The Federal Shariat Court (FSC) on Friday struck down a law aimed at protecting transgender people’s rights, declaring that some of its provisions were un-Islamic.
Acting FSC Chief Justice Dr Syed Muhammad Anwer and Justice Khadim Hussain announced the reserved verdict on a set of petitions challenging the Transgender Persons (Protection of Rights) Act 2018.
The Shariat court declared that Section 2(f) (definition of ‘gender identity’), Section 2(n)(iii) (definition of ‘Transgender Person’), Section 3 (recognition of the identity of a transgender person), and Section 7 (right to inherit) of the act were against the injunctions of the Holy Quran and Sunnah.
Detractors have blamed the law for allegedly having the potential to legally recognise gay and lesbian rights in the name of transgender people’s rights.
In the 108-page judgement, the court concluded that the use of the term “transgender” for gender identity based on self-perceived identity, contrary to the biological sex of the person, was against the injunctions of Islam.
The court said it arrived at the conclusion after hearing the arguments of the parties and experts at length and reviewing the research and other material provided by the parties.
“We have come to the conclusion to first declare that according to Islamic injunctions as laid down in the Quran and Sunnah, the gender of a person is subject to the biological sex of a person, therefore, the gender of a person must conform to the biological sex of a person,” it said.
The court elaborated that many Islamic commands and acts of worship — such as salat (prayers), fasting, Haj and the distribution of inheritance — were subject to the biological sex of a person and not the gender.
It noticed that in Section 2(n) of the act, five different terms — namely intersex, eunuch, transgender man, transgender woman, and khawajasira — had been included in one definition of “transgender person”.
“Whereas, the terms Intersex, eunuch and khawajasira refer to biological variations in sex characteristics of a person that do not fit into male or female classification, while ‘transgender man’ and ‘transgender woman’ refer to individuals whose self-perceived gender identity differs from the sex they were assigned at birth or from the sex they have biologically,” the court said.
It said that combing these terms was the main cause of confusion and conflation about the law. The Islamic injunctions recognised the existence of intersex people, the judgement said, adding that Islamic law and jurisprudence provided an intersex person with all rights mentioned in the act.
Similarly, Islamic injunctions also recognised the existence of eunuch people, also called khawajasira, a term the law said was wrongly placed in Section 2(n)(iii) instead of Section 2(n)(ii), it said.
It said Section 2(n)(ii) of the act was not against the injunctions of Islam but needed clarity, as according to Islamic injunctions, a person could not undergo castration to become eunuch at his will, it said, adding: “It is only allowed on medical requirements and on medical grounds.”
However, Section 2(n)(iii) was against Islam because many Islamic obligations depended on the biological sex of a person, which could not be based on the innermost feelings of a person or self-perceived identity about his or her “gender” being different from the sex they were assigned at birth, the court said.
Referring to Section 3, which allows a person to get their “gender identity” changed from the biological sex in identity documents like the CNIC and driving licence, the judgement said allowing any person to change their gender according to their inner feelings or self-perceived identity would create many serious religious, legal and social problems in society.
For instance, under Section 3, a person who was biologically male could have the gender identity of a “transgender woman” and thus could legally access socio-religious gatherings or public places meant exclusively for women. The same would be the case of a person who was biologically a female and got the gender identity of a “transgender man” and would legally be considered as male and thus would pave the way towards many socio-religious problems in society, the court said in the judgement.
The judges said they agreed with petitioners that based on the “prohibition against discrimination”, as envisaged in Section 4 of the act, the right to privacy of females in society would become vulnerable and could be violated.
This law, they said, would pave the way for criminals in society to easily commit crimes like sexual molesting, sexual assaulting and even raping females because it made it easy for a biological male to get access to the exclusive spaces and gatherings of females in the disguise of a “transgender woman”.
Blocking the way of evil in society was the duty of the state, the court said, adding that Section 3 of the act was against Islam because the biological sex of a person should determine the gender identity of a person.
Likewise, Section 7 was also against Islam because no one could get any share of inheritance based on self-perceived gender identity.
TRANSGENDER COMMUNITY SLAM VERDICT
Reacting to the FSC decision, the transgender community termed it an “attack on the rights of the transgender community by religious parties”.
Speaking after the FSC’s decision, Nayab Ali, director of Transgender Rights Consultants Pakistan (TRCT), said the decision was an attack on the rights of the community and an attempt to deny transgender persons their rights.
Addressing a news conference at the National Press Club (NPC), she said the entire transgender community was in mourning after the decision.
“This was because the first step by the state to grant rights to transgender people, providing them safety and security has been turned down,” she said, adding that, “any court cannot take away basic human rights from the citizens of Pakistan and this country also belongs to the transgender persons as much as it belongs to clerics and the religious people”.
“They should stop robbing us of our rights,” Sara Imran, who has become a successful businessperson, said. The transgender community was as old as human kind itself, but in modern times, laws were enacted to provide rights and security to every community, she added.
“We speak of the rights of the birds and animals as well as environment protection,” Sara Imran said.
Speakers said they would file an appeal against the FSC’s decision, and the same should be done by the federal and provincial governments as public opinion was in favour of their community.
Meanwhile, Amnesty International has called upon the government of Pakistan to reject all proposed amendments to the Transgender Act that violated international human rights laws and standards.
In a message, Amnesty said the government must stop any attempt at amending the act that prevented transgender people from obtaining official documents, which reflected upon their gender identity without complying with abusive and invasive requirements.
It also stated that the denial of essential rights of transgender and gender-diverse persons should not be guided by assumptions rooted in prejudice, fear and discrimination.
Amnesty International said some observations made by the court were based on presumptive scenarios rather than empirical evidence.
Rehab Mahamoor, research assistant at Amnesty International, said: “Any step taken by the government of Pakistan to deny transgender and gender-diverse people the right to gender identity is in contravention of their obligations under international human rights law, namely the International Covenant on Civil and Political
Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to which they are a state party.“
Amnesty International said the Pakistani government should take immediate and urgent steps to stop the reversal of essential protections, without which transgender and gender-diverse people will be even more at risk of harassment, discrimination and violence.
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