Pertimbangan Hukum Pergantian Kelamin (Studi Penetapan Pengadilan Negeri Yogyakarta No. 517/ PDT.P/2012/PN. YK dan Penetapan Pengadilan Negeri Boyolali No. 54/PDT.P/2015/Pn.Byl)

Abstract

Indonesia is a legal state. To ensure the continuity
of the balance of relations between the citizen, legal
rules are needed that aim to create order within the
community as stipulated in the Law. Although it has
been regulated in the Law, there are still many
violations carried out by layers of society. Especially if
there are no legal regulations. Including the
phenomenon of transsexual. Along with the
development of technology and the times, many people
carrying out sex reassignment operations for the sake
of health or just follow the trend causing pro and contra
among the community in responding to transsexual due
to the absence of laws specifically regulating whether
or not totranssexual. However, even though there is a
legal vacuum, based on Article 10 paragraph (1) of Law
Number 48 Year 2009 concerning Judicial Power, the
judge may not reject the case that goes to court. So,
how do judges use the law in considering their
decisions?This type of research is library research by
making library materials as the main data source. The
theoretical framework used is the theory of judges'
consideration which includes the theory of legal
certainty, the theory of justice, and the theory of
expediency. While the approach theory used is
normative juridical, namely the method used in legal
research conducted by examining existing library
materials.The results of this study indicate that
although there are no specific legal rules regarding
transsexual, the judge must be able to explore, follow,
and understand legal values. Yogyakarta District Court
judges in granting transsexual requests only consider
positive law, while Boyolali District Court judges in
granting transsexual requests not only consider positive
law but also use Islamic law and MUI fatwa’s. In the
context of Maslahah, both Yogyakarta District Court
judges and Boyolali District Court judges, both
considered problems or benefits for applicants to
transsexual. As for the transsexual request in the court
it turned out to be requested after the sex operation
was carried out so that the function of the court was
only as a formal legality towards the practice of
transsexual. Supposedly if the law has a function as an
engineering so that the behavior of citizens is orderly
and in accordance with the value of health, then the
function of the court can assess whether the
transsexual is legally acceptable or not.