Tuesday, May 18, 2010
Gender Bender in Indonesia
In all the months I've been blogging on Rule by Hukum, this is perhaps the worst violation of justice that I've seen. An Indonesian, Alterina Hofan, has Klinefelter's Syndrome, which results in an extra X chromosome and a more feminine physical appearence. Indeed, when he was born, he was registered as a female. However, he had always identified himself as a man. Later in life, he underwent surgery to remove some of his more feminine features and changed his identity papers.
When Mr. Hofan married a woman in 2008, his mother in law filed a case against him, alleging he had falsified his identity documents. Mr. Hofan was arrested and initially placed in the male's ward of the prison. However, after police DNA tests, he was placed in the female ward. Upon yet further reflection, the prison staff decided he was male and could not be held amongst other female prisoners. Therefore, Mr. Hofan remains in a private jail cell in the female section of the prison.
Fortunately, the case has received a lot of publicity. According to The Jakarta Post, Josep Adi Prasetyo of the National Commision on Human Rights (Komnas HAM) denounced the decision, saying Mr. Hofan "has the right to say he is a man." Siti Hidayati Amal, an Indonesian sociologist, says the case shows that “there is still an apparent lack of awareness among the authorities, especially the police, on how to handle this specific issue.”
I've occasionally said on this blog that bad facts make bad law (or the inverse). Mr. Hofan's case could well be one in which good facts make good law. While the case hasn't yet (and might not) gone to court, if it does reach, say the Mahkamah Konstitusi, it could lead to a decision in favor of at least limited LGTB rights. How so? Mr. Hofan's plight is extremely sympathetic. He did not choose to be transgendered, but rather suffered from a genetic disease. He has been consistent in staking his identity as a man. The government's handling of Mr. Hofan seems inept at best, and verging on callous. Perhaps most importantly, given that this is nominally a marriage fraud case, Mr. Hofan's wife has stated that she does not care about her husband's gender past. She has told the media, “All I want is for my husband to be freed as soon as possible.” These aren't the type of facts that would arouse the ire of most people, even religious fundamentalists opposed to LGBT rights. I won't be so bold as to predict the outcome of any litigation, but it seems to me that Article 28I of the Constitution would provide several grounds for releasing Mr. Hofan.
Hopefully Mr. Hofan will receive justice sooner rather than later, but if his case does go through litigation, it could lead to profound developments in Indonesian LGBT law.