ISLAMABAD: The Federal Shariat Court (FSC) has struck down a law aimed at protecting transgender people’s rights, declaring that some of its provisions were against Islamic injunctions.
Acting FSC Chief Justice Dr Syed Muhammad Anwer and Justice Khadim Hussain on Friday announced the reserved verdict on a set of petitions challenging the Transgender Persons (Protection of Rights) Act 2018.
The Shariat court declared that Section 2(f) (definition of ‘gender identity’), Section 2(n)(iii) (definition of ‘Transgender Person’), Section 3 (recognition of the identity of a transgender person), and Section 7 (right to inherit) of the act were against the injunctions of the Holy Quran and Sunnah.
Detractors have blamed the law for allegedly having the potential to legally recognise gay and lesbian rights in the name of transgender people’s rights.
Says person’s gender must conform to biological sex, can’t be changed at will
In the 108-page judgement, the court concluded that the use of the term “transgender” for gender identity based on self-perceived identity, contrary to the biological sex of the person, was against the injunctions of Islam.
The court said it arrived at the conclusion after hearing the arguments of the parties and experts at length and reviewing the 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,” it said.
The court elaborated that many Islamic commands and acts of worship — such as salat (prayers), fasting, Haj and the distribution of inheritance — were subject to the biological sex of a person and not the gender.
It noticed that in Section 2(n) of the act, five different terms — namely intersex, eunuch, transgender man, transgender woman, and khawajasira — had been 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 said that combing these terms was the main cause of confusion and conflation about the law. The Islamic injunctions recognised the existence of intersex people, the judgement said, adding that Islamic law and jurisprudence provided an intersex person with all rights mentioned in the act.
Similarly, Islamic injunctions also recognised the existence of eunuch people, also called khawajasira, a term the law said was wrongly placed in Section 2(n)(iii) instead of Section 2(n)(ii), it said.
It said Section 2(n)(ii) of the act was not against the injunctions of Islam but needed clarity, as according to Islamic injunctions, a person could not undergo castration to become eunuch at his will, it said, adding: “It is only allowed on medical requirements and on medical grounds.”
However, Section 2(n)(iii) was against Islam because many Islamic obligations depended on the biological sex of a person, which could not be based on the innermost feelings of a person or self-perceived identity about his or her “gender” being different from the sex they were assigned at birth, the court said.
Referring to Section 3, which allows a person to get their “gender identity” changed from the biological sex in identity documents like the CNIC and driving licence, the judgement said allowing any person to change their gender according to their inner feelings or self-perceived identity would create many serious religious, legal and social problems in society.
For instance, under Section 3, a person who was biologically male could have the gender identity of a “transgender woman” and thus could legally access socio-religious gatherings or public places meant exclusively for women. The same would be the case of a person who was biologically a female and got the gender identity of a “transgender man” and would legally be considered as male and thus would pave the way towards many socio-religious problems in society, the court said in the judgement.
The judges said they agreed with petitioners that based on the “prohibition against discrimination”, as envisaged in Section 4 of the act, the right to privacy of females in society would become vulnerable and could be violated.
This law, they said, would pave the way for criminals in society to easily commit crimes like sexual molesting, sexual assaulting and even raping females because it made it easy for a biological male to get access to the exclusive spaces and gatherings of females in the disguise of a “transgender woman”.
Blocking the way of evil in society was the duty of the state, the court said, adding that Section 3 of the act was against Islam because the biological sex of a person should determine the gender identity of a person.
Likewise, Section 7 was also against Islam because no one could get any share of inheritance based on self-perceived gender identity.
Published in Dawn, May 20th, 2023