ISLAMABAD: The Federal Shariat Court (FSC) on Wednesday sought assistance of Attorney General for Pakistan (AGP) Khalid Jawed Khan on a set of petitions challenging the Transgender Persons (Protection of Rights) Act, 2018, for being repugnant to Islamic injunctions.
A full bench of the FSC, comprising Chief Justice Mohammad Noor Meskanzai, Justice Dr Syed Mohammad Anwar and Justice Khadim Hussain M. Shaikh, heard the petitions moved by Irfan Khan and others. The FSC has assumed its jurisdiction in exercise of power under Article 203-D of the Constitution.
Keeping in view the importance of the law, the FSC issued a notice to the AGP and ordered that any person who intended to become a party in the case may implead them in the matter.
The court also allowed TV anchor Oriya Maqbool Jan, Ayesha Mughal and Bubbly Malik to become parties in these petitions. These individuals have now been arrayed as petitioners in the Shariat petitions.
Later Ayesha Mughal, a transgender lecturer, told Dawn she would file her reply before the court. She said transgender community had become a vulnerable class as 80 transvestites had been murdered during the last four years but none of the killers had been convicted and they were roaming free.
During the hearing, the court observed it had become necessary to seek assistance of the AGP since one section of the society believed that the rights of transvestites had been usurped through the law while others said the law was against injunctions of the religion.
The court however observed that transgender persons being citizens of the country had all rights enshrined in the constitution.
On May 8, 2018, the National Assembly had enacted the Transgender Persons (Protection of Right) Act to provide legal recognition to transgender persons and prohibit discrimination and harassment. The law places an obligation on local governments to provide for welfare of the community.
The law also provides definition of the transgender by highlighting that transgender men, transgender women and any person whose gender identity or gender expression differs from the gender assigned at birth are eunuchs.
The law prohibits discrimination against transgender persons in education, employment and healthcare and harassment within and outside of the home on the basis of gender, gender identity and gender expression. Transgender persons are guaranteed all fundamental rights enshrined in the Constitution of Pakistan, it emphasises.
In addition, the law also recognises transgender persons’ right to property inheritance, voting, education, employment, healthcare, access to public places and to hold public offices.
The law was made after the Supreme Court in Sept 25, 2012 held that transgender persons were entitled to all rights guaranteed by the constitution and enjoyed by other members of the society.
The verdict came after a three-judge bench, comprising Chief Justice Iftikhar Mohammad Chaudhry, Justice Jawwad S. Khawaja and Justice Khilji Arif Hussain, disposed of a petition moved by Islamic jurist Dr Mohammad Aslam Khaki seeking emancipation of hermaphrodite children by finding out ways for the welfare of this segment of the society living to beg, dance and engage in prostitution.
The issue cropped up when in 2009 police arrested some transvestites by raiding merry makers in Taxila. From there Dr Khaki picked up the idea of conducting research on the condition of such children and discovered that they were the most oppressed and deprived segment of the society subjected to every day humiliation and molestation.
Dr Khaki filed the petition for the welfare of the unfortunate and vulnerable people by seeking establishment of a commission to emancipate effeminate men ostracised by the society for no fault of theirs.
The Supreme Court was told that usually hermaphrodite children were abandoned to the world of merry makers. Such children were handed over to gurus (eunuch leaders) at the time of their birth or at a very tender age and as a result they never got any chance to get education rather they were either trained either to beg, dance on different occasions or forced into prostitution.
They lived in sizeable communities, divided into clan groups, residing mostly in slums and presided over by a leader or guru and constantly denied of the right of inheritance and fundamental rights as they could not even travel openly in trains, buses or use facilities available to common citizens of the country, the apex court was told.
Published in Dawn, October 28th, 2021