FSC declares sections 3 & 7 & two sub-sections of section 2 of the Transgender Persons (Protection of Rights) Act, 2018, as un-Islamic

ISLAMABAD, May 19 (SABAH): The Federal Shariat Court (FSC) declared un-Islamic on Friday sections 3 and 7 and two sub-sections of section 2 of the Transgender Persons (Protection of Rights) 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 their 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.

Two-member bench of the FSC headed by Acting Chief Federal Shariat Court Justice Syed Muhammad Anwar and comprising Justice Khadim Hussain delivered the judgment on a set of petitions challenging the law on Friday.

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.

“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 Khawaja Sira).

“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 impugned 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'”.

The Federal Shariat Court ruled that a person cannot change their gender at will and declared certain sections of the Transgender Persons (Protection of Rights) Act, 2018 to be against Sharia.

The National Assembly had enacted the Transgender Persons (Protection of Right) Act in 2018 to provide legal recognition to transgender persons and ensure that discrimination against transgender persons in various walks of life shall be punishable.

Hailed as a ‘landmark’ law that offered protection to a marginalised community, the legislation however has been embroiled in litigation scrutiny since its passage.

In September 2022, the FSC had taken up petitions challenging the legislation — making Jamaat-e-Islami’s Senator Mushtaq Ahmed Khan and TV anchor Orya Maqbool Jan parties in them along with transgender persons Almaas Boby and Bubbly Malik.

Simultaneously, amendments to the law have also been sought under the Intersex Persons (Protection of Rights) (Amendment) Bill, 2022, which called for the deletion of all those sections deemed against the injunctions of Islam and the Constitution.

In the verdict announced on Friday, the court observed that gender was related to one’s biological sex. It further noted that many acts of worship, including praying, fasting and performing Hajj, were also connected to gender.

The court further stated that Islam provided transgender persons with fundamental rights, adding that their rights were also enshrined in the Constitution. It observed that the government was bound to provide transgender persons with all basic rights as well as health, education, and economic facilities.

The FSC declared Sections 2(f) (definition of ‘gender identity’) and 2(n)(iii) (definition of ‘Transgender Person’) of the act to be against Sharia.

The FSC also ruled Sections 3 (recognition of identity of transgender person) and 7 (right to inherit) of the Transgenders Act 2018 to be against Sharia.

The court said that the gender of transgender persons was determined on the basis of their physical attributes.

The FSC verdict stated that the Sharia did not allow anyone to undergo gender reassignment and that no one could change their gender at their will. “One’s gender can only remain what it was assigned at birth,” the court ruled.

Regarding Section 7 (right to inherit), the court said that under this clause anyone could change their gender and seek an inheritance of their choosing. The court said that a share in inheritance could only be obtained according to a person’s gender.

The FSC further ruled that it would be against Islamic laws if a man or woman called themselves a transgender person irrespective of their biological sex.