May 19, 2023
By Xari Jalil
Sections 2(f), 3, and 7 of the Transgender Act 2018 were declared against Islamic teachings by the Federal Shariat Court on Friday much to the immense disappointment of the transgender community as well as other human rights activists who had been vying for basic rights to be upheld.
The almost 100-page verdict is still awaited, says human rights lawyer Asad Jamal, who has been fighting the case on behalf of the respondents – the Federation of Pakistan, Ministry of Human Rights, Shemale Association for Fundamental Rights, and Nayyab Ali. However, the ruling on Friday attempted to make the law toothless after mainly nullifying a clause that allows for ‘self-perceived gender identity’.
Nayyab Ali, the incharge of the Transgender Protection Unit under the Ministry of Human Rights says that they reject the ruling.
“This verdict was reserved in a rush, mainly to appease the far right, and to ensure it is ruled before the judge retires which is tomorrow. As a result, our arguments were not heard properly,” she said while speaking to Voicepk.net. “We have lived on this land for hundreds of years, and we will not give them the freedom to let our rights be trampled.”
Nayyab says they have six months to file a case in the Supreme Court and they would definitely not let this matter go.
QUESTION OF IDENTITY
Meanwhile, Asad Jamal says that the question of the identity of transgender persons is complex and that before the enactment of the said provisions of the Transgender Persons (Protection of Rights) Act, 2018 the Supreme Court since the mid-2000s had already dealt with the complexity of the identity issue of transgender persons, and clarity had been given through various verdicts and orders passed by the apex court.
This was followed by the enactment of the Transgender Persons (Protection of Rights) Act, 2018. In none of the orders was there any pronouncement as to the requirement of medical examination to determine sex or gender, he said.
In his closing remarks, Jamal stated that the Pakistani legal system could not do medical examinations of people’s bodies for the purpose of identifying their genders. “It was never meant to perform this task,” he said. “Similarly, medical experts cannot be assigned the task of examining bodies for determining, affirming or denying, self-identification by the persons in question. There’s no such requirement when one declares oneself to be male or female; it would then be a violation of Article 25 of the constitution of Pakistan which prohibits discrimination on the basis of sex. If a man or a woman do not have to be declared thus through a medical board, why should a transgender?”
The requirement of a medical examination would be a violation of the right to dignity as guaranteed under Article 14 of the constitution, he said.
“There is no sufficient number of medical professionals anywhere in the world who understand the complex biological, psycho-social and environmental factors that influence gender identity and the knowledge is continuously evolving,” writes Jamal in his court argument. “Transgender health is not part of the medical curriculum here and therefore, a legal requirement for a medical board – if imposed by this Court– would only lead to false conclusions and characterizations.”
“Ever since the controversy with the Act began, we are also not being issued CNICs under Gender X,” said Nayyab. “Those with these cards are in a better position. But everything is about identity. If we get our identity, only then can we get our basic rights – health, education, and basic rights. They cannot just seize our rights and throw them out the window.”
“Where the X cards are concerned, it is a little complicated because these preceded the Transgender Protection Act 2018 and were a result of a High Court judgment,” says transgender activist and researcher M*. “If the FSC ruling has mentioned anything about the X cards we can only wait for the detailed verdict to come out. However, she says the judgement does call the rules ‘un-Islamic’ which in a way provides legal cover to X cards.”
‘HOW IS IT UN-ISLAMIC?’
Asad Jamal says that the biggest issue that the petitioners made was that they had failed to identify which injunctions of Islam were actually violated by the impugned provisions in the Act.
“The law was enacted by the country’s parliament after detailed discussions and nothing was found un-Islamic in it. If the FSC believes it is un-Islamic, the government should actually consult the parliament on it,” he says. “But no such injunctions have been found in the Holy Quran or Sunnah that have been violated, and we challenged the petition on this exact basis.”
Nayyab points out that the idea of being un-Islamic would ultimately move beyond to the community as a whole – not just be limited to the law. And if that happens, there will be a rise in violence.
This kind of narrative will only prompt more murders and increase trans-phobia, she says.
“Already three transpersons were killed in Karachi and we fear that the community may now be perceived as as ‘un-Islamic’.”
Petitioner Hammad Hussain makes some very drastic and radical claims in the court petition.
The claim given in the petition says that the Transgender Protection Act 2018 was actually providing legal cover to ‘gays’ and ‘lesbians’ and that it may give rise to he
In her response to the petitioners, Aisha Mughal, representing the HR Ministry, the Transgender Persons (Protection of Rights) Act, 2018 specified that this was a law that is not about sexual orientation at all, or about ‘gays’ and ‘lesbians’ as alleged in the petition, and if this continues then it would ‘open the gates to a flood of immorality and ‘harram’ practices in the Islamic society which will ultimately give a shoulder to the International Satanic Agenda of gays and lesbians being promoted in the western world.
Sahih Bukhari is quoted saying, “Anything leading to haram is also haram.”
It further states that the definition of ‘transgender in Section 2(n) of the Transgender Act is a person who is either intersex (khusra – with a mixture of male and female genital features and congenital abnormalities); eunuch assigned male at birth but who undergoes genital excision or castration; or a transgender man or women, (Khwaja Sira) or any person whose gender identity or gender expression differs from the social norms and cultural expressions based on the assigned at birth.
The petitioner also raises objections with eunuchs saying that a person who became a eunuch by genital excision or castration committed a heinous crime in the light of Surah-al-Nisa.
However, the response said that ‘it is denied that the definition provided in section 2(n) was in violation of Surah-al-Nisa. It is also vehemently denied that “genital excision or castration” is against the injunctions of Islam or is “heinous” in light of the holy verse referred to by the petitioner.’
It also says that the Bill allows people to register as their self-perceived identity which includes marriage registration and this has a chance of providing legal cover to same-sex marriages.