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

Abstract

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 cross‐jurisdictional 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 authority to endeavour to thoroughly define transgender from both civil and Sharia law point of view.