Westernised transgenders or colonised transphobes? Examining the FSC verdict on the Transgender Rights Act

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Many of the concerns or panics expressed by petitioners and opponents of the Act echo right-wing Western anti-trans narratives.

Hailed as one of the most progressive pieces of legislation internationally, the passage of the Transgender Persons (Protection of Rights) Act 2018 marked a major milestone for the advancement of transgender rights in Pakistan.

Summarily, the Act prohibits discrimination against a transgender person in areas such as education, employment, and healthcare. It directs the central and provincial governments to provide welfare schemes in these areas such as reforming health curricula to address basic health issues of the transgender and intersex community, besides other measures that ensure the full inclusion and participation of transgender persons in mainstream society via rehabilitation, vocational training, and employment schemes.

Under the Act, offences such as compelling or enticing a transgender person to beg or enter forced or bonded labour, denying a transgender person the right of passage to a public place, forcing or causing a transgender person to leave their household or village, harming or endangering the life, safety, health, or mental and physical well-being, and physically, sexually, verbally or economically abusing a transgender person are punishable offences.

Many stakeholders, ranging from community activists to human rights experts, lawyers and medical professionals, joined hands to develop this legislation. It is based on the most recent research while also being culturally specific to the khwaja sira communities that have existed for centuries in Muslim South Asian society.

In contemporary Pakistan, the transgender community has been marginalised because transgender people don’t ‘fit into’ existing gender categories. Consequently, they face problems ranging from social exclusion and discrimination to lack of education, unemployment, and adequate medical facilities.

The 2018 Act recognised this status and gave it legislative backing to begin solving issues affecting the transgender community, ensuring access to healthcare, education and self-determination and recognising their right to human dignity.

Federal Shariat Court of Islamabad (FSC) announced its verdict on 12 Shairat petitions through which several petitioners challenged various sections of the Act. It ruled that sections 2(f), 3 and 7 of the Transgender Act 2018, which relate to gender identity, the right to self-perceived gender identity and the right of inheritance for transgender people do not conform with their interpretation of Islamic principles. The entire khawaja sira community is mourning the FSC’s attempt to delegitimise the Act — which is already resulting in more violence and hatred towards their community.

Hijra panics’ continues in South Asia to this day. Many of the concerns or panics expressed by petitioners and opponents of the Act echo right-wing Western anti-trans narratives in Pakistan and this is only a growing trend.

Fundamentally, the petitions expressed concern over the anglicised words ‘transgender’ and ‘intersex’, and the right to self perceived identity. The concerns extend to hypothetical scenarios that may result if ‘people begin changing their gender identity at will’.

Kamran Murtaza, a senior advocate at the Supreme Court of Pakistan appeared on behalf of the Jamiat Ulema-e-Islam Pakistan to present their arguments. He stated: “Any biological male person can get access to all the places which are secluded specifically for female genders, like girls educational institutions, schools and universities etc., girls’ hostels, hospitals and other places, where services are provided to women only. Similarly, the services and jobs, which are specially and specifically allocated to females can easily be misused by biologically male persons having a CNIC of ‘X’ gender mark issued by Nadra identifying him as a ‘transgender woman’ under this law, because by doing so, that biological male person cannot be stopped [from] avail[ing] any facility or privilege meant for women only.”

Another concern was “biological men/boys” competing with girls/women in the same categories and “outperforming them in every sport”. This discourse is prevalent in the west, and is barely a concern in our local context.

Khwaja siras are not asking for access to spaces where only women or only men are allowed — they are asking for their own third spaces, an X on their ID card. While the 2018 Act was written on the basis of research, evidence, and lived experience — the concerns that motivate the FSC ruling are not.

Doctors and professors from the Pakistan Islamic Medical Association also stated that “now some new terms like ‘other-kin’ and ‘trans-species’ are also being introduced which are more disturbing than the term transgender. If any society accepts the concept of transgender, as stated in the impugned law, then there will be nothing to stop the sexual perversions and sexual degeneracies spreading in the society.” It is to be noted that no such terms have been used in the Transgender Act — such concerns are speculative projections of fear that are not grounded in the lived realities of khwaja siras in Pakistan.

During the delivery of the verdict, the court speculated that the Act could lead to rape, and sexual assault of women as petitioners alleged that it makes it easy for a man to gain access to “exclusive spaces” intended for women, “disguised” as a transgender woman.

Interestingly, the petition that raised this concern cited four instances of sexual violence by transgender women against cis-gendered women and minors. All four cases were from the United Kingdom. There is no publicly available evidence of such incidents taking place in Pakistan. Not to mention, looking at the proportion of perpetrators from male, female and transgender would do one some good. Individual cases of violence are often disproportionately highlighted and used to spread narratives about entire communities. This is not only the case with transgender communities, but all marginalised communities across the world, including Pakistanis and Muslims.

If the FSC is concerned with the rampant violence against women that already exists in our society, scapegoating our already marginalised community will not improve the condition of women in Pakistan. Women are being raped in public parks, on motorways and in their homes. The FSC should start a separate inquiry into this fahashi if it is concerned with the violation of women in this country. Instead, the state has failed to provide women with safe women-only spaces or safe public spaces. It has also, at times, failed to condemn or convict male perpetrators of violence, even when the evidence could not be more obvious.

Moreover, khwaja siras and transgender persons are not asking for access to women-only spaces; this is a myth designed to aggravate our population against the community. We already exist in this society and have co-existed for centuries before. Denying our humanity will not make us go away, it will only make our lives harder and deny the human dignity we too have a right to.

Speculative and panics of a disproportionate level were stark in many of the petitioner’s statements, as was also expressed by Amnesty International: “This ease of changing the identity will pose a threat even to the national security in certain cases … This “facility” will provide the criminals, terrorists, spies and refugees a camouflage to hide their identity, which may create a serious problem in anti-terrorist activities in the country.”

Turkish Civil Code in 1988. Ayatollah Ruhollah Khomeini gave approval for sex reassignment surgeries in 1964 and again in 1985. Sex reassignment surgeries have been conducted in Morocco since 1956 and the first one occurred in Egypt in 1982. Even our own laws set a better precedent than this, such as the 2011 Supreme Court decision to grant voting rights to khwaja siras which was won by an attorney specialising in Islamic law.

In 2019, the World Health Organisation (WHO) declared that “gender incongruence” or gender dysphoria will no longer be considered a behavioural or mental disorder. “It was taken out of the mental health disorder because we had a better understanding that this was not actually a mental health condition and leaving it there was causing stigma,” said Dr Say, a WHO reproductive health expert.