Pakistani Religious Court Strikes Key Parts of 2018 Transgender Law

Pakistan’s Federal Shariat Court ruled on Friday that key provisions of the Transgender Persons Act of 2018 are contradicted by Islamic law.

Transgender activists and human rights groups denounced the ruling and urged the Pakistani government to nullify it, although some transgender people in Pakistan supported the religious court, and, in fact, one of the petitioners who sought the ruling identifies as transgender.

Pakistan’s Supreme Court ruled in 2012 that transgender citizens, lumped together into a single “third sex” option for legal purposes, were entitled to the full protection of their constitutional rights. The 2012 ruling was based on a 2009 case involving eunuchs, their inheritance rights, and their healthcare needs. Pakistani courts tend to refer to anyone who has undergone sex reassignment surgery as a “eunuch.”

In 2018, the Pakistani National Assembly passed a sweeping law whose name is usually rendered as “The Transgender Persons (Protection of Rights) Act.” The Act greatly expanded the categories of transgender people who would receive legal protection and prohibited discrimination against them in employment, education, voting, healthcare, shelters, and various other areas. It also directed the Pakistani government to initiate public education campaigns about transgenderism.

Deutsche Welle (DW) observed that the 2018 law was “strikingly moderate for the Islamic country,” given that Pakistan “does not recognize same-sex marriage and outlaws sex between men with the possibility of prison terms, among other restrictions.” Transgender activists viewed the passage of the act as a major regional, and even global, victory.

The Federal Shariat Court on Friday ruled that under Islamic law, “The gender of a person must conform to the biological sex of a person” and cannot be changed on the bases of “innermost feeling” or “self-perceived identity.”

The court further held that while Islam allows for the possibility of people being born with ambiguous genitalia, it only allows castration in “exceptional cases” to “cure disease,” which would make most sexual reassignment surgery illegal.

Part of the reasoning for this decision was that Islam places certain religious obligations upon adherents based on their sex, so denying one’s sex or altering it with surgery would be tantamount to evading a Muslim’s duties to Islamic practice. The court also frowned on the notion of biological males entering spaces Islam reserves for women, and it said the 2018 Transgender Persons Act and 2012 court ruling created confusion by vaguely acknowledging numerous transgender identities but lumping them all together as a third sex.

“This law will pave the way for criminals in society to easily commit crimes like sexual molestation, sexual assault and even rape against females in the disguise of a transgender woman,” the Federal Shariat Court said of the 2018 act.

Transgender activists and groups like Amnesty International (AI) immediately denounced the ruling as regressive, a “blow to the rights of the already-beleaguered group of transgender and gender-diverse people in Pakistan,” as AI research assistant Rehab Mahamoor put it.

“This decision will further increase the incidents of violence against transgender people,” Shahzadi Rai of the Gender Interactive Alliance, said. “Transgender people will be pushed further against the wall in society.”

Most critics of the Federal Shariat Court ruling pointed to the harsh discrimination people perceived to be transgender face in Pakistan, where they are “often abandoned by families and relegated to mostly begging on the streets or dancing at parties to make money,” as Voice of America News (VOA) put it.

“Some are forced into begging, dancing and even prostitution to earn money. They also live in fear of attacks,” DW added.

On the other hand, some transgender Pakistanis applauded the court ruling, including activist Almas Bobby, who petitioned against the 2018 act at the Islamic court. Bobby felt the act allowed people to change gender “on a whim” and promoted homosexuality.

“Normal, healthy men who are capable of marrying, and are married, too, should stay with their wife and kids,” Bobby said. 

This is a potentially tricky debate for transgender activists, who have a deep conviction that transgender people are fully and completely members of the sex they become, so trans women who have sex with men are not engaged in homosexual activity, as Bobby maintains. This is an important legal distinction in countries like Pakistan, where homosexuality is strongly discouraged or illegal.

VOA noted that under Pakistan’s implementation of Muslim inheritance law, men receive twice as much as women. One clause of the 2018 Transgender Persons Act struck down by the Sharia court on Friday stipulated that women who transition to become men should be treated as men under the inheritance laws, receiving twice as much as women. Men who transition to women would probably be unhappy with receiving half as much inheritance.

A transgender “eunuch” named Sana expressed support for the court ruling to the Associated Press because large numbers of gay men were pushing to belong to Sana’s “original and by birth” community, which enjoys certain job quota benefits from the government.

Transgender activists said they would appeal the Federal Shariat Court ruling to the Pakistani Supreme Court. The sharia court has the power to review laws and strike down provisions it deems incompatible with Islam, but the Supreme Court can overturn its rulings.