not meant to institute a new practice. Rather they are to reinstate what was the position before 1991. The Government's stand is very clear: it is not a move to encourage or promote lesbianism, homosexuality, transvestism or sex reassignment among our people. We do not believe the amendments will result in our people reassigning their sex in droves. The Bill basically seeks a practical and humane approach to address the problems faced by this group of people and the families they have set up. It is to allow these individuals to lead a life according to their new status, as recorded in their identity cards, as we have all along used the NRIC to verify identity. It is practical. It is sensible.

Sex reassignment is a costly, painful and long process. A person has to undergo extensive psychological and physical assessment by psychologists and doctors to assess his or her need for sex reassignment to function better and more comfortably. Only when it is deemed necessary by the professionals is a person allowed to proceed with the sex reassignment procedure.

I wish to reiterate that the amendment will apply only to civil marriages and not to Muslim marriages which are governed by a different set of laws, ie, the Administration of Muslim Law Act (AMLA). Islam prohibits sex reassignment and does not recognise marriages between people who have undergone sex reassignment.

Dr S. Vasoo (Tanjong Pagar GRC): There are two areas that I am basically concerned about. These are related to the amendments proposed. The first is the provision on the recognition of marriages for those who have undergone sex reassignment. There has been some controversy by various groups about this issue. The basic concern is the erosion to the institution of marriage. Are we indeed giving a signal that we support this direction?. If we are not, it is very important for the Ministry to debunk this notion that we are endorsing and allowing the institution of marriage to be eroded. I do sympathise with people who have undergone sex reassignment. It is a human problem and therefore we should be sympathetic. But what is most important is for us to set up, at least a board, to review the impact of these changes, and whether more people would be seeking sex reassignment is a question which we all do not know. It would be important for us to monitor the impact of these changes. I want to know from the Minister whether his Ministry would be establishing a board to review the impact of these changes that are to come.

Mr Abdullah Tarmugi: Sir, I appreciate the Member's concern. Notwithstanding what I have said, I think we can still discuss this further in the Select Committee. With regard to whether it is my personal view, whether I am old-fashioned or male chauvinist, I do realise that, Sir. In fact, Members must have known that my own stand on marriage between transsexuals, for example, is quite different from what I have said here. In other words, amendments could be made to allow this. So there is a difference between how I feel and how I feel the law should be applied to the community.

Third Reading of Bill, 27 August 1996[]

The Minister for Community Development (Mr Abdullah Tarmugi): Sir, the Select Committee on the Bill received a total of 32 representations by the closing date. The Committee heard eight of these representations. I wish to express my appreciation to those persons who had given their views to the Select Committee. A number of the points raised by the representors dealt with administrative or operational issues, or issues already addressed under the provisions of the Bill. The Committee considered issues on points of law and points of policy raised.

The Committee recommends some amendments to the Bill after studying the written submissions and the oral evidence of the representors. The Committee also considered the views of the Members of Parliament expressed during the debate on the Second Reading of the Bill on 2nd May 1996. The Committee's Report has been circulated to Members of the House. Mr Speaker, Sir, I will now highlight the substantive issues deliberated upon by the Select Committee.

Marriage involving Transsexuals

On the provisions to allow those who have undergone sex-reassignment to marry, one amendment is proposed. Several representors raised the concern that the provision to accept the notation of sex in the identity card issued under the National Registration Act as "conclusive evidence" of a person's sex would be too rigid and problematic. The Committee agrees with this view and recommends that the words "conclusive evidence" be replaced by "prima facie evidence" to address this concern. This amendment is reflected in clause 4 under proposed section 11A(3)(a).

References[]

Acknowledgements[]

This article was written by Roy Tan.

Women's Charter (Amendment) Bill: transgender aspects

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