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Author: Tiurma M. P. Allagan
Summarised by Tsang Zi Kan
The article examines whether the law should recognise the capacity to marry for people with Disorder of Sexual Development (DSD) in the Indonesian context. A person with DSD, also known as an intersex person, has ambiguous genital organs due to anatomical and physiological symptoms, causing uncertainty whether the person is a man or woman. The author suggests that the definition of man and woman in the Indonesian Marriage Law should be clarified to include those who have undergone sexual reconstruction surgery. Hong Kong and Singapore’s marriage laws regarding the sexual identity requirement are mentioned and compared with the Indonesian one, as many Indonesian couples choose the two locations to solemnize their marriage.
Comparison of marriage requirement
Indonesia, Singapore and Hong Kong marriage statutes have similar general requirements, including that the parties be a man and a woman (heterosexual). Both Singapore and Hong Kong’s law recognise the right of marriage for persons who received sexual reassignment surgery. They are contrasted with the Indonesian act which is silent on whether the persons who underwent reassignment or reconstruction surgery falls within its scope.
The author reviews the Indonesian legal basis for sexual reconstruction surgery (which aims to reconstruct the genital organs in accordance to with one’s physical conditions) and the district court decisions whose role is to establish the sexual identity after reconstruction for data documentation purposes. She concludes that while reassignment surgery is prohibited by statute, reconstruction surgery to more clearly define the sex of a DSD patient is allowed. She observes, from court decisions, that the physical and psychiatric conditions of the person, medical standards and expert evidence, the happiness of the applicant regarding his/her sexual identity, and religious views are relevant factors in determining the sexual identity of a person. Opinions in society should not affect the State’s protection of equal rights of citizens as human beings with person integrity.
She recommends the State to promulgate regulations to respect the freedom of choice for people with DSD to choose their sexual identity before reconstruction surgery becomes due.
Regrettably, the Hong Kong society seems to pay little attention to the intersex community, which is existent although a minority. Apart from raising public awareness, it is suggested that legislations and regulations to be issued to more comprehensively protect and acknowledge the legal rights and autonomy of intersex persons, and those who underwent sex reconstruction or reassignment surgeries.
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