Outrage as Pakistan’s Court nullifies sections of progressive Transgender Act

May 21, 2023
3 mins read
Image: Pakistan Today

Transgender campaigners in Pakistan are considering lodging an appeal with the Supreme Court over an Islamic court’s decision to revoke the country’s 2018 laws guaranteeing transgender rights, such as legal gender recognition.

On May 19, Federal Shariat Court ruled that certain sections of the ground-breaking law were “un-Islamic” nearly five years after parliament enacted it. The Islamic court ruled that a person cannot alter their gender based on their “innermost feeling” or “self-perceived identity” and must comply with the biological sex assigned to them at birth.

The Shariah court has the constitutional mandate of examining and determining whether laws passed by Pakistan’s parliament comply with Islamic doctrine.

The Transgender Persons (Protection of Rights) Act 2018 allows people to choose their gender and to have that identity recognized on official documents, including national IDs, passports, and driver’s licenses. The bill prohibits discrimination in schools, at work, on public modes of transit, and while receiving medical care.

In its ruling, the Shariat court declared that while Islam acknowledges the existence of people born with mixed or ambiguous genitalia and allows castration in “exceptional cases…as advised by expert medical professionals in order to cure [a] certain disease,” the religion does not allow castration to change gender or the act of choosing one’s own gender, and that they should be entitled to all the fundamental rights provided to Pakistanis in the constitution.

However, it rejected a clause in the law in which the country’s national database and registration authority permits the change of a person’s biological gender from the one they were assigned at birth in identification documents including driver’s licenses and passports.

The court also said that the term “transgender” as it is used in the law creates confusion. It covers several biological variations, including intersex, transgender men, transgender women and Khawaja Sira, a Pakistani term commonly used for those who were born male but identify as female.

Civil rights groups and transgender campaigners have expressed their outrage over the court’s decision to overturn major provisions of a transgender rights bill.

Nayyab Ali, executive director of Transgender Rights Consultants Pakistan said the transgender community was “mourning the decimation”, and stressed the Shariat court’s findings would be challenged in the apex court.

Expressing dismay over the “regressive ruling”, the Human Rights Commission of Pakistan said the denial of transgender people’s rights to self-perceived gender identity seeks the “erasure of an entire demographic and its fundamental rights.” It said rolling back the transgender bill would lead to further marginalization and abuse of an already vulnerable community in the South Asian nation.

Amnesty International called for the Pakistani government to reject all proposed amendments to Act that violate international human rights laws and standards. It noted that the verdict is a blow to the rights of the already beleaguered group of transgender and gender-diverse people in the country. “Some of the observations made by the Court were based on presumptive scenarios rather than empirical evidence. The denial of essential rights of transgender and gender diverse persons should not be guided by assumptions rooted in prejudice, fear and discrimination,” it added.

In 2018, the National Assembly of Pakistan enacted The Transgender Persons (Protection of Rights) Act, providing the transgender community with fundamental rights in health, education, government, and security. It enshrined much-needed protections such as the definition of a transgender person and access to legal gender recognition based on self-determination, the rights to education and employment, and the prohibition of discrimination.

In 2012, Pakistan’s top court ruled that transgender people have the same rights as all other citizens and ordered that a “third gender” category be added to national identity cards.

That ruling paved the way for the 2018 legislation, which expressly prohibited discrimination against transgender people and ruled that transgender people cannot be deprived of the right to vote or run for office. It lays out their rights to inheritance, in accordance with their chosen gender. And it obligates the government to establish “Protection Centers and Safe Houses” — along with separate prisons, jails, or places of confinement.

In 2010, a time when no law in Pakistan recognized the existence of transgender persons, the Supreme Court ordered the community to register for national identity cards—identification documents based on which citizens can access financial and social services. However, the national identity cards offered only two gender options, female and male, giving members of the Khwaja Sira community no choice but to register as women or men.

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