Article 25 of the Constitution of Pakistan guarantees every person equality before the law, whereas Article 26 and Article 27 expressly prohibit discrimination based on gender. Despite the constitutional guarantees, the biases and atrocities against the inter-sex and transgender community continue. Therefore, in 2018, the Transgender Persons (Protection of Rights) Act was introduced.
However, The Transgender Persons (Protection of Rights) Act 2018 has gathered much criticism due to some of its provisions being declared un-Islamic and contrary to Shariah principles. The Council of Islamic Ideology (CII) proposed the government bring amendments to the existing Transgender Persons ‘Protection of Rights Act 2018 to protect the rights of genuine ‘intersex’ persons.
Therefore, the Senate committee has recently tabled the Intersex Persons (Protection of Rights) (Amendment) Bill, 2022, in the Senate to make significant amendments to the Transgender Persons (Protection of Rights) Act, 2018.
The Act's name is also proposed to be changed to Intersex Persons (Protection of Rights) because there is a significant difference in both the terms, i.e., intersex and transgender.
“Intersex” is an umbrella term that describes differences in sex characteristics that do not fit the typically binary idea of male or female. Sex characteristics include genitals, hormones, and chromosome patterns.
Whereas “Transgender” people are people whose gender identity and sexual orientation differ from the gender they were thought to be at birth.
The terms transgender and intersex are often confused and used interchangeably; however, both are different connotations. Intersex people have reproductive anatomy or genes that don’t fit typical definitions of male or female, which is often discovered at birth. Being transgender, meanwhile, has to do with one’s internal knowledge of their gender identity or a mental state where a man may “feel-like” a woman or a woman “feel-like” a man or sometimes even may have “fluid gender perceptions” which is called “non-binary” gender. It is a psychological state of mind and cannot be equated to “Intersex” based on anatomical differences.
Overview of the Transgender Persons (Protection of Rights) Act, 2018
This legislation is an advanced declaration that gender identity inheres in the individual. The Act broadly defines a ‘transgender person’ to include intersex persons, Khwaja siras, and ‘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.’
Moreover, the Act proceeds to declare that ‘[a] transgender person shall have a right to be recognized as per his or her self-perceived gender identity.’
The Act derives its validity from the Constitution itself and provides and emphasizes the same fundamental rights be provided to intersex and transgender people as are guaranteed to every citizen.
The Act also safeguards transgender people against being compelled or employed to beg for money.
The 2018 Act provides for the rights of inheritance to transgender people. The Act declares that ‘[t]here shall be no discrimination against transgender persons in acquiring the rightful share of the property as prescribed under the law of inheritance’ and, further, that ‘the share of transgender persons shall be determined as per the gender declared on their ‘national identity card.’
The necessary result from the Islamic inheritance laws is that a male-identifying transgender person will receive more than a female-identifying transgender person.
Additionally, the Act seems to apply its detailed inheritance provisions to all transgender people in Pakistan, Muslim or non-Muslim. It does not provide an explicit exclusion of non-Muslim transgender persons from the applicability of the inheritance provision.
The legislature's intention here must be to provide for relevant personal law of inheritance to the non-Muslims.
However, this particular provision of legacy is against the Shariah principles as it allows a transgender person to self-perceive their identity and get a share in inheritance according to it. This can open doors for chaos and make a mockery of the inheritance laws as the allowance for a transgender person to opt for a share in the inheritance of his liking, i.e., equal to a male or female, is extremely arbitrary.
Contentions Revolving the Act
Unsurprisingly, litigation has recently been initiated in the Lahore High Court and the Federal Shariat Court in Islamabad, challenging the Islamic vires of the 2018 Act. However, the litigation has not centered around an argument that the Act fails to implement Islamic inheritance properly but rather that it seemingly encourages homosexuality and same-sex marriage—allegedly forbidden under Islamic law.
The issue of same-sex marriage emerged in Syed Amjad Hussain Shah v. Ali Akash alias Asima Bibi, a case decided by the Rawalpindi bench of the Lahore High Court on 14 September 2020. This case involved a petition by an aggrieved father attempting to cease the relationship his adolescent daughter had formed with an older school teacher. The father’s claim was brought using section 491 of the Pakistan Code of Criminal Procedure. Section 491 reads, in part: ‘Any High Court may, whenever it thinks fit, direct that a person illegally or improperly detained in public or private custody within such limits be set at liberty.’
The father contended that the school teacher had changed their name and official gender from female to male, presumably using the provisions of the Transgender Persons (Protection of Rights) Act of 2018. Owing to this legal change, the older (male) teacher could enter into an officially heterosexual marital union with the father’s young daughter.
In his petition to the Lahore High Court, the petitioner's father further narrated that he ‘knowing the above said illicit relation of the teacher with detenue daughter . . . immediately removed the detenue daughter from above mentioned [learning] institution but even then [the teacher] secretly connected with detenue daughter and subsequently [the teacher] changed her name from Asma BiBi to Ali Aakash, just for playing fraud with courts of law as well as an illegal act and design for in continuation of above said illegal relation with detenue daughter and after changing of name, [the teacher] managed a nikah nama with detenue daughter. . . . [E]ven in Sharia/Islam a marriage within same-sex/gender is not only prohibited but also define [sic] as adultery as well as Gunah [sin]’.
The father contended that the marriage would have been illegal and same-sex marriage but for the 2018 Act and its legal recognition of Ali Akash’s male gender self-identification.
However, the Lahore High Court did not delve into the Islamic view on same-sex marriage. The Court resolved the case on relatively narrow grounds due to an intervening divorce between the daughter and teacher and the Court’s reading of judicial precedent to mandate that the daughter’s freedom of movement and residence be respected—and, specifically, that her father and brother should not try to restrain her.
The final order of the Lahore High Court seemed to both circumvent and revive the issue of the teacher’s gender by ordering the National Database & Registration Authority (NADRA) to pass a fresh order regarding the change of entry in the column relating to gender made in the [national identity card] relating to Ali Akash alias Asima Bibi . . . following the law . . . including the provisions of the Transgender Persons (Protection of Rights) Act,2018) and after providing the fair opportunity of hearing to all the parties concerned.
Additionally, there have been a few petitions lodged in the Federal Shariat Court maintaining that the 2018 Act will promote homosexuality within Pakistan. These petitions claim that the 2018 Act is providing legal recognition of gays and lesbians' rights in the name of transgender rights, and Pakistan’s legislature intentionally or unintentionally committed serious blunders wherein:
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The definition of a transgender person is not limited to real transgender people but includes gays and lesbians
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The requirement of a medical board authorization for the recognition of a transgender person is absent
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Every country's citizen has been given the right to be recognized as transgender
However, this is not the case. A bare perusal of the Act will show that such a right to self-perceive gender is not available to every citizen but is limited to the transgender community. Keeping in view, the definition of transgender as provided in the Act to include any transgender man or woman who believes themselves to be of a different gender than as assigned at birth widens the scope of arbitrariness and presents an axiomatic conundrum. The right of transgender persons to self-perceive identity could be better regulated.
The Indian Transgender Persons (Protection of Rights) Act, 2019, for example, contemplates district magistrates medically assessing transgender persons who have undergone surgery to determine if these persons have adequately transitioned and are entitled to either a male or female identification document.
Therefore, The Federal Shariat Court must exhibit thoughtfulness in deciding the petitions and compassion for the transgender and intersex community in Pakistan.
Recommendations and Conclusion
The Senate has already presented draft legislation, Intersex Persons (Protection of Rights) (Amendment) Bill, 2022, to bring about significant changes in the Transgender Persons (Protection of Rights) Act, 2018. The bill includes provisions to ensure the welfare of transgender and intersex persons.
As per the bill, intersex persons will have the right to get an education, healthcare, employment, and other opportunities as enjoyed by ordinary human beings in society.
However, the right to self-perceive gender must be regulated better so as not to disturb the social constructs of society. This will help in the resolution of issues of inheritance as well as other social problems.
The Intersex Persons (Protection of Rights) is anticipated to be a step forward in ensuring protection for the transgender and intersex community while curing the loopholes its predecessor legislation left.
