Pakistan’s transgender community finds itself embroiled in an ongoing struggle for inclusion, facing a recent setback with a verdict from the Federal Shariat Court (FSC). Transgender activists in Pakistan have appealed the judgement of the Federal Shariat Court (“FSC”), which adjudicates based on the tenets of Islam, to the Supreme Court (“SC”). As many as twelve petitions were clubbed, challenging various sections of the Transgender Persons (Protection of Rights) Act, 2018 (“the Act”). The FSC, speaking through Mr. Justice Dr. Syed Muhammad Anwer in a 108-page judgement, struck down Section 2(f) (defining gender identity as innermost feeling); Section 2(n)(iii); Section 3 (defining and recognizing transgenders, and other genders); and Section 7 (providing inheritance rights to all the genders) for violating the core tenets of the Holy Qur’an.

Judgement

The court recently held that homosexual activities are Al-Fahishah, meaning “gross, immodest, lewd, obscene, etc.” or anything “that exceeds the bounds of rectification or rectitude.” Deriving its legitimacy from “Surah An-Nahl (Verse-90), Surah Al-Imran (Verse-135), Surah An-Nur (Verse-21), Surah Al-A’raf (Verse-33) and Surah Al-Baqarah (Verse-219),” the FSC also held that these “immoral activities are the acts of Shaitan (Enemy of God; Demon).”

This ruling represents a significant setback for Pakistan’s transgender community, coming after years of progress, including a landmark decision by the SC in 2009 to recognize a “third gender” option in the National Identity Form for voting. Subsequently, in 2012, the SC extended equal rights to transgender persons, guaranteeing their constitutional rights and ensuring dignity, access to public spaces, and essential medical care. These positive developments culminated in the enactment of the Transgender Persons (Protection of Rights) Act in 2018, aiming to solidify and expand the rights of transgender individuals.

However, the recent judgment by the FSC has created a sense of disconnection and concern. The court’s stance on Khunsa persons, referring to them as a “biological infirmity,” raises questions about the extent of protection and recognition they are afforded under the law. The FSC judgment also takes a strict interpretation of Islamic principles, explicitly banning voluntary gender-affirming surgeries. Furthermore, it rejects the concept of gender identities based on innermost feelings, insisting on recognition solely through biological and physical traits.

This judgment, in effect, dilutes the progressive provisions of the 2018 act, potentially exposing transgender and other protected persons to violence and discrimination. It creates a divide between the constitutional rights granted to transgender individuals in previous SC judgments and the restrictive interpretation presented by the FSC.

The New Bill

In backdrop of the legislative furor against the progressive act, six amendment bills were sent to the Senate Standing Committee on April 4, 2023. These bills were consolidated as the Khunsa Persons (Protection of Rights) Bill, 2023 (“the Bill”), with the aim of attaining “consistency with the injunctions of Islam.”

The Bill replaces the word Transgender—which previously included intersex (Khunsa), eunuch, transgender man, transgender woman, Khwaja Sira, or any person whose gender identity and/or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth—with Khunsa, recognizing only certain intersex characteristics that can be divided into the binary of male or female. The Bill also mandates “medical examination” of Khunsa persons before a team of five doctors, violating the patients’ right to privacy. It also criminalizes gender-affirming healthcare, with a five-year jail term or a fine of PKR 5,00,00, or both, for medical professionals.

The Statement of Objects and Reasons accompanying the Bill clarifies its underlying intentions, highlighting a clear assault on the rights of transgender individuals. It explicitly aims to repeal the 2018 act, justifying it on the grounds that the act legalized homosexual marriages, clashed with the laws of inheritance outlined in the Holy Quran, violated the dignity and modesty of Muslim women, and subjected the recognition of gender to subjective interpretation.

This development poses a direct threat to the constitutional rights of transgender persons, leaving them vulnerable and marginalized. The responsibility to reverse the damage caused by this assault on their rights lies with the Supreme Court, as the legislature acts as the catalyst for this concerning situation. Only through the restoration of the neglected rights of transgender individuals can we hope to rectify the impact of this categorical attack on their fundamental liberties.

International Dissonance

The new bill in Pakistan has raised concerns regarding potential violations of the country’s international obligations, including those outlined in the International Covenant on Civil and Political Rights (ICCPR). One provision of the bill that has drawn criticism is the requirement for medical examination to determine an individual’s gender. This infringes upon personal autonomy and the freedom to express one’s gender identity, protected under Article 16 of the ICCPR.

The United Nations Special Rapporteur on Torture, acknowledging the Yogyakarta Principles that provide crucial guidance on human rights pertaining to sexual orientation and gender identity, underscores the severe consequences of “involuntary genital normalizing surgery” on intersex children. Not only does such surgical intervention result in irreversible infertility, but it also inflicts profound mental anguish. Consequently, it becomes increasingly apparent that gender identity, an inherently personal matter encompassing one’s deeply-held convictions, should be shielded from arbitrary scrutiny imposed by external entities. The international human rights standards explicitly maintain that the pursuit of legal gender recognition should not necessitate the endorsement of medical professionals or any other third parties. The new provision of enforcement of medical examinations disregards these rights and violates the right to privacy, as established by the European Court of Human Rights (ECtHR) in the A.P., Garçon, and Nicot v. France (2017) case. Requiring medical interventions as a prerequisite for legal gender recognition violates the right to privacy and respect for one’s identity.

Additionally, the bill’s criminalization of gender-affirming healthcare and the replacement of the term “transgender” with “Khunsa” contribute to discrimination and stigmatization. These measures violate the principle of non-discrimination under Article 2 of the ICCPR, which requires equal protection under the law for all individuals, irrespective of gender identity.

Conclusion

Legislative accomplishments securing gender recognition face a perilous situation as a result of regressive and deceptive narratives. Any proposed modifications that seek to reverse or undermine these essential safeguards must be resolutely opposed and declined. It is imperative that the government of Pakistan does not disregard its solemn obligation to safeguard and uphold the rights of all individuals, regardless of their perceived or actual gender identity, gender expression, sexual characteristics, or sexual orientation. Failing to fulfill this responsibility would not only constitute a violation of the mandate set forth by the Supreme Court, but it would also run contrary to the principles enshrined in international treaties and customary human rights law. Pakistan must remain unwavering in its steadfast commitment to ensuring equality and protection for all, while affirming the inherent dignity and rights of each and every individual.

Tanmay Durani is a second-year student at Rajiv Gandhi National University of Law, Punjab. His key areas of interest are constitutional law, human rights law, and international law. Harsh Bansal is also a second-year student at Rajiv Gandhi National University of Law, Punjab. His key areas of interest are human rights law, international law, and social justice and equality law.

Suggested citation: Tanmay Durani and Harsh Bansal, The Battle for Inclusion: Pakistan’s Transgender Community Faces Setbacks with Shariat Court Verdict, JURIST – Student Commentary, June 26, 2023, https://www.jurist.org/commentary/2023/06/durani-bansal-pakistan-transgender-shariat-court/.

This article was prepared for publication by Hayley Behal, JURIST Commentary Managing Editor. Please direct any questions or comments to her at commentary@jurist.org