Thrown to the wolves

The Federal Shariat Court verdict of May 19 striking down the Transgender (Protection of Rights) Act 2018 is seriously flawed. The FSC adopted an extremely narrow view and failed to take into account the growing body of knowledge and research in the medical and psychological domains. The court also failed to address the views of some scholars placed before it as to why the transgender community is not against Islam.

Above all, the verdict constitutes an attack on the fundamental rights of a section of society and on the sovereignty of parliament. As human knowledge advances, newer and newer interpretations must be possible. This is how the pyramid of knowledge has been built brick by brick by human society.

The disagreements among scholars, jurists and experts are not due to any animosity nor does it indicate a contradiction of one scholar or the other. The differences (ikhtilaf) are based on an awareness of relativity inherent in all human reasoning. In disagreeing with the verdict, thus, one should not be seen as pointing fingers at the integrity or motives of the judges.

Two honourable judges alone, however knowledgeable, cannot be the final arbiters of the religious injunctions. They are human and liable to err like any other human. The interpretation of religious injunctions should be based on knowledge, logic and with an empathy embracing all -- particularly the marginalized, and the wretched of the earth. Interpretations must not be based on ignorance, fears and suspicions.

Unfortunately, the FSC verdict fails to pass this test. The court held that “the right to privacy of women in our society will become vulnerable and can be violated” but does not say how. The Act creates a special space called ‘X’ for a transgender man or trans woman and does not assign them spaces reserved for men or women. How the right to privacy of females is vulnerable the verdict does not explain. To say that women's spaces and rights “CAN be violated” is merely an expression of fear and suspicion. It is neither law nor jurisprudence.

The court feared that mischief can be done. Based on this fear, it has denied the right to identity to an entire community and thrown it to the wolves. This community is already disowned by their families and by society. In 2018, parliament sought to own and integrate the transgender community. And now in 2023, on May 19, the Federal Shariat Court has ordered them be disowned.

With their backs to the wall, where will they go? Members of the community will go underground and for survival engage in anything. By seeking to close the doors of vice, based on fears and not reality, the court seems to have unwittingly opened the floodgates of vice.

The basis of the FSC's assertion is “the arguments of the parties and experts and length, research and other material” on the one hand and “many rulings or Ahkamat and Ibadaat of Islam which are subject to biological sex of a person” on the other.

The Rules framed under the Act clearly provide that each department will make its own policies for the integration of transgender ‘X’. Fears or suspicions of any misuse if any can be addressed in the rules. Addressing unfounded fears of the pious and for it denying the very identity of a minority is not any glory. No one can be proud of it. It will haunt us even in distant ages and climes.

It is like arguing that a bee should not be allowed in gardens because it will suck flowers, produce honey as well as wax and candles which will burn moths.

Noting that the clubbing together in one single term 'transgender' of various gender variants (intersex, eunuch, transgender) “is the main cause of the confusion”, the lords failed to see that all these gender variants were clubbed only for the purpose of access to rights to which all of them must be entitled. It does not confer any special privileges on any one of them nor declares them as same and interchangeable.

This verdict is a throwback to the era of Zia, who set up institutional mechanisms through executive orders to advance his regressive worldview behind the facade of religion.

The writer is a former member of the Senate Human Rights Committee, which passed the Transgender Act 2018.