It is common amongst many factors to see an appeal to human rights or international human rights norms as the justification for LGBTQ and gender equality. It seems in our modern or post-modern society, human rights or rights claims rest much on what is taken for granted as “rights order”. And much of the rights order enunciate rights and laws that must be taken as very much the norms which must never be questioned.
The recent research proposal by the Malaysian human rights commission, SUHAKAM entitled, “The Feasibility of Having Legislation on the Recognition of a Third Gender” has occasioned an examination into this point.
The objective of the research is to identify the feasibility of having legislation on legal gender recognition in Malaysia with the scope of the research encompassing a broad range of study including the current practices, legal framework, trends in relation to legal gender recognition and the feasibility of Malaysia enacting a gender recognition law with a best model from other Commonwealth jurisdictions. The outcome of the study is to recommend legal solutions to overcome the discrimination, administrative and legal impediments faced by transgender persons. The research is initiated on the presupposition that transgender persons have certain rights and the law should accord to them the protection and benefits of such rights.
Unsurprisingly, such a proposal has attracted differing views and opinions. Some have supported the proposal and we see a group of 130 individuals and NGOs refuting the position of the PAN Malaysia Islamic party, PAS on their objections for such a research. There are others who have similarly launched a petition objecting to the same as nothing more than a bias study to legitimise the status of transgender as an accepted legal category of person with positive rights in Malaysia. No doubt the debate will intensify in the coming days.
While it could be argued that this is merely a feasibility study as the title of the research proposal suggests, what is mentioned earlier about the appeal to human rights to justify the conduct or behaviour of the LGBTQ or transgenderism as a social norm and legal category cannot be missed.
The terms of reference explicitly stipulate the research must commit to assess the implementation of existing legal and policy frameworks, procedures and administrative practices in Malaysia relating to legal gender recognition of trans people and the relevant international human rights standards. This is done through analysing domestic and international case law/international human rights laws and proposing human rights-based policy consideration to the government to review existing legislative frameworks and administration actions in the protection of transgender peoples’ right to legal recognition.
A key observation to note is the consistent reference made to international laws and international human rights standards. The two terms appear side by side and seem to be used in a synonymous fashion – international law is international human rights. The two is taken as one and the same.
But from conceptual legal jurisprudence, there always is a difference. Positive law must be distinguished from natural or natural rights arising from being human. In common parlance, there often is a conflation between positive law and natural rights. And they are not the same in meaning nor in its conceptual application. This begs the underlining question, what then is the foundational basis for calling this research into play? Is it based on international positive laws comprising the various declarations, treatises or conventions or is it to be based on the rights or human rights of the transgender or non-binary person?
An appeal to international laws or treatises for the rights of the transgender or non-binary person cannot be limited to its abstract, generalists’ provisions and must necessarily be argued out in the common public sphere of democratic deliberation. In the vast spaces of democratic deliberation, there will always be the alternative sides of arguments and points of contention. Each side will marshal its own arguments based on its own perception of reality and its vision of the social good premised upon its own conscience and moral resources. This includes the religious communities and faith-based organisations with their own moral, spiritual and ethical comports. I supposed one may say such a dimension is lacking in the call for this feasibility study. The feasibility study does not indicate nor take into account the moral and spiritual voices from culture and local contextual realities from the wider religious and spiritual communities. The concern therefore is whether such a study initiated by a national human right body with the aim of changing laws and policies within the national polity will encompass a broader range of considerations as we have mentioned.
What is however not obvious is, the appeal for such a feasibility study seems to be premised on what is commonly alluded to as the “human rights of the LGBTQ or rights to transgender identity”. Employing such a premise, the talk is, our laws must be brought to consistency with international human rights norms or international human rights standards.
Such a premise is attractive and appealing, after all who would want to argue against the cluster of fundamental liberties that is necessary for life that has come to be called human rights. But we must unpack this premise further for its validity. In doing so, we noted the caution by the legal philosopher, John Finnis when he says “rights-talk tends to employ a ‘conclusory’ force and with this rhetoric deployed to short-circuit moral deliberation by forcefully asserting at the beginning what really remains to be argued and proven as human rights”. That is a problem.
Could it then be said that this right of the LGBTQ or the right to transgender identity which is now demanding to be recognised no less by local laws are mere assertions or moral claims to be debated and rigorously deliberated upon before according such claims or assertions as a special cluster of rights that one may call as the right of the LGBTQ or the right to transgender identity?
In this, the ethicist Oliver O’Donovan observed, that the use of rights language in this modern era has been made to gain a critical advantage over existing systems of justice, over cultural deliberations and the diverse social visions of the common good. No doubt this form of language and its use was self-consciously revived by the decision to base post-war reconstruction on a Universal Declaration of Human Rights and the subsequent conventions and treatises. This has invariably ‘put paid’ to flexibility in the use of such language to refer to unitary right as well as multiple rights. In short, might we say rights-talk has invariably come to triumph and can only mean one and only one human rights, that of the rights in the international conventions and treatises.
But the reality is furthest away from this. Even in so called secular plural society, the truth is that there comprise several rivals and competing theories of rights. It is far from just one kind of rights-talk as though in total and uniformity. The actual culture of the West today is as the Oxford theologian, Nigel Biggar observes, an unstable mixture of plural elements, where ‘modernity’ vies with ‘pre-modernity’ and different ‘modernities’ and ‘pre-modernities’ vying with each other. It is more akin to what Alasdair MacIntyre, the social philosopher says – fragmentary and confused.
For us in Asia-Malaysia, rich in diverse cultural heritage and strongly rooted in various religious and spiritual traditions, we are on firmer grounds. Our rich diversified cultures and the force of our religious and spiritual traditions/insights can provide the sort of clarity on rights and obligations to avoid the pitfall of a fragmented and confused society now besetting so many of the world’s nation in their enamored quest for recognition and acceptance of wide-ranging sexual identities and gender orientations. This pursuit cannot be exerted through an authoritative transcendental matrix but by recourse to our moral resources, examining the corresponding duties of persons with respect to the common good or a “just coordination of multiple goods” when rights-talks are invoked, and whether our social institutions will remain sufficiently wholesome and robust when faced with the intricacies and contingencies of those professed rights-claims. These deliberations are fundamentally the role of legislatures, but it must go beyond to wider society, of every religious and interest groups as well. This is essential and not simply a matter of aggregating preferences or aligning with the present order of things so concern with conformity in a context of moral ambiguity or tragic compromise.
Director of National Unity Programmes, UID-Sejahtera