While Pakistan and its mainstream media remained engulfed in a political fire fueled by former Prime Minister Imran Khan’s arrest on May 9, the Federal Shariat Court (FSC) released its verdict on a petition filed against the landmark Transgender Persons (Protection of Rights) Act 2018. In its ruling, the FSC struck down three core sections of the law, declaring them un-Islamic.
The FSC is a constitutional court in Pakistan that examines laws to ensure compliance with Shariah (Islamic law).
The Khwaja Sira (the indigenous term for “third gender”) community of Pakistan continues bagging new wins despite treading a path paved with challenges. On June 7, transgender rights activist Shahzadi Rai became the first to represent the marginalized community in the Karachi Metropolitan Corporation’s city council – not only since Pakistan’s independence in 1947, but since the era of colonial rule. In the same week, for the first time in the country’s history, activists in the transgender community sued a hospital over discriminatory behavior toward HIV patients.
While the community is busy fighting battles on every front, the verdict is likely to further compound existing issues.
On May 19, the FSC announced its verdict striking down core sections of the Transgender Persons Act 2018 – sections relating to gender identity, the right to self-perceived gender identity, and the right to inheritance as per the gender declared on the national identification card and Pakistan’s law of inheritance. According to the FSC, these sections do not conform with their interpretation of Islamic principles.
The verdict has received widespread condemnation by human rights activists. The Human Rights Commission of Pakistan tweeted that the verdict “seeks the erasure of an entire demographic and its fundamental rights.” Amnesty International urged Pakistan to reject the proposed rollbacks on the act.
“The sections struck down mainly address issues of our identification – if that is removed, then all the other sections and corresponding laws would not be implemented,” Rai, the newly elected member of Karachi’s city council, told The Diplomat. “If our identification has become a controversy and has been declared haram (forbidden under Islamic laws) then it’ll definitely further marginalize an already marginalized community.”
The Khwaja Sira Community and the Transgendender Act 2018
The Khwaja Sira community of Pakistan has a long but largely forgotten history, dating back to the Mughal Empire that ruled the Indian subcontinent from 16th to 19th century. The term “Khwaja Sira” was used as a title in Mughal courts for a wide range of transgender, castrated, and gender-nonconforming advisers and officials. As per trans rights activists, there was acceptance of the community in the precolonial era and they were “respected and trusted.”
Things changed with the arrival of the British, who brought along their binary understanding of gender. The Criminal Tribes Act of 1871 made wearing female clothing a punishable offense for men and codified gender norms. Since then, the vestiges of this colonial law linger in the society. Much of the discrimination faced by the community today stems from the continuation of the colonial legacy after Pakistan’s independence.
Regardless, in the last decade and beyond, many major breakthroughs were made. In 2009, the Supreme Court of the country ordered the inclusion of the “third gender” in the national identity form. In May 2018, one of the world’s most progressive trans rights bills, the Transgender Persons Act, was passed. The act allowed for self-perceived gender identification, banning discrimination against the ostracized community while calling for establishment of state-run community centers for transgender people, where they can seek shelter and access basic health facilities. It further guaranteed the right to inheritance, opportunity to run for public office, and other fundamental rights.
“The Pakistani public has never been able to imagine a Khwaja Sira beyond one who is begging on streets or dancing at some function. What this law did was give the Khwaja Sira people the opportunity to be more than dancers at events or beggars on the streets,” Mehrub Moiz Awan, a medical doctor and trans rights activist, told The Diplomat.
“Khwaja Siras suddenly had this idea that they can work in police protection units, in the Ministry of Human Rights, etc. because there is a quota, we can run for elections. We were no longer asking for charity but a seat at the table.”
However, like many laws in Pakistan, on the implementation front much has been lacking.
Awan added that while the act did a lot of good, it has loopholes due to the lack of penal provisions.
“The law gave us visibility, but visibility without protection is just targeted violence – there is no protection against hate crimes against the community in the law,” she said.
Further, some legislators and clerics from religious political parties like the Jamaat-e-Islami (JI) and Jamiat Ulema-e-Islam (JUI-F) argued that the act was against Islamic teachings on gender identity. Fazlur Rehman, chief of the JUI-F and an ally in the coalition government, filed a petition in the FSC against the Transgender Persons Act. Senator Mushtaq Ahmad Khan of the JI also challenged the law.
“The law should only encompass those who cannot be categorized as male or female at birth based on their sexual or reproductive anatomy,” Khan told Voice of America in an interview. Khan has advocated for establishing medical boards to conduct gender examinations.
This proposal has been met with harsh criticism by activists.
“The 2018 bill is one of the most progressive ones in the world with regards to transgender rights, and Pakistan got many praises” after passing it, said Rai.
“Unfortunately Pakistan doesn’t deserve that [praise] because our society and certain religious political parties are living in the Stone Age. We will not compromise on the section for gender identification.”
The Battle of Gender and Sex
The ruling passed by the court reads: “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.”
Activists and lawyers argue that the verdict is based on flawed and faulty understanding of gender and sex.
“Their attempt to collapse sex and gender into one form, arguing that your gender identity must conform to sex assigned at birth, is rooted in scientific inaccuracies and transphobia,” said Awan. She added that with the verdict, Pakistan has “set a dangerous judicial precedent where you might now be regulating people or morally policing people based upon your subjective perception of masculinity and femininity.”
Awan believes that it is a “battle of semantics” with the Pakistani right-wing. “They have a problem with the word ‘self-perceived’ because they think that self-perception is some magical ability – that people stupidly wake up one fine morning and decide to change their gender,” Awan said.
Lawyer Asad Jamal argued that the verdict can be criticized on several levels, “the first being the manner in which the FSC has tried to understand the definition of transgender persons as provided in Section 3 of 2018 Act and how the FSC judges understand the Islamic view of who a transgender is and who is not.
“The court has ruled that Islam does not recognize the right to self-perceived gender identity, coupled with the assertion of the court that Quran only recognizes male and female as the two genders, and there is no difference between gender and sex provided in Islam,” Jamal, who was present for the hearings of the petition as a legal representative of some trans rights activists, told The Diplomat. “I think all these assertions that the court makes in light of their understanding of what Islam says are logically flawed and have no basis in Islamic teachings, and they’re obviously contrary to an ever-evolving understanding of what gender and sex are.”
In its definition of transgender person, the 2018 Act includes intersex people, eunuchs, Khwaja Siras, transgender men, and transgender women.
The court stated that this inclusive definition is confusing, arguing that “whereas, the terms intersex, eunuch and Khawaja Sira 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.”
According to the court the terms “transgender men” and “transgender women” are un-Islamic because Islam doesn’t recognize a distinction between sex and gender identity.
“All this is contrary to factual understanding of the transgender persons in the literature available. To declare a particular kind of transgender person as deprived and another as suffering from sexual infirmity is deeply problematic,” explained Jamal. “As this law recognizes – and as current, progressive literature emerging from interdisciplinary scholars states – a transgender [person] is anyone whose perceived gender identity is not the same as the sex assigned to them at the time of their birth. This is an idea that has found recognition among a large number of scholars who study human beings and their gender and constructions of their roles by society.”
“Indeed, none of the Quranic verses or hadith referred to by FSC support its conclusion that recognition of any distinction between sex and gender is contrary to Islamic injunctions,” wrote Sara Malkani, a lawyer.
The court further stated that it feared the 2018 law could lead to crimes such as sexual molestation, rape, and assault against women because it “makes it easy for a biological male to get access to the exclusive spaces and gatherings of females in the disguise of a ‘transgender woman.’”
“They base their argument on morality, stating that the law would contribute to immorality, but it ends up becoming the question: what is deemed immoral?” Awan said. “Morality will always be [a question of] how women are expressing themselves, whether it is transwomen or ciswomen. That morality is never child abuse, sexual abuse, domestic violence or rape – or the number of poor people that are dying hungry in the country or of unemployment.”
Unless successfully appealed in the Supreme Court, the ruling of the Federal Shariat Court will become effective in six months. Awan said the community will be challenging the verdict in the Supreme Court.
“There are serious and convincing arguments against the verdict. If there will be fair and reasonable hearings in the Supreme Court, there is a very fair chance that this ruling by the FSC will be set aside. But of course there is a lot of politics and propaganda surrounding it. It is a question of time to know what approach SC would take,” Jamal said.
Nevertheless, “this will be a battle that must be fought.”