INTERSEX, TRANSGENDER OR SAME-SEX; WHAT’S IN A NAME?

INTERSEX, TRANSGENDER OR SAME-SEX; WHAT’S IN A NAME?

Prof. Dr Saskia E. Wieringa

Aletta institute for women’s history

University of Amsterdam

What’s in a name? Or more precisely, in the name of a category? A lot, it appears, if these terms are intersex, transgender/transsexual or same-sex. A first look indicates that these are different categories, referring to different bodies, behaviours and identities. But what if these categories can be applied to the same bodies, or to bodies that usually wouldn’t fall under any of these categories at all? What happens then? Experts from various professions, activists and judges all seem to have their own opinions. The discursive contestations between conservative biomedical, religious and political leaders on the one hand and feminists, gay and lesbian rights activists and human rights defenders on the other, centres around the definition of what is ´normal´ gender´, a ´normally´ sexed body and ´normal´ sex. The views of those whose bodies, attractions and behaviours are discussed, judged or operated upon hardly seem to matter. In this article I discuss the medical, legal and cultural- religious discourses around three cases. First the cases, then the discourses.

Case 1, the wedding of Alterina and Jane, Jakarta.[1] Under the headline ‘Alterina latest proof of transgender problems’ the Jakarta post of 14 May 2010 carried the story of Alterina Hofan, the husband of Jane Hadipoespito; Alter was imprisoned on the charge of ‘identity fraud’.[2] Other newspapers also reported on the case, with Vivanews of the same date carrying a photograph of the couple in happier days;[3] Jane in a fluffy dress and with half long hair looks up admiringly at her husband Alter, smart in a jacket, shirt and tie, short hair, square shoulders. The article specifies that Alter smokes heavily and has a baritone voice. Alter looks like a man and that is the assumption under which the pair married.. Yet at birth Alter was classified a girl and only later diagnosed with Klinefelter syndrome, one of the intersex conditions presently recognised. After operations for gynecomastia and hypospadias, Alter was happy with his body, and changed the identity on his documents without going through a lengthy legal procedure.[4] When he and Jane fell in love and married, nothing seemed to impede their happiness. Yet Jane’s mother objected to the marriage and brought a case against her son in law, for ‘document fraud’, as the sex of his birth certificate didn’t match that mentioned on his wedding form. The police originally detained him in the men’s prison of Cipinang in January 2010. However, not trusting the original Klinefelter diagnosis, the police carried out their own investigation and decided that Alter was a woman.[5] In spite of his manly appearance, on April 30 they moved him to a cell of his own in the women’s prison of Rutan Pondok Bambu, awaiting his trial.

At that point the discussion was waged in biomedical terms. If Alter was declared intersex the confusion at birth was understandable. Later his masculine characteristics developed further. A person with a Klinefelter condition is usually classified as ‘male’. So he could be seen as a ‘real man’ and he would walk free. But if Alter was diagnosed as female and thus after the operations as a transsexual person, he should have received official permission to change his status. In both cases the sex on his birth certificate would have to be changed. In the Klinefelter case this shouldn’t have caused many problems, but a legal process was still required. In the case of a ‘female’ Alter undergoing a sex change, the procedure would have been much more lengthy, involving psychological testing.

            His defence team pursued a different line and called upon a member of the National Rights Commission to declare that Alter’s rights were violated under the Covenant on Civil and Political Rights.[6] The court accepted this argument and Alter was provisionally released on 31 May but still had to face trial. In October 2010 the prosecution demanded a sentence of five years in prison on the charge of ‘document fraud’. In November of that year Alter was acquitted from all charges on the ground that he had Klinefelter syndrome and thus, though he had tampered with his birth certificate, in his case this could not be considered a crime..[7]

 A number of issues warrant further consideration. The first is the use of (albeit conflicting) medical ‘proof’ to substantiate the charges against Alter, or conversely to argue for his release. Though Klinefelter is diagnosed as a biological condition pertaining to one’s sex, reporting focused on Alter as a transgender person. This confusion of terminology opens up a totally different discourse, that of human rights and prevailing notions of ‘normality’. The Indonesian Human Rights Commission took this a step further and declared that this case was a violation of Alter’s rights and referred to the ratification in 2005 of the International Covenant on Civil and Political Rights by the Indonesian government. Josef Adi Prasetyo, the commissioner in charge of the case, declared ‘he has the right to say he is a man.’

            This position provides an excellent opportunity for a revolutionary development in the struggle for intersex, transgender and transsexual people. However, in the end, this line was not followed. Alter was classified as a ‘true man’, and adjusting one’s ‘wrong’ birth certificate would simply mean that a perceived mistake was righted. The biomedical argument was in line with the legal verdict.

Case 2 Sex operations in Indore, India.

On June 26, 2011, the Hindustan Times informed its readers that girls were being ´converted´ into boys in Indore, India. Doctors were said to perform hundreds of such operations on girls from 1-5 years old who were brought there by their parents, from all over India.[8] Attracted by the low cost of surgery in Indore and the unobtrusive way of getting it done in that city, parents shying away from the prospect of having to pay a huge dowry for their daughters turned them into much more lucrative sons. In this case only the consent of parents was needed, as the girls on whom genitoplasty was performed were too small to realise what was happening to them. Only the discourse of patriarchal greed is applied here. This also goes for the sex-selective abortions being performed each year. The outcries of the Indian feminist movement and of scientists such as the well-known economist Amartya Sen have not been able to reverse the declining female/male sex ratio. A study conducted in 2009 revealed that more than 7000 female feticides were being performed each day in India. In 2001 there were 886 girls born to every 1000 boys in Delhi. That figure has since declined to 866.[9]

Case 3 Aleesha, Malaysia.

On August 1, 2011 a notice circulated in the mailing list of the Coalition for Sexual and Bodily Rights in Muslim Societies that Aleesha had passed away:

With great sadness I wish to inform the Coalition that Aleesha passed away a few days ago . Even till death she was not granted her wish to be buried as a women. This is a grave injustice and we hope no one else will suffer the same as Aleesha had.
May her soul rest in peace.

Why couldn´t Aleesha be buried as a woman? For 8 years she had earned her keep as a female model, after a sexual reassignment operation. However, from her identity card her gender at birth still appeared as male. Both for her work and for further studies she needed an identity card with her current name and sexual identity. The request to change her identity card was denied in a decision by the High Court judge, Datuk Yazid Mustafa, earlier in 2011. In this case a number of discourses are deployed. The defence counsel cited a 2005 court case in which a person from Kuala Lumpur was granted her wish to be classified as female. She had requested her official papers as she wanted to marry her boyfriend of 10 years. To substantiate the case the expert opinion of three medical doctors was sought, who all declared that the plaintiff at the time had undergone the proper medical procedure. Transsexualism, it was declared, is associated with neurodevelopment. Two other arguments were heard. It was mentioned in passing that this case concerned a ´mak nyah´, a traditional term for an MTF person (Peletz 2009). Apparently, as I have discussed elsewhere, somewhere between 2011 and 2005 the traditional acceptance (though often limited) of transgenderism had been eroded (Wieringa 2010). The third discourse called upon was religious, the decision of the prestigious Egyptian Muslim University Al Azhar to approve of sex reassignment surgery. The final argument advanced in the case of Aleesha was stated in legal terms. Reference was made to principle 17 of the Yogyakarta Priniciples which states that everybody has the right to the highest attainable standard of physical and mental health.[10] To no avail. Aleesha was not allowed to change her identity card.

A jumble of discourses

Aleesha, who wanted to be officially classified as a woman, could not get her papers changed. Legal, religious, cultural, medical arguments were of no help to her. Indian girls, without having expressed any wish to change their bodies, are turned into boys, at their parents´ wishes, with little objection. Apparently the paperwork does not seem to be cumbersome, the articles don´t refer to any problems to that effect. The simple fact of the availability of medical treatment is sufficient to perform such wide ranging operations. These two cases deal with people who are unambiguously assigned a sex at birth. Alter on the other hand is born with an intersex condition. Classified at birth as female, later developments demonstrated masculine characteristics. He wanted to be operated on and identified as male, married, but was stopped in his tracks by his mother-in-law. He was ultimately saved from a term in prison (of up to five years) because, in the end, the medical evidence of his Klinefelter condition prevailed. Had his case been one of transsexualism, he probably would not have been allowed to walk free.

Let me unravel some of the discourses that play a role in the three cases mentioned above.

The rights discourse seems to offer the most scope for acceptance of gender pluralism. The Yogyakarta Principles are very useful, and a statement such as that made by Alter’s lawyer (everybody has the right to define her/his own identity) supports the claims of those who want to change the identity papers. However, it is not always clear whose rights are being defended. What if parents insist on their ‘right’ to have a ‘normal’ child? If they decide that their sissy son or tomboy daughter need to be turned into ‘normal’ children and treatment is sought? Or if intersex children are operated on without their consent? Or again, as in the Indian case, simply if parents insist on their ´right´ to have a boy instead of a girl?

In Malaysia, in 2005, the rights discourse was successfully deployed, in combination with a medical discourse that insisted on the relevance of neurological processes. In 2011, however, those same arguments no longer convinced the judges, and Aleesha died without the last rites she had wanted to be performed.

In 2005 another argument played a role, that of the traditional figure of a mak nyah. In several societies in South East Asia there was (and sometimes still is) a cultural space for transgendered, and/or intersex persons (in the older literature often lumped together under the term ´hermaphrodite´). Researchers call this a social model in which ´sacred gender´ prevailed (Blackwood 2005). Most societies made the transition from a model based on sacred gender with an original sacred unity to the present binary gender model, in which persons such as the Malaysian mak nyah are stigmatised. Associated gods such as the double-sex Hindu god Ardhanary have lost their prominence. The ritual specialists who used to enact the ceremonies to restore the communication between gods and humans and who embodied the unity between heaven and earth, have either disappeared or their importance has been undermined. With it, the possibility for acceptance of transgender people and for children born with ambiguous genitalia has been eroded. In Indonesia and Malaysia, as elsewhere, the space for gender variance is declining.

Conservative religious specialists have joined the choir. The human rights discourse is a strongly contested issue in Indonesia, with hardliner Muslim groups providing their own interpretations of these rights. Recently the major Muslim militia, the FPI (Front Pembela Islam, Muslim Defender’s Front) has been arrogating to themselves the right to declare what is ‘normal’. In the first few months of 2010 several incidents occurred in which FPI members were involved. For instance they forcibly evicted gays and lesbians from a conference and interrupted a human rights training involving transgender people (on 30 April 2010).[11] Their discourse is based on the Qur’an and the Hadith, the heritage of the Prophet Muhammad. Defending their action to disband a human rights training of transgender people, they declared that ‘Islam has a place for people who naturally have double sexual organs but not for those who intentionally change their given gender’.[12] So in this interpretation Alter’s Klinefelter diagnosis would have won him the acceptance of the hardliner Muslim community. The Indonesian Catholic bishops, however, remained opposed to the marriage.

Muslim clerics also use biological arguments to strengthen their case that sexual dimorphism is the preferred state of being. The secretary of the conservative Indonesian Ulama council (MUI), Ahmad Rofiq judged that the ‘tool with which one pees’ determines in which sexual category a person must be placed.[13] Progressive Muslim scholars in Indonesia however, such as Prof. Musdah Mulia use a different argumentation to maintain that there is a place in Islam for transgenders, intersex persons and for gay men or lesbian women. Islam is not concerned with sexual orientation but only with sexual behaviour, she argues. The major criteria is that this behaviour cannot be violent or irresponsible. Both heterosexual and homosexual persons are condemned if they engage in violent or cruel sexual acts. Thus in a humanist interpretation of Islam, based on the central principle of equality, wisdom and compassion- there is no place for discrimination and hatred.[14]

Conclusion

The cases of Aleesha, Alter and of the Indian babies indicate, first, that the decision to determine to what gender or sexual category a person wants to belong, is usually not made by the persons themselves. Indian babies have no say at all, Aleesha is denied the right to live officially as a woman, and Alter only barely succeeds in being released from prison because he happens to not be a transsexual person (as Aleesha was) but to have an intersex condition. Contradictory legal, religious, medical and cultural discourses are randomly deployed to argue one or the other case. The right to determine one´s own identity however, an argument which the Indonesian human rights lawyer advanced, seems to have carried the least weight. Yet I maintain that this should be the major argument used.

Sex and gender should be seen as continua which do not necessarily run parallel to each other. When people are old enough to make their own decisions as to how they would like to be placed on these axes they should be allowed to do so. The discursive contestations between conservative biomedical, religious and political leaders on the one hand and feminists, gay and lesbian rights activists and human rights defenders on the other, centres around the definition of what is ´normal´ (or a desired) gender´, a ´normally´ sexed body and ´normal´ sex.          

Sexual and women’s rights activists, Muslim militias, human rights advocates, religious and biomedical scholars all engage in this fierce debate on who has the right to define what is ´normal´ in gender and sexuality. In the process the broad liminal space in which transpeople moved, at least in some South East Asian societies, is carved up into neatly defined categories. Each with their own medical codes and legal instruments. They thus have to struggle individually for recognition and legal protection. The consequences are an urge to define and categorise that which used to be diffused, liminal and at times sacred; the medicalisation of those persons with atypical genitalia and the stigmatisation of those who insist on an in-between space, who refuse to accept the binary sex-gender model. A related development is the ongoing medicalisation of bodies, which allows, for instance, the performing of genitoplasty on Indian girls in Indore.

A coalition of human rights defenders, sexual rights activists and advocates of Asia’s cultural heritage of tolerance for non-normative persons has the potential to stop the advance of conservative bio-medical and religious thinking that is now sweeping over many parts of Asia and which closes down the liminal spaces that once existed. Progressive medical personnel who do not want to be ‘moral guardians’ and who don’t advocate surgery when none is needed for health reasons can also play an important role. At the moment however conservative forces such as hardliner religious officials and intolerant legal personnel seem to have the upper hand.

References

Peletz, Micheal G., 2009, Gender Pluralism; Southeast Asia since Early Modern Times. New York and London: Routledge.

Wieringa, Saskia 2010 Gender Variance in Asia; Discursive Contestation and Legal Implications. In Journal of Gender, Technology and Development, 14.2. pp143-172