Trans people can’t get their gender changed, rules Shariat court
The Federal Shariat Court (FSC) on Friday pronounced the reserved verdict on the pleas against Transgender Act and ruled that transgender persons cannot get their gender changed, declaring certain sections of the Transgender Persons (Protection of Rights) Act, 2018 against Sharia.
“Islam provides all human rights to transgender persons,” it added and declared that Sections 2, 3 and 7 of the Transgender Act were un-islamic.
The FSC in its ruling said that transgender persons cannot have themselves called man or woman, adding that the government is bound to provide all rights to transgender persons.
The two-member FSC bench, comprising Acting Chief Justice Syed Muhammad Anwar and Justice Khadim Hussain pronounced the verdict. The court had reserved the verdict on May 11 last after the arguments of the parties in the case were completed. The court after pronouncing the verdict disposed of the pleas. The National Assembly had enacted the Transgender Persons (Protection of Right) Act in 2018 to provide legal recognition to transgender persons and ensure that discrimination against transgender persons in various walks of life shall be punishable. In September 2022, the FSC had taken up petitions challenging the legislation — making Jamaat-i-islami Senator Mushtaq Ahmed and TV anchor Orya Maqbool Jan asparties in them along with transgender persons Almaas Boby and Bubbly Malik. Simultaneously, amendments to the law have also been sought under the Intersex Persons (Protection of Rights) (Amendment) Bill, 2022, which called for the deletion of all those sections deemed against the injunctions of Islam and the Constitution. During the hearing on Friday, the court declared Sections 2(f) (definition of ‘gender identity’) and 2(n)(iii) (definition of ‘Transgender Person’) of the act to be against Sharia.
The FSC also ruled Sections 3 (recognition of identity of transgender person) and 7 (right to inherit) of the Transgenders Act 2018 to be against Sharia.
In a written order issued later, the court said that it had heard the arguments of the parties and experts at length, and reviewed research and other material provided by the parties.
“We have come to the conclusion to first declare that according to Islamic injunctions as laid down in the Quran and Sunnah, the gender of a person is subject to the biological sex of a person, therefore, the gender of a person must conform to the biological sex of a person.” Elaborating on the declaration, the order stated that there were many rulings or “Ahkamat and Ibadaat of Islam which are subject to the biological sex of a person and not the gender of a person”.
“Such Ahkamat include the performance of salat, keeping of Som, the performance of Haj, and distribution of inheritance, etc,” it highlighted. “We have noticed that in section 2(n) and of the Impugned Act five different terms; namely (i) intersex, (ii) eunuch, (iii) transgender man, (iv) transgender woman and (v) khawajasira are included in one definition of ‘transgender person’. “Whereas, the terms Intersex, eunuch and khawajasira refer to biological variations in sex characteristics of a person that do not fit into male or female classification, while ‘transgender man’ and ‘transgender woman’, refer to individuals whose self-perceived gender identity differs from the sex they were assigned at birth or from the sex they have biologically,” the court said. It noted that the inclusion of all the different terms in one single term “is the main cause of confusion and conflation about the impugned Act because not only all those persons who fall within the category of any of the five categories of persons used in section 2(n) are different physically but the ruling of Islamic injunctions according to Quran and Sunnah about them are also different on the basis of their biological sex”. The court said that Islamic law and jurisprudence provided intersex persons with all the rights mentioned in the law.