Balancing Gender Rights: Pakistan’s Federal Shariat Court’s Verdict on Self-Perceived Gender Identity

by | May 31, 2023

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About Zubair Abbasi

Dr Zubair Abbasi is an academic and Associate Editor of the Yearbook of Islamic and Middle Eastern Law, SOAS University of London. He is a co-author of recently published book, Democracy under God: Constitutions, Islam and Human Rights in the Muslim World (Cambridge University Press 2023).

The Transgender Persons (Protection of Rights) Act 2018 (the ‘Act’), passed by Pakistan’s Parliament in May 2018, marked a significant milestone following a decade-long judicial effort aimed at safeguarding the rights of marginalised sexual minorities in Pakistan. By acknowledging that a “transgender person shall have a right to be recognised as per his or her self-perceived gender identity”, the Act made Pakistan a leading Muslim country to promote the rights of transgender people. To redress the colonial-era wrongs of criminalising transgender persons under the Criminal Tribes Act 1871, the Act endorsed the fundamental right of transgender persons, including the rights to health, education, employment, and property. Indeed, the Act recognises the right of transgender people to achieve recognition of their gender based on self-declaration only, a right not available in comparable legislation of either the United Kingdom or India.

The International Commission of Jurists hailed the Act as an example of “more progressive gender recognition laws not just in Asia, but also globally” in its briefing paper published in March 2020. At this time, a petition challenging the Act was filed before the Federal Shariat Court of Pakistan, a constitutional court to exercise Islamic judicial review of laws. The petitioner contended that the Act provided a “legal cover” to homosexuality under the guise of safeguarding the rights of transgender persons by differentiating between “gender” and “sex”. The judges of the Court accepted this argument and held that Islamic teachings are based on biological identity (sex) rather than self or social construction (gender). While the Court acknowledged the existence of a third gender for “intersex persons” under Islamic law, it held that the gender identity of transgender persons, rooted in their self-perception and innermost feelings, is not recognised under Islamic law. The judges justified their decision by asserting that Islamic injunctions are based on biological sex and cannot solely rely on self-perceived gender identity. They also expressed concerns about potential infringements upon the rights of women, highlighting the presence of biological males within social and religious spaces which are deemed to be safe spaces for (cisgender) women.

This judgment contributes to contemporary debates surrounding law and gender, particularly in the context of South Asia. One key aspect of the debate is centered around the protection of socially marginalised communities, including intersex individuals, knowns a khusra in Urdu and khunsa in Arabic. The Federal Shariat Court emphasised that Islamic law recognises the legal status of intersex persons and affirms that the Islamic State has the authority to take affirmative actions to support intersex individuals. The Court recognised intersex people as a disadvantaged community entitled to all fundamental rights guaranteed by the Constitution of Pakistan. Therefore, the Court clarified that it was not denying protections to the rights of intersex people while declaring that Islamic legal principles are rooted in biological identity (sex) rather than self-perception or social constructs (gender).

Following this judgment, transgender people may face potential limitations in having their self-perceived gender identity officially recognised. However, under the constitutional design of Islamic judicial review, an appeal could be filed before the Shariat Appellate Bench, Supreme Court. Human rights activists have declared that they will file such an appeal. Until the final judgment of the Supreme Court, the effect of the judgment of the Federal Shariat Court will remain suspended. The Supreme Court has historically shown the tendency to avoid immediate consideration of appeals involving sensitive legal matters, such as the appeal regarding the inheritance rights of orphaned grandchildren under Islamic law that has been pending since 2000. Therefore, the Federal Shariat Court judgment does not immediately endanger the rights of transgender persons under the Act.

Simultaneously, while the Federal Shariat Court was deliberating on the petitions against the Act, a bill was introduced in the Senate (the upper house of the parliament in Pakistan) to protect the rights of khunsa (intersex people). This bill proposed replacing the “self-perceived gender identity” with a  “Gender Re-assignment Medical Board” to register a transgender person as a male or female. This bill, however, has not been passed by the parliament and its fate remain uncertain as it does not have the support of most political parties. The judgment of the Federal Shariat Court has ignited a crucial debate, not only on balancing gender rights, but also on the interpretative authority of Islam within the constitutional structure of the Islamic republic of Pakistan.

Want to learn more?

Read: Horizontal Reservation for India’s Transgender Community: Can the Supreme Court Deliver?

Read: New Frontiers of LGBTQ+ Liberation

Read: Depathologising Gender Identity at the United Nations: A Call to South Africa

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