Pakistan Today (Lahore)

Trans people can’t get their gender changed, rules Shariat court

- ISLAMABAD

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.

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