Perceiving gender

Published November 27, 2021
The writer is a barrister.
The writer is a barrister.

MOST people go their entire lives without ever feeling any need to question their gender — a blissful ignorance, one may imagine, so very easily taken for granted. For them, gender is a given, and so, they walk in their bodies with great comfort and ease, a kind of absentmindedness, like a hand stuffed inside its custom-made glove. Others though are far less lucky, and find themselves trapped in bodies that seem alien to their self and incongruent to their soul, bodies whose contours do not seem to fit, bodies that feel borrowed or stolen or acquired, theirs but not really theirs, and always, never quite ‘right’.

This is the lot of any person whose gender lies in flux in a society that continues to treat this fluidity as a dangerous aberration, as something that must be controlled and caged. A few years ago, our parliamentarians wisely abandoned this unkind attitude by enacting the Transgender Persons (Protection of Rights) Act of 2018 — a law that counts as one of the most sophisticated and progressive pieces of legislation on the subject of gender minorities, not only in this region, but across much of the world, something probably attributable to the fact that it was drafted after meaningful consultation with numerous stakeholders — the Council of Islamic Ideology, the human rights ministry, legal experts, social workers and most importantly, its primary beneficiaries, members of our khawaja sira communities.

Expressions of gender nonconformity are shamed and demonised.

Aside from its conflation of intersex and transgender people, which does leave much to be desired, it more or less elegantly contextualises the term ‘transgender person’ to our local context and states that it may include: anyone born with a “mixture of male and female genitalia” or “congenital ambiguities”; any person that has undergone “genital excision or castration”; and lastly, but no less crucially, “any person whose gender identity and/or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth”.

Section 3 further provides every person so described with a legal right to be recognised as per their “self-perceived gender identity”, a term which has been defined as their “innermost and individual sense of self”, and which may or may not correspond to the “sex assigned at [their] birth”. Apply all this legalese to everyday life, and one realises that it does nothing more than give members of our khawaja sira communities (or any intersex or transgender person that is not a part of these communities) with the most basic and the humblest of dignities — the simple right to go to government offices and get their correct gender registered on their official documentation — their CNIC, their driving licence, their passport, whatever have you.

Lately, these provisions have suddenly been called into question. A petition filed before the Federal Shariat Court, and more recently, a bill tabled by a Jamaat-i-Islami senator, have both challenged this aspect of the law on the ground it is ‘unIslamic’ — ostensibly because it leaves open the possibility of people ‘faking’ their gender. What they offer as a solution is to compel all transgender and intersex people to undergo a clinical examination at the hands of a multi-member ‘medical board’ before availing any benefit under the law.

This is an old issue, one that was duly considered during the drafting process of the law and (thankfully) rejected for its intrusive, degrading and humiliating nature. It is an affront to human dignity and will end up serving no purpose other than to bureaucratise the procedure and spin a thick web of red tape around it, rendering it inaccessible to a sizeable section of its intended subjects. Worse still, it will pathologise gender, make people think of its variance as a disease, a sickness, something to be ‘cured’.

Besides, to paraphrase the ever-witty Bindiya Rana, if the principle of equality being trumpeted around everywhere really does hold true, why are she and her community the only ones to be subjected to a medical examination before recording their gender? If the state really does have such an unhealthy obsession with knowing the exact genitalia of its citizenry, why is it not going around inspecting the bodily anatomy of every person who applies for an ID card? After all, who knows, we could all be surrounded by ‘fake’ men and ‘fake’ women!

Finally, on to the numerical bogeyman: the number of cases processed since the Act’s promulgation (28,000 applications in total) is being paraded around as a ‘clear sign’ of abuse. What it most likely indicates though is that Nadra is processing years and years of backlog — there are literally hundreds of thousands of transgender and intersex people in the country (contrary to our last census, which rec­o­rds them at a ludicrous 10,418, a statistical impossibility in a population of over 200 million). Awa­reness is slowly spreading and growing numbers are thus a positive indicator, not an alarming one.

As with countless other countries, gender-variant people do not have an easy life in Pakistan. Expressions of gender nonconformity — be it through dress or speech or mannerisms — are shamed and demonised, first inside our homes, and then before the public at large, which bullies and berates it in streets and schools and parks and playgrounds. The Act of 2018 had finally offered a little reprieve — a small glimpse of hope and possibility. Rather than watering it down, we should be strengthening its contents and working for its full implementation. For that to occur, there are miles and miles left to tread.

Gender is an infinitely complex and intersectional social reality, one that the global scientific community is still struggling to fully understand. That being said, the large body of knowledge accumulated so far makes at least one thing perfectly clear — due to its deeply intimate nature, the only person competent enough to make a decision as to their gender is the person whose gender is under discussion. They alone are capable of locating the site of their pain, and thus, they alone are fit to lead us to the source of its healing.

The writer is a barrister.

Published in Dawn, November 27th, 2021

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