The Federal Shariat Court (FSC) ruled on Friday that a person cannot change their gender at will and declared certain sections of the Transgender Persons (Protection of Rights) Act, 2018 against Sharia.
Acting FSC Chief Justice Dr Syed Muhammad Anwer and Justice Khadim Hussain announced the reserved verdict on a set of petitions challenging the law.
The National Assembly had enacted the Transgender Persons (Protection of Right) Act in 2018 to provide legal recognition to transgender persons and ensure that discrimination against transgender persons in various walks of life shall be punishable.
Hailed as a ‘landmark’ law that offered protection to a marginalised community, the legislation however has been embroiled in litigation scrutiny since its passage.
In September 2022, the FSC had taken up petitions challenging the legislation — making Jamaat-i-Islami’s Senator Mushtaq Ahmed and TV anchor Orya Maqbool Jan parties in them along with transgender persons Almaas Boby and Bubbly Malik.
Simultaneously, amendments to the law have also been sought under the Intersex Persons (Protection of Rights) (Amendment) Bill, 2022, which called for the deletion of all those sections deemed against the injunctions of Islam and the Constitution.
During the hearing today, the court declared Sections 2(f) (definition of ‘gender identity’) and 2(n)(iii) (definition of ‘Transgender Person’) of the act to be against Sharia.
The FSC also ruled Sections 3 (recognition of identity of transgender person) and 7 (right to inherit) of the Transgenders Act 2018 to be against Sharia.
In a written order issued later, a copy of which is available with Dawn.com, the court said that it had heard the arguments of the parties and experts at length, and reviewed research and other material provided by the parties.
“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.”
Elaborating on the declaration, the order stated that there were many rulings or “Ahkamat and Ibadaat of Islam which are subject to the biological sex of a person and not the gender of a person”.
“Such Ahkamat include the performance of salat, keeping of Som, the performance of Haj, and distribution of inheritance, etc,” it highlighted.
“We have noticed that in section 2(n) and of the Impugned Act five different terms; namely (i) intersex, (ii) eunuch, (iii) transgender man, (iv) transgender woman and (v) khawajasira are included in one definition of ‘transgender person’.
“Whereas, the terms Intersex, eunuch and khawajasira 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,” the court said.
It noted that the inclusion of all the different terms in one single term “is the main cause of confusion and conflation about the impugned Act because not only all those persons who fall within the category of any of the five categories of persons used in section 2(n) are different physically but the ruling of Islamic injunctions according to Quran and Sunnah about them are also different on the basis of their biological sex”.
The court said that Islamic law and jurisprudence provided intersex persons with all the rights mentioned in the law. “An Islamic State may take affirmative actions to support intersex persons being special persons who are members of a discriminated community and are deprived of their fundamental rights which are guaranteed by our religion. They are entitled to each and every fundamental right provided by the Constitution of Pakistan 1973 to every citizen of the Islamic Republic of Pakistan.”
“Hence, Section 2(n)(ii) of the Impugned Act is not against the injunctions of Islam but needs clarity as identified hereinabove that according to Islamic injunctions, a person cannot undergo castration to become a eunuch at his will. It is only allowed on medical requirements and on medical grounds,” the FSC ruled.
Referring to Section 3 of the act, the court noted that it allowed a person to get his or her “gender identity” changed from his or her biological sex in identity documents with Nadra on the CNIC, CRC, driving licence and passport.
“Permitting any person, male or female, to change his or her gender in accordance with his or her inner feelings, or self-perceived identity, which may not conform to the sex assigned to that person at the time of birth, will create many serious religious, legal and social problems in society under section 3 of the impugned Act by having the gender identity of a ‘transgender women’ a person who is biologically male will be legally able to get access to socio-religious gatherings of females or public places meant exclusively for females, and same will be the case of a person who is biologically a female and gets the gender identity of ‘transgender man’ under Section 3 of the impugned Act, she will legally be considered as male, which will pave the way towards many socio-religious problems in the society.”
In the written verdict, the court also stated that it was “inclined to accept the arguments of the petitioners that on the basis of ‘prohibition against discrimination’, as envisaged in section 4 of the impugned Act, the right to privacy of females in our society will become vulnerable and can be violated”.
“As stated herein before that this law will pave the way for criminals in society to easily commit crimes like sexual molestation, sexual assault and even rape against females because this law 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’.
“Hence, blocking the way of evil in a society is the duty of the State under the principles of Sadd az-Darai or the principle of blocking evil. Hence, Section 3 of the Impugned Act is declared against the injunctions of Islam as laid down in the Holy Quran and Sunnah as the biological sex of a person can only determine the gender identity of a person male or female,” the verdict added.
On Section 7 of the act — which talks about the right of inheritance of transgender persons — the court said: “[It] is also against the injunctions of Islam as laid down in the Holy Quran and Sunnah; because no one can get any share of the inheritance on the basis of ‘self-perceived gender identity’ which is possible under Section 7 read with other sections of the impugned Act.
“According to the Injunction of Islam as laid down in the Quran and Sunnah all the legal shares of inheritance are to be divided among the legal heirs of the deceased on the basis of their biological sex.”
“For these reasons stated hereinabove, we declare Section 2(f) containing the definition of ‘gender identity’, Section 2(n)(iii), Section 3 and Section 7 of the impugned Act, titled, ‘The Transgender Persons (Protection of Rights) Act, 2018’ as against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH) and will cease to have any legal effect immediately,” the FSC ruled.
Hence, the verdict stated that the petitions challenging the Transgender Persons (Protection of Rights) Act, 2018 had been accepted.
“Consequently, the provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to the above-mentioned Sections of the impugned Act, which have been declared as against the injunctions of Islam, shall also cease to have legal effect,” it added.