On 19 May 2023, the Federal Shariat Court (FSC), Pakistan’s religious court tasked with ensuring that the laws conform to Islamic jurisprudence, struck down three sections of The Transgender Persons (Protection of Rights) Act (TPA), 2018. These sections included Section 2(1)(f) and 2(1)(n)(iii) concerning the definition of “gender identity,” Section 3, which allowed individuals to change their gender identity on official documents, and Section 7 which addressed the “Right of inheritance” of transgender persons. The court deemed these sections to be against the injunctions of Islam.
In Pakistan, no law can be passed without the assent of the Islamic Ideology Council (IIC), another constitutional body tasked with ensuring adherence to Islamic principles. In 2018, with much fanfare, transgender activists ensured the passage of the Transgender Protection Act after persuading the Council that Islam supports the rights of transgender persons. Hence, the Transgender Persons (Protection of Rights) Bill became law not as a consequence of the growing liberal values but because of the strategic outreach of transgender activists who convinced the IIC that the Act aligned with the Quran and Sunnah – the traditions and practices of the Islamic Prophet Muhammad. The legislation also gained wider social and political support because of the widespread view that its provisions were in accordance with Islamic principles.
Yet just five years later, the Federal Shariat Court has struck down internationally praised sections of this cutting-edge protective legislation. To much dismay, during the FSC proceedings, the Islamic Ideology Council categorically denied their previous assent and stated that the law was never discussed with them and, in fact, contradicts Islamic values.
It is important to underscore that the Act continues to offer protection to a smaller subgroup within the transgender community, specifically intersex people, even in its current form. However, the challenge lies in ensuring the protection of those who have now been excluded from its ambit. Addressing this issue requires understanding what led to this setback, re-evaluating strategies, forming new alliances, and developing new approaches to engage with adversaries to move the debate forward.
What Went Wrong?
The current debate surrounding the validation of the Act revolves around the question of how one defines and identifies “transgender persons” within the framework of Islam. In 2018, definitions for various categories of people of trans, intersex or fluidly gendered people were common knowledge. Further, translations of the same into Urdu were also available to anyone examining the issue.
During the formation of the Act, there was a significant interplay of language in action.
Transgender, an umbrella term, when translated into Urdu, is usually equated to Khawaja Sira, a term that refers to hijras. The general misconception about hijras is that they are limited to persons who are born intersex. However, the Hijra subculture is a unique social group in South Asia consisting of transgender and intersex individuals, characterised by their own customs and traditions.
The TPA was therefore seen by the general public as an avenue to protect the rights of these traditional transgender persons, i.e. those who believe transgender people should not have functional genitals of the sex they were assigned at birth. However, the definition of transgender persons in the Act was much broader and included individuals who were not necessarily intersex but identified with a gender that was different from the one assigned to them at birth.
Initially, proponents of the Act deployed the Islamic concept of purdah (an act of faith that entails the acts of honour, respect, and dignity of a person) to defend self-identification as a physical examination to determine gender would have subjected individuals to unwarranted violation of purdah.
Many scholars of the IIC also believed that the English terminology ‘transgender’ was a translation of the Urdu word ‘Khawaja Sira.’ When the pressure of right-wing actors increased on the State, promoting the view that the right to self-identification will encourage homosexuality, the IIC revised its perspective, asserting that ‘intersex is a more appropriate description, as the term ‘transgender’ has an unlimited scope and leads to confusion. In contrast, transgender activists maintain that earlier, everyone was confident about the term and its definition.
During the court proceedings, both the petitioner and respondents referred to the same Quranic verse but provided different interpretations. The TPA was initially rooted in theological acceptance, and now different interpretations of the same verses have become a point of departure. The clever deployment of semantics to ensure enactment was always a risky strategy. It took only a couple of years for right-wing political parties and dissident segments of the transgender community to understand the true implications of the Act – that it allows for self-identification of gender.
The Way Ahead for Trans Rights in Pakistan
Setbacks notwithstanding, the Act has yielded dividends in the last five years that should be built upon. It has resulted in the increased visibility of transgender individuals in public life, and the state has implemented several measures to provide them with representation within the government framework. Multiple political parties support the Act, and the Ministries of Human Rights, and Law and Justice have endorsed it as being aligned with the teachings of Islam and the Constitution of Pakistan. It is good news that the Act, as amended, continues to protect smaller sub-groups and gives them legal recognition. At least in that regard, there is no argument.
In terms of regaining lost protections, given the current socio-political situation in Pakistan, there is, at present, no effective coalition apart from those already supporting the Act. The latter’s capacity to fight back stands neutralised for the moment. Once religious institutions take a stance, it becomes challenging for political parties to oppose it, making the struggle for transgender rights a long-term endeavour.
One of the necessary steps is for the transgender community to reach a consensus within itself on the issue of definitions. However, achieving this is a challenge due to the generational conflict between traditional transgender individuals and millennial transgender individuals. Specifically, regarding gender identity, many traditional gurus within the transgender community do not support the concept of self-identity. Instead, they hold the view that individuals with functioning male genitalia cannot identify as transgender and should be considered crossdressers. They believe that the transgender label is being used to promote homosexuality, and they refer to transgender individuals involved in drafting the bill as men. A notable traditional transgender guru, during a key informant interview, said, “gadhay pei lakeerein bana kar zebra nai ban jata” (drawing lines on a donkey does not make it a zebra).
On the other hand, Pakistan’s current transgender movement is led by a new generation of young transgender activists I refer to as the “Millennial Pakistani Transgender.” The emergence of these individuals, who are educated, articulate, and professionally ambitious, has sparked community transformation and political empowerment in unprecedented ways. Their presence has also challenged the traditional Hijra culture. Due to this generational conflict, the transgender community in Pakistan is divided, with traditional transgender individuals seeking to define themselves according to the judgement, while Millennial transgender individuals have been excluded.
As a gender minority, the transgender community has substantial support from various actors. This support is not enough. What is needed is a greater awareness raising and outreach to the wider community that does not subscribe to an expansive, self-identifying view of gender.
Allies of the Transgender Protection Act should create general awareness in society related to matters of gender identity and the importance of self-identification. A combination of more strident voices, including non-gender minority voices, will perhaps be effective. One cannot just wish away that structure of the state. This is a public conversation that has to take place in a strategic and nuanced way in the short and long term, and public conversation can only produce dividends if accompanied by an end to divisions and bigotry within gender minorities themselves.
Danyal Khan – Program Officer, iProbono Pakistan