THE Nur Sajat incident has once again sparked a heated discussion in Malaysian society on the transgender topic.

Early this year, Nur Sajat (who was born Muhammad Sajjad Kamaruzzaman) was convicted of lowering Islam in the estimation of society by disguising herself as a woman.

She pleaded not guilty to the charge filed under Section 10(a) of Shariah Criminal Offences (Selangor) Enactment 1995, which obligates Muslims not to insult or bring Islam into contempt.

While the prohibition on changing gender is commonly observed in shariah law across the 13 states, there is no corresponding provision in the civil law besides the barely relevant sections enshrined in the penal code:

• Section 377A. Carnal intercourse against the order of nature; and
• Section 377B. Punishment for committing carnal intercourse against the order of nature.

Be that as it may, it is doubted that non-Muslim transgender Malaysians can live without discrimination, let alone Muslim transgenders, considering the current society’s attitude towards the issue.

Is the prohibition relevant?

A notable philosopher, Montesquieu (1689-1755) emphasised that the law of a nation shall be determined by its characteristics, and should be “in relation to the climate of each country to the quality of each soul, to its situation and extent, to the principal occupations of the native”.

Simply put, instead of formulating laws that are appropriate or of utmost importance in the mere eye of the legislature, the centre of gravity ought to be shifted to societal practices.

Consistently, the founder of the sociology of law, Eugen Ehrlich (1862-1922) propounded the theory that the real and better source of law is the activities of the society itself, not the prohibition in law formulated by the authorities, without regard to the need of the society at large.

In Malaysia, Malay-Muslims made up approximately 69.8% of the total population, retaining their position as the major religious/ethnic group (Malaysian Department of Statistics, 2021).

Crucially, article 3(1) of the Federal Constitution provides that Islam is the official religion of the federation.

As such, if the formulation of law is to be hinged on the characteristics of the society, it is pertinent to say that Islamic views would emerge at the top of the reference list.

This is because all Malays must be Muslims under article 160 of the constitution, which interprets “Malay” as “a person who professes the religion of Islam…”

As illustrated in the hadith that was represented by Imam Abū Dāwūd, from Abū Hurairah he said: One day the transgender perpetrator who coloured his fingernail and toenail with henna. So, the prophet asked them: “What is wrong with this guy?” They answered: “O Rasulullah, this guy resembled women”. So he commanded to punish this guy, and this guy was exiled to the place called Naqī‘.

Changing gender is prohibited in Islam, as the idea is that he was made by God and that the procedure would be tantamount to disowning God’s creation, making it an abomination in God’s sight.

Thus, we can conclude that the prohibition transgenders in the Malaysian context is relevant, as the ultimate prominence is given to the characteristics and practices of society.

“Society stands above the particular individual” – Rudolf Von Ihering (1818-1892).

Which way to go?

Roscoe Pound, the leading American scholar and chief advocate of “sociological jurisprudence”, suggested that the rigid attitude in law should be cast aside and replaced with a much-accommodating law.

Despite being a relevant law, the lawmakers must bear in the forefront of their minds that living in multiracial and multicultural countries, “one size does not fit all”.

Malaysia is one of, if not the only one. While the religious rulings are clear on this phenomenon, civil resistance is unnecessary.

Pound’s theory is that law encompasses interests that society deems necessary to be protected by law.

There are three groups of interests: (i) individual, interest of personality; (ii) public, the claims of the state; and (iii) social, interest in the security of social institutions.

When these interests clash with one another, the lawmakers have to balance the value of each and decide how many concessions should be made by each interest’s stakeholders.

Decriminalising, or permitting transgenders expressly is an individual interest advocated by a handful of people in Malaysia; protecting and maintaining the state’s tranquillity is a public interest.

When we delve into the individual interest from the perspective of society, empowering transgender people becomes a social interest, as society is also keen on rendering a nondiscriminatory living environment to all and sundry in the nation.

Having said that, the public interest is as well social. Society will not want to sacrifice its peace for the interest of the minority.

Otherwise, Malaysians will discover that we have jumped out of the frying pan into the fire, leaving the situation where the majority is in peace and the minority’s interest is not satisfied, into the soup where the majority is disrupted and the minority’s interest is fully satisfied.

In weighing up the conflicting interests between the opponents of transgenders and those whose beliefs do not ban them, would the better way out be to permit transgenders without discrimination and full access to all facilities and services, among the latter, and to impose restrictions so that the opponents will not be affected?

These restrictions could be mirrored in the way non-Muslims are prevented from propagating their religions to the Muslim community, in which transgender people should not urge others to convert, while enjoying their rights to live without discrimination.

This is the best way out in the authors’ opinion, consistent with Pound’s view, that the law is to achieve the maximum satisfaction of the needs with the minimum friction and commotion. – November 26, 2021.

* H’ng Zong Xian and Nabeel M. Althabhawi read The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.