The Federal Shariat Court’s (FSC) decision against the Transgender Persons (Protection of Rights) Act, 2018, is not only against the transgender community but also against all those who believe in human rights and women’s rights, according to Advocate Sara Malkani.
Speaking at a press conference at the Karachi Press Club on Saturday, she stressed that the Act is still in place until it is challenged in the Supreme Court, and even after it is challenged, the law would remain in place until the SC gives its final verdict.
Representatives of the non-governmental organisations Gender Interactive Alliance (GIA), the Sindh Moorat March, the Aurat March and the Women Democratic Front spoke during the press conference.
The FSC order was announced by the court’s acting chief justice Dr Syed Muhammad Anwer and Justice Khadim Hussain Shaikh on Friday on a petition challenging the Act.
The court made it clear in its order that gender is related to a person’s biological sex, and that it has a specific bearing on how various forms of worship, including daily prayers, fasting, Hajj, etc. are performed in Islam.
The Act was passed by the parliament in 2018. The law prohibits discrimination against transgender persons in schools, at workplaces and in public spaces, as well as ensures their right to vote, inherit property and run for public office.
In 2022 politicians from religious political parties, including the Jamaat-e-Islami and the Jamiat Ulema-e-Islam-Fazl kicked up a row, insisting that the law is against Islamic tenets and should be immediately amended.
The Rules of the Act further clarify that a transgender person will have to approach the National Database & Registration Authority (NADRA) for a change of name or gender on their identity documents, according to their self-perceived identity.
NADRA would only alter their gender from male or female to “X”, which symbolises the third sex in Pakistan, a classification specially created for the trans community on the orders of the SC in 2009.
The law or the rules do not allow men to change their gender to female or vice versa on their CNICs or passports, or other travel documents.
Advocate Sara represented the GIA, which works for the rights and social justice of Pakistan’s transgender persons, at the FSC. She said the FSC has ignored the fundamental rights chapter in the constitution that talks about the right to life, the right to dignity and the right to equal protection.
The GIA had attended two hearings: once when the FSC convened in Karachi, and the second time the NGO went to Islamabad. “The entire judgment has no mention of our submissions,” said Sara, adding that they had also submitted an independent expert’s medical opinion to the FSC, which also was not discussed in the judgment.
She explained that the FSC verdict cannot be automatically effective. “There’s a 60-day period for appeal in the SC,” she said, adding that until the 60 days are over, the decision cannot take effect.
If the appeal is filed in the top court, the FSC decision cannot be implemented until the SC gives its verdict. “The Transgender Persons (Protection of Rights) Act, 2018, is fully effective and in field as of now,” she stressed.
Speaking on the contents of the judgment, she explained that according to the FSC, the definition of transgender is problematic in the Act. The Act has five different gender identities.
The first identity is intersex, which is a mixture of male and female genital features or congenital ambiguities. The second identity is eunuch, which is assigned male at birth but undergoes genital excision or castration.
The other three identities are a transgender man, a transgender woman and a Khwajasira, or any person whose gender identity or gender expression differs from social norms and cultural expectations based on the sex they were assigned at the time of birth.
The FSC says that intersex people are disabled and need protection. It says eunuchs and Khwajasiras are the same. “The FSC says that Khwajasira is the translation of eunuch,” said Sara, adding that if one delves into the history of Khwajasiras, they would know how incorrect that is.
The FSC says that eunuchs and Khwajasiras have permanent infirmity of the sexual organs. “This means they have also called Khwajasiras disabled,” she pointed out.
Khwajasiras, she stressed, are not a disabled community. “They are a community with a distinguished identity, especially in the subcontinent, where they have existed for many centuries,” she said, adding that stigmatising them with disability is wrong.
The court, she said, declared the identity of transgender man and transgender woman against Islam, reasoning that in Islam there cannot be any difference between sex and gender.
They cited the Holy Quran, saying that God created man and woman. “Can we conclude from this that if God created man and woman, there can’t be the existence of any other gender or sex?”
Nowhere in the FSC judgment, she said, there is any reference from the Holy Quran or the Hadith that it is against Islam to recognise any other gender or sex other than male or female. She asked if it is also against Islam to consider gender and sex different.
The judgment forbids going against one’s gender assigned at birth, saying that it is against Islam. “This is very serious and dangerous for all genders,” she said, adding that who would tell what hairstyle or way of walking is manly and what is not.
She said that if one fails to comply with the gender assigned at birth, it would be against Islam and illegal as well. “This is not only impractical but against the constitution, which allows every citizen to live freely.”
GIA member Dr Mehrub Moiz Awan said that the judgment paves way for JI Senator Mushtaq Ahmed’s Khunsa bill. The bill suggests that Khwajasiras should pass a five-member medical board before being declared Khwajasira.
According to the bill, any Pakistani citizen can put apply to the five-member medical board demanding a medical examination of any person over suspicion. In the Khunsa bill, she pointed out, the medical board does not recognise gender dysphoria and gender affirming care.
The Khunsa act also says that any man who expresses non-masculine traits or any woman who expresses non-feminine traits, if given any sort of gender affirming care, be it surgical or psychological, should be fined with Rs500,000 and undergo a five-year imprisonment.
Less than 3,600 people are registered as Khwajasiras in Pakistan in the NADRA database. This number, she said, is lower than the number of vaccinated dogs in Karachi.
“The JI is operating on a distinct international neocon far-right agenda to attack minorities once again through lies and propaganda, hence emboldening violent far-right movements.”
