FSC on transgender persons
On May 19, the Federal Shariat Court said that key parts of the landmark Transgender Persons (Protection of Rights) Act, 2018, are against Islam. The FSC has asked that a rule be thrown out because it protects some of the most vulnerable people in our society. If the Supreme Court doesn’t hear a challenge of the FSC’s decision, it will go into effect in six months.
The FSC says that the law’s definition of “transgender persons” mixes together a lot of different identities, each of which looks different and has a different position in Islam. Importantly, the FSC has ruled that Section 3 of the 2018 Act, which says that transgender people have the right to choose their own gender identity, goes against Islam. “Voluntary change of sex” based on how a person sees themselves is also against Islam.
The FSC says that the 2018 Act’s definition of “transgender persons” covers both transgender men and transgender women as well as intersex, eunuchs, and khwaja siras. Intersex people are “special” and “deprived”. The FSC says that both eunuchs and khwaja siras belong to the same group of people who have “serious and permanent sexual infirmity in their male sexual organs.”
Transgender men and women, on the other hand, are people who don’t see themselves as the gender they were given at birth. The FSC thinks that the second one is not Islamic because Islam doesn’t make a difference between sex and gender identity.
It would be a stretch to say that Islam is against transgender people in general and in all situations.
The FSC’s view of these sexual and gender identities is wrong from the start. In spite of what it says, khwaja siras are people with clear gender identities, and it shouldn’t be believed that they are sick or disabled. The person’s own sense of who they are determines whether or not they are khwaja sira. When letting new people into the khwaja sira group, there is no physical or medical screening. In fact, there are no set biological or physical traits that make a person khwaja sira. Instead, the identity is made up of a mix of psychological, biological, and cultural traits.
Also, the FSC’s claim that Islam doesn’t allow any difference between sex and gender identity is based on bad logic. The FSC says that “in some cultures and societies, a person or a human being is defined and identified by his or her “gender” and not by his or her “sex”,” but it goes on to say that “in Islam, a person is defined by his or her “sex,” not by his or her “gender,” in this context.”
This result is based on a clear mistake in reasoning. The FSC bases its beliefs on parts of the Holy Quran that say God made both men and women. Since there is no mention of any other sex, the FSC comes to the conclusion that Islam does not accept any other sex or gender. But it doesn’t follow clearly from the verses that say God made men and women that Islam is against any other sex and that sex is the only way to know your gender. In fact, none of the Quranic texts or hadith that FSC uses to back up its claim that recognising any difference between sex and gender goes against Islamic rules backs up that claim.
When we break down the case like this, it’s easy to see the mistake in logic: The Quran says that there are two sexes, but it doesn’t say anything about the difference between sex and gender identity. Because of this, Islam says that there is no difference between sex and gender identity.
It’s easy to see why ‘a’ and ‘b’ don’t mean ‘c’. If the Quran doesn’t say anything about something, that doesn’t mean it’s bad.
The FSC also uses the hadith, which says that the Prophet (PBUH) didn’t like “effeminate men.” But the ahadith only talk about two things: one time the Prophet sent a “immoral man” away from his house, and another time he sent a man away who used henna. Historians of the early Islamic period say that “effeminate” men, also called “mukhannath,” were common and had obvious roles in society. But there is no proof that there was a blanket ban on these people, and these two events could very well be one-offs and depend on the situation. From these ahadith, it would be a stretch to say that Islam is against transgender people in general and in all situations.
It is also a stretch to conclude from these ahadith, as the FSC does, that “in Islam, both men and women are not allowed to act and behave as the opposite of their birth gender.” The FSC doesn’t think about whether the categories of “effeminate” guys or “mukhannath” that were used in early Islamic society almost 1500 years ago are the same as transgender identities as we understand and see them today. Today, more and more people around the world agree that gender identity is a spectrum that depends on a wide range of biological, social, and societal factors.
The range of accepted ways to show your gender changes a lot over time. Is there any clothes, hairstyle, or even way of walking that is only for “men” or “women?” Who will decide what to do? For instance, do women with short hair and men with long hair show a gender identity that doesn’t match their sexe? Based on the FSC’s thinking, the range of actions that are considered offensive to Islam is not only very wide, but also impossible to name.
What’s especially disappointing is that the FSC hasn’t taken into account the unique cultural status of the khwaja sira group in the subcontinent, which has existed for hundreds of years. The FSC’s decision that khwaja sira people have a disorder comes to shaming and getting rid of this group.
It is strange that the FSC hasn’t looked at the parts of Pakistan’s Constitution that promise everyone’s right to life, dignity, and equal protection under the law. Its decision could take away the hard-won rights of transgender people, who face discrimination and exclusion every day. Protecting their right to live as equal citizens can’t be seen as going against Islam, can it?