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Disappointment: Transgender Community to Challenge Sharia Court Decision in Supreme Court

Mahi Gul, an advocate for eunuch rights, strongly rejects the decision made by the Sharia court.
by TNN Editor - 24 May, 2023 1610

Misbah ud Din Utmani

Transgender women from Khyber Pakhtunkhwa (KP) have announced their intention to challenge the decision made by the Sharia Court regarding the Transgender Act in the Supreme Court.

According to Farzana Riaz, the president of Trans Action Alliance Khyber Pakhtunkhwa, when the Transgender Act was being formulated, it included provisions for transgender individuals from all four provinces. They jointly presented proposals to ensure their fundamental rights were protected. Despite the lengthy process involved in drafting this law, it was ultimately invalidated by the Sharia court.

Expressing criticism towards the Sharia Court's decision, Riaz remarked, "It would have been more beneficial if the Sharia Court had focused on halting the killings of transgender individuals in KP instead of repealing this act. The perpetrators of these crimes should have been brought to justice, but unfortunately, our basic rights were also stripped away."

Riaz stated that the transgender community is disappointed with the decision of the Sharia court and plans to appeal against it in the Supreme Court.

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It is important to note that in its ruling on the Transgender Act, the Shariat Court stated that a person's sex cannot be determined solely based on their feelings. Consequently, transgender individuals in Pakistan are unable to legally change their gender, and they cannot be classified as either male or female.

On the other hand, Mahi Gul, an advocate for eunuch rights, strongly rejects the decision made by the Sharia court. According to Gul, the purpose of the bill was to safeguard the rights of transgender individuals.

"We respect Sharia, but nowhere in this law did we address issues such as marriage or homosexuality. Our focus was on education, healthcare, and inheritance rights, which are entitlements every man and woman in society enjoys. What is objectionable about that?" Gul questioned.

Gul believes that the true intent of the Transgender Act has been misinterpreted, leading to misunderstandings. Rejecting the act casts doubt on the rights of transgender individuals.

Gul further emphasized that transgender individuals face abduction, forced haircuts, and even murder. The Transgender Act was enacted to protect them. Eliminating this law will not solve the problem; instead, it will exacerbate their difficulties. The transgender community now feels insecure and compelled to take to the streets in protest.

 What does the Transgender Protection Act entail?

The Transgender Protection Act grants transgender individuals the ability to self-identify their gender and exercise the right to change it. As per the provisions of the Act, it is mandatory for all government institutions, including NADRA, to ensure that the desired gender identity of transgender individuals is accurately reflected on their identity cards, driving licenses, passports, and other relevant documents.

The Act acknowledges and upholds the fundamental rights of transgender individuals, encompassing essential aspects such as employment, education, healthcare, and inheritance. It legalizes and safeguards their access to these basic facilities. Additionally, the Act includes penalties for instances of discrimination against transgender individuals.

Is the invalidation of the Act primarily due to NADRA's data?

Qamar Naseem, a dedicated social worker advocating for transgender rights in KP, states that the primary reason behind the invalidation of the Act is the data presented by NADRA during Senate proceedings. This data led to a misunderstanding, suggesting that numerous men had been issued female ID cards and vice versa. As a result, this issue was challenged in the Federal Sharia Court.

Qamar Naseem also mentions that some eunuchs filed a petition against it, accusing it of being unIslamic. The matter was extensively debated in the Federal Sharia Court, which ultimately declared certain clauses of the Act contradictory to Islamic principles and invalidated them.

He explains that during the formulation of the Act, there were initially 12 countries worldwide granting individuals the right to self-determine their gender. However, this number has now increased to 16 countries.

Qamar Naseem highlights the significance of the Supreme Court's landmark decision in 2010, which recognized transgender individuals as a distinct gender. Following this ruling, NADRA began issuing identity cards reflecting their preferred gender.

Regarding the Transgender Act, Qamar Naseem emphasizes that its primary purpose is to secure the rights of transgender individuals residing in Pakistan. The Act aims to ensure non-discrimination based on gender and grant them access to all constitutional rights, including education, healthcare, and voting rights, just like other citizens.

He further mentions that the Act underwent six amendments, receiving approval from a Senate committee. However, due to a governmental collapse, it was not further discussed in the legislative assemblies. The amendments contained similar provisions that led to the Act's invalidation.

Qamar Naseem also points out the existing ambiguity surrounding the identity of eunuchs. According to Pakistani law, any person regardless of their birth gender, who identifies themselves as different is considered a transgender male or female.

Who raised objections to the definition of eunuchs in the law?

According to Qamar Naseem, one of the main issues with this law was that the definition of eunuchs lacked a universal standard, which was also highlighted by various Pakistani organizations and international bodies like the Ulema International Commission for Jurists and Human Rights Watch. They argued that such a definition was unique to Pakistan and could lead to further complications, which eventually unfolded.

He mentioned that the law was passed in 2018, but in 2023, the same problems that were previously identified resurfaced. Qamar Naseem emphasized that the rights of transgender individuals do not cease with this law. Efforts will be made to establish a mechanism that is agreeable to all stakeholders and effectively safeguards transgender rights.

Nauman Mohib Kakakhel, a lawyer from the Peshawar High Court, stated that during the formulation of this law, many cases were brought before the court by transgender individuals seeking gender-related orders. There was hope that Parliament would address and rectify the complexities within the law. However, the Federal Sharia Court reviewed it in light of the Quran and the Sunnah, resulting in significant losses and a failure to provide the intended benefits to eunuchs.

Mohib Kakakhel explained that sex and gender are distinct concepts. Sex pertains to biological characteristics, while gender refers to an individual's personal perception and self-identification. The law, unfortunately, conflated the two. With the law's invalidation, individuals will no longer be classified as male or female, and the term "transgender" will be eliminated from identity cards. Instead, transsexual individuals will have the ability to change their gender.

According to Nauman, transgender women now have the option to appeal to the Sharia Appellate Bench of the Supreme Court to determine the compatibility of the law with the Quran and the Sunnah.