FSC rejects gender change autonomy

Court nullifies certain sections as un-Islamic

ISLAMABAD:

In a significant ruling, the Federal Shariat Court (FSC) on Friday declared that individuals cannot alter their gender at their own discretion, asserting that specific clauses within the Transgender Persons (Protection of Riqhts) Act, 2018 contradict Islamic law.

The FSC declared un-Islamic sections 3 and 7 and two sub-sections of Section 2 of the Transgender Persons (Protection of Riqhts) Act, 2018.

Five years after the bill was passed, the FSC rolled back key provisions granting rights to Pakistan’s transgender community.

Some right-wing political parties had previously  voiced concerns over the bill as a promoter of “homosexuality” and leading to “new social problems”.

"We declare Section 2(f) containing definition of “gender identity”, Section 2(n)(iii), Section 3 and Section 7 of the impugned Act, titled, “The Transgender Persons (Protection of Rights) Act, 2018” as against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH) and will cease to have any legal effect immediately," stated the verdict.

The nullified sections are: 2(f) Gender identity" means a person's innermost and individual sense of self as male, female or a blend of both or neither that can correspond or not to the sex assigned at birth; Section 2(n)(iii) a transgender man, transgender woman, Khawaja Sira or any person whose gender identity or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth; and Section 3 and Section 7 that deal with the recognition of identity of transgender person and the right to inherit, respectively.

"According to the Injunction of Islam as laid down in the Quran and Sunnah all the legal shares of inheritance are to be divided among the legal heirs of the deceased on the basis of their biological sex," the court ruled.

Read Reviewing the Transgender Persons Act is not about religion, but about politics

"The use of term “transgender” for gender identity on the basis of self-perceived identity, which is contrary to the biological sex of the person, is also against the injunctions of Islam," it added.

"Islamic injunctions do recognize the existence of eunuch persons, who are called Khasi in Arabic as well as in Urdu (they are also called KhawajaSira).

"Eunuchs are considered as male person with serious and permanent sexual infirmity in their male sexual organs. They also fall in the category of special persons and deserve special attention of the society and the State.

"Hence, Section 2(n)(ii) of the Impugned Act is not against the injunctions of Islam but needs clarity as identified hereinabove that according to Islamic injunctions a person cannot undergo castration to become eunuch at his will.

"It is only allowed on medical requirement and on medical grounds," it added. However, the court ruled Section 2(n)(iii) of the impunged act as un-Islamic on the grounds that Islamic provisions are only applicable on the basis of '"biological sex of a person (male or female) which cannot be based on the innermost feelings of a person (male or female) or self-perceived identity about his or her “gender” being different from the sex he or she has since birth".

The FSC also held that permitting an individual to identify with a self-perceived identity under Section 3 "will create many serious religious, legal and social problems in society".

Further, it maintained that "no one can get any share of inheritance on the basis of 'self-perceived gender identity'".

Meanwhile, the HRCP in statement said it greatly dismayed by the court's “regressive” ruling on the Transgender Persons (Protection of Rights) Act 2018.

“In denying trans persons the right to self-perceived gender identity, this move seeks the erasure of an entire demographic and its fundamental rights. Moreover, the ruling undermines the will of the Parliament. HRCP hopes that the Supreme Court will overturn this decision. Parliament must not amend this act at any cost.”