July 21, 2023
By Maryam Missal
Following the ruling of the Federal Shariah Court (FSC) against the provisions of the Transgender Rights Bill 2018, the National Database and Registration Authority (NADRA) has allegedly halted the registration of transgender people as reported by Nayyab Ali, the Transpersons Unit Head of the National Commission on Human Rights (NCHR).
Ali tweeted that she visited the Blue Area NADRA office in Islamabad on Thursday to update her home address, however she was denied service on the grounds that the office’s system was unable to register trans and other gender identities. She has since formally filed a complaint.
“I have been a registered Khawajasira since 2017, and my CNIC was correctly marked as ‘X’ in English to acknowledge my gender identity,” she wrote. “Denying me the right to update my address based on my transgender status is a serious violation of our right to identity.”
She also stated that NADRA’s actions are unconstitutional and in direct violation of Article 46 of the Election Act 2017 and the Supreme Court (SC) ruling of 2018.
Article 48 of the Election Act 2017 states that
The Commission shall take special measures for the registration of non-Muslims, persons with disabilities and transgender citizens in the electoral rolls as voters.
Speaking to Voicepk.net Ali said, “… originally there was an ‘X’ gender – a third gender which had further five subcategories. Post the FSC verdict, NADRA has completely removed it.”
She further shared that when she addressed the problem with Reema Aftab, Director Minorities Desk at NADRA, she responded that as soon as a writ is filed against the FSC ruling it will automatically reverse NADRA’s actions as well.
In another similar instance, a transgender person was denied registration for CNIC by NADRA. Their reason for this denial was “orders from head office”.
When questioned about the alleged ‘order’, NADRA staff refused to share it with the CNIC applicants stating that they are not allowed to share it.
To the contrary, advocate Saqib Jillani stated that NADRA is not authorized to impose such rules under the FSC judgement. According to Jillani,
“This is blatant opposition to the Electoral Act 2017”.
According to the Article 203-D of the jurisdiction of the FSC granted by the Constitution of Pakistan,
If the Court [FSC] decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal.
Nayyab Ali has expressed her grave concerns on the matter and shared her conversation with NADRA officials, she said,
“I reminded them that our identity cards were authorized by the SC back in 2009, and this decision was further upheld in 2018 by the Chief Justice of Pakistan. The FSC judgment is still not enforceable until the appeal period ends or an appeal is filed and decided by the SC. Lower courts do not have the power to overturn superior court judgments.”
Voicepk.net has received a copy of the circulated letter that indicates that the unconstitutional order was issued by the Head of Operations NADRA.
Journey of Transgender Act
To give legal recognition to transgender people and ensure that discrimination against them in all spheres of life will be criminalised, the National Assembly passed the Transgender Persons (Protection of Rights) Act in 2018.
The Transgender Persons (Protection of Rights) Act 2018 and some of its provisions were declared incompatible with Sharia by the FSC earlier this year. The FSC reserved judgement on the arguments raised against the Transgender Act and determined that transgender people cannot alter their gender.
The FSC ruled that transgender people cannot refer to themselves as males or women and that the government must grant transgender people all legal protections. The Court also declared that the Act’s Sections 2(f) (which defines “gender identity”) and 2(n)(iii) (which defines “Transgender Person”) violate Sharia.
The Transgenders Act’s sections 3 (recognition of the transgender person’s identity) and 7 (right to inherit) were likewise declared incompatible with Sharia by the FSC.
Earlier this month civil society and transgender rights activists, including Nayyab Ali and Muhammad Sarim Ali, submitted a petition against FSC’s ruling in the Supreme Court of Pakistan.