ISSUE
Whether the Transgender Persons (Protection of Rights) Act, 2018, in recognising gender identity based on self-perception rather than biological sex, violates injunctions of Islam?
KEY FACTS
The Transgender Persons (Protection of Rights) Act, 2018 (‘the Act’) defines ‘transgender persons’ as including three groups: intersex persons, ‘eunuchs’ and people whose gender identity differs from the norms based on their sex assigned to them at birth. Following its passage, twelve petitions challenged provisions of the Act, the Rules framed under it and NADRA (National Database and Registration Authority) Regulations governing national identity card registration for transgender persons. The petitioners argued that the recognition of transgender persons besides intersex persons and ‘eunuchs’ would violate Islamic injunctions based on biological sex. The Act could be misused by men to enter women-only spaces.
The Government of Pakistan supported the Act, relying on the ICCPR. The Council of Islamic Ideology supported the petitioners challenging the Act. Various transgender and intersex persons intervened to defend the Act. In addition to arguments on human rights, they submitted that Islamic legal opinions (fatwa) have permitted gender affirmative surgery in Iran and Egypt.
DECISION & REASONING
The Federal Shariat Court held that a person’s gender, in Islam, must conform to biological sex because one cannot alter the creation of God. Further, rules on prayer, fasting, Hajj and inheritance rely on biological sex.
The court upheld the Act’s protection of intersex persons – described as khunsa/khusra – and ‘eunuchs’ – equated to khwaja sira – because they were based on ‘biological’ attributes. However, there is no right to voluntarily become a khwaja sira or ‘eunuch’ by castration. Gender affirmative procedures like hormone therapy and surgery are not permitted unless medically necessary. So, transgender men, women and others who assert their self-perceived gender identity cannot be recognised and granted the right to change their documents or access spaces based on their self-perceived gender.
The court held that the definitions of ‘gender identity’ and ‘transgender persons’, the right to change name and gender on documents and the right to inherit under sections 2(1)(f), 2(1)(n)(iii), 3 and 7 of the Act should no longer be in effect because they violate the injunctions of Islam. The NADRA Regulations were withdrawn during the proceedings.
SIGNIFICANCE
The judgment marks a regressive step for transgender rights in Pakistan. If implemented, it would leave most transgender persons with no legal protection or recognition, undermining their constitutional rights previously recognised in Constitutional Petition No. 43. The ruling has been appealed to the Shariat Appellate Bench of the Supreme Court, where it remains pending. The judgment does not have effect and the Act continues to remain in force until the appeal is decided.