The judge who presided over the case declared the same-sex marriage illegitimate because of Mohd Sufian’s original gender designation.

The judge who presided over the case declared the same-sex marriage illegitimate because of Mohd Sufian’s original gender designation.

According to a New Straits Times article, three doctors had conducted physical examinations and blood tests on Mohd Sufian and concluded that he is a woman.

A more thorough diligence to determine Mohd Sufian’s true gender
should have included a psychological or psychiatric evaluation to
determine Mohd Sufian’s true gender state of mind.

Even in doing a cursory image search of Mohd. Sufian Mohamad
(http://d.yimg.com/us.yimg.com/p/rids/20070904/i/r1151205447.jpg),
(http://www.nst.com.my/Tuesday/National/20070904082913/insidepix1),
one can safely conclude Mohd Sufian does not identify himself as a
woman. A reasonable hypothesis is that Mohd Sufian, based on his
appearance and behavior, identifies himself as a man. In such a case,
Mohd Sufian’s gender condition is described as transsexualism or what
is clinically known as Gender Identity Disorder (GID).

The premise of GID is that an individual with GID feels strong
identification with the opposite sex. The individual may choose to
behave and appear as a member of the opposite sex. That said, many
transgendered individuals are opposed to describing their condition as
a mental disorder. The preferred method for describing the condition
is that one’s state of mind regarding gender identity is different
from the gender state that one was born with. (For more information on
GID, http://www.webmd.com/sex/gender-identity-disorder).

Had Mohd Sufian lived in countries as Canada and most of European
countries such as France, Germany, Italy, The Netherlands, Portugal,
Denmark, Finland and Sweden and the United Kingdom, Mohd Sufian can,
not only legally go for sex reassignment therapy and surgery, but he
would have received federal support for his sessions.

Furthermore, he would have been able to legally change his gender
identity (http://wiki.susans.org/index.php/Legal_aspects_of_transsexualism#Regional).
In fact, should they have chosen to, Mazinah Mohamad (Mohd Sufian’s
name on his original birth certificate) and Zaiton Aziz could have had a legitimate same-sex wedding.

Even the ultra conservative Iran condones sex reassignment
surgeries. This was the result of a fatwa issues in 1983 by Ayatollah Ruhollah
Khomeini. (http://www.guardian.co.uk/g2/story/0,,1536658,00.html).

Unfortunately for Mohd Sufian, Malaysian Muslim transsexuals are not
as lucky as their Iranian counterparts. Yik Koon Teh postulates in
his paper, Mak Nyahs in Malaysia: The Influence of Culture and
Religion on their Identity (The International Journal of
Transgenderim, Vo 5, #3 2001), that transsexuals in
Malaysia are constantly harrased by the Syariah officers and the police.

Majority of the transsexuals interviewed in Yik Koon’s paper are
resigned to the fact that they are legally and religiously prohibited
from performing sex reassignment operations. Most Malaysian Muslim
transsexuals appear to have imposed self-restrictions citing reasons
such as wanting to avoid complications during Islamic funeral rites when they die. Other reasons cited were lack of financial means to go through the surgery and lack of local resources to perform said surgery.

Non-muslim Malaysian transsexuals and Muslim hermaphordites
are a little luckier in that they are allowed to undergo sex changes. According to a 1983 fatwa issued by the Conference of Rulers in Malaysia, Muslim
hermaphrodites are the only segment of the transgendered Muslim
Malaysian community allowed to perform sex reassignment procedures(Yik
Koon Teh, International Journal of Transgenderism Vol 5,
#3 2005).

Given the fact that Islam is the most sex-positive great world
religion – recognizing that sex is a natural part of human procreation
and recreation and given the fact that Islam is the first social
organization to establish psychiatric institutional care back the
heydays of the eight century, current Malaysian attitude towards the
Muslim transgender community seems at odds with the religion.

One can contend that Mohd Sufian and Zaiton simply wanted
to legitimize their relationship by getting lawfully married. The
Syariah Court’s decision to part them permanently sends a negative message to the
LGBT (Lesbian Gay Bisexual Transgender) community in Malaysia. One
also can contend that this sends a negative message to the community
at large. Malaysia is internationally seen as one of the most economically developed Muslim countries as well as one of the more liberal one. Yet, this recent ruling shows a religious mindset that leans the opposite.

The Syariah court in Malaysia needs to rethink its position on
transsexualism and on sex reassignment treatments. A simple solution
to Mohd. Sufian Mohamad and Zaiton Aziz’s situation would have been
for the Syariah Court and the Malaysian judicial system to permit Mohd
Sufian Mohamad to officially change his gender. Allowing individuals
like Mohd Sufian Mohammad to change his gender physically and legally
will enable him to marry Zaiton in way that would satisfy Syariah
judge Che Saufi Che Husin’s need to see Zaiton and Mohd Sufian go
through life as a ‘normal’ husband and wife.

The fact that Mohd Sufian and Zaiton were being able
to make each other happy for five years should be taken into
consideration as well especially given that in the US, 60% of new
Muslim marriages do not survive past their first year.

Beside, would it not be more in
line with Islamic law to allow Mohd Sufian and Zaiton to be legally
married? After all, Mohd Sufian and Zaiton simply desired to be
together the proper Muslim way.