The FSC says that a person’s gender can’t be changed whenever they want to.
The Federal Shariat Court (FSC) decided on Friday that a person cannot change their gender at will and that some parts of the Transgender Persons (Protection of Rights) Act, 2018 are against Sharia.
Acting FSC Chief Justice Dr. Syed Muhammad Anwer and Justice Khadim Hussain told the public that they were still thinking about how to rule on a set of cases that challenged the law.
The Transgender Persons (Protection of Right) Act was passed by the Syed Muhammad Anwer in 2018 to give transgender people legal rights and make sure that abuse against transgender people in all areas of life is illegal.
Since it was passed, the law that was called a “landmark” and helped protect a group that had been left out has been the subject of lawsuits and close scrutiny.
In September 2022, the FSC took up cases that challenged the law. Almaas Boby and Bubbly Malik, both transgender people, and Senator Mushtaq Ahmed of Jamaat-i-Islami were named as parties in these petitions.
At the same time, the Intersex Persons (Protection of Rights) (Amendment) Bill, 2022, asked for changes to the law. It said that all parts of the law that went against Islam and the Constitution should be taken out.
During the meeting today, the court said that Sections 2(f) (which defines “gender identity”) and 2(n)(iii) (which defines “Transgender Person”) are against Sharia.
The FSC also said that Sections 3 (recognition of identity of transgender person) and 7 (right to receive) of the Transgenders Act 2018 were against Sharia.
In a later written order, which Dawn.com has a copy of, the court said that it had listened to the arguments of the parties and experts at length and looked over the study and other materials that the parties had given.
“We’ve decided that the first thing to do is to say that, according to Islamic law as set out in the Quran and Sunnah, a person’s gender is based on their biological sex. This means that a person’s gender must match their biological sex.”
The order went into more detail about the statement by saying that many “Ahkamat and Ibadaat of Islam” are based on a person’s biological sex and not their gender.
“These Ahkamat include things like praying salat, keeping Som, going on Haj, dividing up an inheritance, etc.,” it said.
“We’ve noticed that in section 2(n) of the Disputed Act, five different words are used to describe a transgender person: (i) intersex, (ii) eunuch, (iii) transgender man, (iv) transgender woman, and (v) khawajasira.
“Whereas the terms ‘intersex,’ ‘eunuch,’ and ‘khawajasira’ refer to biological differences in sex characteristics that don’t fit into male or female categories, ‘transgender man’ and ‘transgender woman’ refer to people whose self-perceived gender identity is different from the gender they were given at birth or the gender they have biologically,” the court said.
It said that putting all of the different terms into one single term “is the main cause of confusion and conflation about the impugned Act because not only are all of the people who fall into any of the five categories of persons used in section 2(n) different physically, but the Islamic rules about them according to the Quran and Sunnah are also different based on their biological sex.”
The court said that intersex people had all the rights in the law because of Islamic law and philosophy. “An Islamic State could take special steps to help intersex people, who belong to a group that is discriminated against and is deprived of their basic rights, which are protected by our faith. They have the same basic rights as every other member of the Islamic Republic of Pakistan, according to the Constitution of Pakistan 1973.
“Therefore, Section 2(n)(ii) of the Disputed Act is not against the rules of Islam, but it needs to be made clear that, according to Islamic rules, a person cannot castrate himself to become a eunuch if he wants to. It’s only allowed if it’s medically necessary and for medical reasons, the FSC said.
The court looked at Section 3 of the act and said that it let a person change their “gender identity” from their biological sex on their CNIC, CRC, driving license, and visa with Nadra.
“Allowing any person, male or female, to change his or her gender according to his or her inner feelings or self-perceived identity, which may not match the sex assigned to that person at birth, will create many serious religious, legal, and social problems in society under section 3 of the impugned Act by having the gender identity of a “transgender women.” A person who is biologically male will be able to legally go to religious gatherings of women or public places that are only for women. The same will be true for a person who is biologically female but gets the gender identity of “transgender man” under Section 3 of the disputed Act. She will be legally considered male, which will lead to many social and religious problems in society.
In the written verdict, the court also said that it was “inclined to accept the arguments of the petitioners that on the basis of “prohibition against discrimination,” as outlined in section 4 of the disputed Act, the right to privacy of females in our society will become vulnerable and can be violated.”
“As I’ve said before, this law will make it easier for criminals to commit crimes like sexual molestation, sexual assault, and even rape against women. This is because a biological man can easily get into places and groups of women by pretending to be a “transgender woman.”
“So, according to Sadd az-Darai, or the concept of blocking evil, it is the State’s job to stop bad things from happening in a society. So, Section 3 of the Disputed Act is ruled to be against Islam’s rules, as set out in the Holy Quran and Sunnah, because a person’s biological sex is the only way to tell if they are male or female,” the ruling said.
On Section 7 of the act, which talks about transgender people’s right to inherit, the court said, “[It] is also against the teachings of Islam as found in the Holy Quran and Sunnah, because no one can get a share of an inheritance based on their “self-perceived gender identity,” which is what Section 7 and other parts of the Act allow.
“According to the Injunction of Islam, which is set out in the Quran and Sunnah, all of the legal shares of inheritance are to be divided among the legal heirs of the deceased based on their biological sex.”
“For the reasons stated above, we declare Section 2(f), which defines “gender identity,” Section 2(n)(iii), Section 3, and Section 7 of the impugned Act, titled “The Transgender Persons (Protection of Rights) Act, 2018,” to be against the rules of Islam as laid out in the Holy Quran and Sunnah of the Holy Prophet (PBUH), and they will stop being legal right away,” the FSC ruled.
So, the decision said that the petitions against the Transgender Persons (Protection of Rights) Act, 2018 had been accepted.
“Therefore, the provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to the above-mentioned Sections of the impugned Act, which have been declared to be against the teachings of Islam, shall also cease to have legal effect,” it said.