The Judicial Interpretation of Syariah and Civil Court for Non-Muslim Transgender (original) (raw)

Transgender Rights in Accordance with Civil & Sharia Law: Malaysia and Asean Perspectives

The International Journal of Academic Research in Business and Social Sciences, 2021

Background: The transgender term is used to illustrate a broad-spectrum of identities and experiences, inclusive to pre-operative, post-operative, and non-operative transsexual people; male and female cross-dressers; intersexed individuals; and men and women, whose appearance or features are recognised to be gender atypical. Transgender people are often exposed to violence and legally sanctioned discriminant on a daily basis in Malaysia, but it does not prevent them from growing in number. Objective: This article analyses the legal rights of transgender in Malaysia based on civil and Sharia law available with reference to international and ASEAN perspectives in consideration of the possibility for crossjurisdictional study. Method: This qualitative research adopts primary and secondary data benefitted from scientific report analysis and literature including statutes, law cases & papers on transgender. These details were analysed by legal interpretation and comparative assessment. Result: The research reveals that there is an absence of definition of transgender in any Malaysia legislation, but that does not prevent the transprejudice and legally sanctioned discriminant in every way possible e.g., men who appear as women. Still, with respect to healthcare settings, medical doctors in Malaysia conveyed relatively low intent to discriminate against transgender patients. In ASEAN perspective, notwithstanding the endorsement of ASEAN Human Rights Declaration, it lacks the capability to enforce its provisions in cases of transgression. Conclusion and recommendation: It is a long way off for Malaysia to recognise the rights of transgender due to the fact that the fundamental principles of the country mostly based on Sharia law and Islamic value. Nevertheless, there is path for intersex individual who according to Islamic jurists is not categorised as transgender, thus deserve to not be discriminated in all forms. Hence, the paper recommends Malaysian

Transgenderism in Malaysia

Transgenderism is perceived as natural and therefore divinely ordained, according to Islamic tradition in Malayasia, though it is a complex phenomenon that needs explanations considering biological, environmental, and social factors. A group of scholars from the University of Malaya, Kuala Lumpur, Malaysia critically analyzed the acceptance level of the transgender persons in the society and most importantly, comparing the perception from Islamic views vis-a-vis the transgender and society members. The data was gathered via interviews with the transgenders, Islamic religious authorities and fellow University students. Though the transgender persons feel that their nature is innate, the Malysian government and public at large judge them as responsible for their behaviour and charge them with ‘indecent behaviour.’ With Islam being the official religion of the country, most of the transgenders’ lives are also challenged by the enforcement of the religious edicts by the police and the Islamic authority. The article contends that though the prevailing religious beliefs and social ethos reject transgenderism, construing it as an abominable act to God and public humiliation in general, transgender individuals are human beings like any other citizens and they deserve the basic human rights to live in the society.

Islamic Legal Status on Hajj for Transgender People according to Muslim Scholars in North Sulawesi

Mazahib

This study investigates the perceptions of scholars concerning transgender people's legal status on their Hajj ritual validity. In North Sulawesi, seven scholars are considered the opinion-makers and authorities following their understanding of Hajj ritual procedures in Islamic law. The data were analyzed using qualitative methods through interviews and the needs theory by al-Shāṭibī, Ibn Khaldun, and Maslow. The results showed that the gender status of those yet to transition remains original. In contrast, the transitioned transgenders’ status should change to the original law following the court's decision. Second, the scholars approved Hajj rituals for those yet to transition because they had their actual gender and sex. Furthermore, Hajj rituals for transgenders were also legally acceptable in Islamic law following the new status exception by the court. The transgenders' Hajj rituals are valid based on their initial gender or the court's decision. The hajj practi...

International Human Rights Law and The Progressive Muslim's Perspective on Lesbian, Gay, Bisexual and Transgender Status in Indonesia

2018

This study focuses on the problem of how the views of the Progressive Muslim scholars on the status of LGBT in Indonesia and how the views of the Progressive Muslim scholars are influenced by international human rights law. The findings of this study indicated that the Progressive Muslim scholars do reinterpretation on the Quranic verses and Hadith texts of LGBT status in order to ensure the compatibility of Islam with the humanism values so that Islam comes forth as a positively "humanizing" religion. The Progressive Muslim scholars’ reinterpretation of the sacred Islamic texts on the LGBT status is greatly influenced by the values and norms of international human rights so that their views undergo interpolation with international human rights law. The study concluded that LGBT behaviors are more a deviation, not nature, so it is still possibly cured and rehabilitated. The Progressive Muslim scholars’ arguments, that consider LGBT behaviors as nature, are hence disputable...

An Obscure Perception of Transgender in Islam: A Case of Hijra in Bangladesh

Global Journal of Human-Social Science

Religion-related stigma and discrimination towards transgender are common phenomena in the current world. Despite the legal recognition of hijra, those people were denied basic civil and human rights such as marriage or inherent property rights. Like many colonized countries, Bangladesh legal system has its roots in British colonial legacy. But, in case of marriage or inherent property law, Bangladesh follows the religious law of Islam. The Quran or Hadith do not have a specific guideline concerning transgender, and the Muslim countries do not follow any homogenous law due to the contextual cultural construction. This paper argues, without addressing the cultural practices of Islam, the proper conceptualization of transgender identity is not possible. Although it is also the case, only the Islamic perspective, will give us a narrow understanding of hijras who are one of the transgender communities in Bangladesh. To do so, this paper will analyze the dynamic relation between Islam an...

Transgender in Indonesia According to The Legal, Health and Culture Perspective

2021

Transgenders are part of a sexual minority group whose orientation differs from the majority of Indonesian society. They are considered to have abnormalities and violate nature, which is inappropriate in Indonesian culture. Yet, based on Ius Constitutum, transgenders have freedom in determining their life. They also have legal protection which are Article 1 (paragraph 3) of 1999 Law no.39 and Article (28) of the 1945 Constitution. However, this human right has limitations related to morals, religion, security and public order. This research aims to perceive transgender from Ius Constitutum, medical and Indonesian culture perspectives, along with its negative and positive impacts.As the result, negative impact experienced by transgender people. Those are isolation from society, activities limitation (namely hanging out, going to the toilet, having religion and socializing), potentially carrying diseases such as HIV-AIDS, and limiting mobility of others who feel uncomfortable about th...

Transgender viewed from the perspective of positive law, health, and cultures in Indonesia

2021

Transgender people are seen as an abnormal minority group that bends the accepted sexual orientation against the cultures in Indonesia. This trend is also believed to be more prone to diseases. From the perspective of ius constitutum, transgender people are under different protection as set forth in Article 1 paragraph (3) of Law Number 39 of 1999 and Article 28 J of the 1945 Indonesian Constitution. However, the human rights governed are restricted to moral and religious, security, and public order rights. In the view of the positive law, in terms of health, every individual has the right to decide how they should live their life, but health is generally linked to diseases. When it comes to this matter, it can also be deemed inappropriate or deviant. Transgender people may be deprived of society, and they may have narrower room for their day-to-day activities such as mingling in religious activities and society, and even going to the restroom). This sexual tendency could also cause...

Konstruksi Masyarakat Jawa Kuno terhadap Transgender Perempuan pada Abad ke 9-14 M

AMERTA

The Construction of Ancient Java Community Towards Transgender Women in The 9th-14th Centuries. Transwomen in Indonesia are easily recognized by one's physical appearance. The survey stated that 89.3% of LGBT (lesbian, gay, bisexual, and transgender) groups have experienced discrimination and violence. The views of the Indonesian people towards transgender women today are influenced by the perspectives and constructions of society in the past. This paper is to reconstruct how the perspective of the ancient Javanese society towards trans women. The purpose of this research is to find the origin of the current Indonesian people's view of transgender women from past references. This study uses a descriptive analysis approach through the stages of data collection, analysis, and interpretation. It can be seen that the construction of society during the Javanese era considered transgender people as a group of people with disabilities. In addition to these constructions, for the royal group, trans women are part of the king's servants who have magical and political powers. Thus, trans women had an important position and privileges in the ancient Javanese kingdom. The position of transgender women can also be understood as an archipelago tradition, which places transwomen as a link between the human world and the world of gods, as can be found in bissu in South Sulawesi.

Legal rights of transgenders in pakistan theory and practice case study of faisalabad division

PSSR, 2018

This paper examines the rights of transgenders passed by the Government of Pakistan and their implementation in the country specially focused on Faisalabad division. In Islam every human has equal rights, but in Pakistan it is hard to say that “Transgender” has been neglected or being ignored by the governments and society. This paper highlights various issues faced by this community in Pakistan. The research is based on Primary data and analysis of this paper shows that Government fails to implement passed law regarding this marginalized section of the society. There should be need to provide education, health and economic opportunities for this community.

Transgenders and justice in Islam

In refusing to allow Ashraf Hafiz Abdul Aziz to change his name, the courts may have adhered to the letter of the law but did they lack the compassion for transgenders.