Blurred Lines: Pakistan’s Transgender Community Is Caught Between A Rock And A Hard Place

Blurred Lines: Pakistan’s Transgender Community Is Caught Between A Rock And A Hard Place
After the Transgender Persons (Protection of Rights) Act was passed in 2018, the process of getting registered as a transgender person was relatively simple. The landmark decision that had granted the long-oppressed transgender —or Khawaja Sirah community of Pakistan recognition as a legal third gender -- had given them the right to self-determine their own gender based on the self-perceived identity. For conservative Pakistan, this was huge. It meant all a transgender person had to do to officially become a transwoman or a transman, was to go to their local NADRA office, state that their gender identity didn’t match their assigned sex, and they would be issued a shiny new Computerized National Identity Card (CNIC), that would state their gender as neither man, nor woman, but X.

The Act was lauded by Pakistani society and the Western world alike, and for good reason. It not only sought the protection of the transgender community, but also prohibited discrimination and harassment, allowing them to get an education, or seek medical treatment without fear of prejudice. The Act firmly outlawed forced begging and forced sex work —an ordeal many khawaja sirah’s in Pakistan find themselves in, often at the hand of gangs and mafias run by ‘Gurus’. It even touched on the topic of inheritance: a transgender person who identified as a man would be given the share of a man, and one who identified as a woman would be given an inheritance share accordingly.

Trans rights, gay rights and the Shariat

However, the Act still presented some questions. When a group of Muslim khawaja sirah’s found themselves confused about the Shariat implications that would apply to them based on the X-card, they headed to the Shariat Court to find out. They asked whether they would be allowed to perform Hajj and Umrah, since Saudi Arabia had barred transgender persons from the pilgrimages, allowing only people whose passports specified their gender as either male or female. Another question the group had was if they would be allowed to get married with an X-card, wondering if it would get conflated as a same-sex marriage, which is illegal in Pakistan, as homosexuality continues to be a punishable offence in the country.

Their concern wasn’t ill-founded: in August 2020, a transgender man from Taxila married a heterosexual woman, leading to an uproar by the bride’s father, who claimed his daughter had married another woman. Eventually, the transman was arrested, and produced before the Lahore High Court. While in the above case the transgender man, out of fear for his life, never showed up to the medical examination to confirm his trans-identity, the fear of the prevalence of homosexuality is not an insignificant one, on both camps. The already persecuted trans community does not want to ruffle any feathers, while the more conservative religious parties don’t want to open what they see as a pandoras box, culminating in a thriving LGBTQ+ movement in Pakistan.

Jamaat-e-Islami voices concerns over 'un-Islamicness' of the Bill

This is what concerned Jamaat-e-Islami’s (JI) Senator Mushtaq. When the Act caught his attention, his party felt like the provisions were too loose, and were resulting in a lot of misuse, which is why the JI then drafted an amendment to the Act. During a parliamentary session where Senator Mushtaq had tabled the proposed amendment as a Bill, he addressed his colleagues and explained his logic work. He claimed that the right to self-determine your gender went against the teachings of Islam and said that he proposed to outlaw any gender reassignment surgeries done on the basis of gender dysphoria or other psychological afflictions. Instead, Senator Mushtaq proposed the introduction of a medical board to ascertain whether a person was a ‘real’ transgender.

Senior JI leader Dr. Samia Raheel Qazi told TFT that Islam only recognized ‘intersex’ people as the third gender, which is why she refrains from using the word transgender. She says the issue of real and fake ‘intersex’ people was of grave concern, because as per a report by NADRA, it was found that since the Act was introduced four years ago, there have been 16,530 cases of men changing their gender to female, and 12,514 cases of women changing their gender to male. In contrast, she says there have been only 30 cases of transgenders changing their gender to either male or female, which to her suggests a great discrepancy, and solidifies her belief in the need for a medical board.

This proposition alarmed many trans activists and trans-led organizations. It was understood to be not only a violation of the right to self-determination, but also self-dignity and there was a lot of fear that it would lead to the snatching away of other rights such as the right to vote and the right to inherit. Aaminah Qader, the founder of a minority rights NGO She-her, told The Friday Times that the Transgender Protection Act 2018 was a very progressive Act, and Pakistan was one of the few countries to actually adopt the World Health Organization’s definition of what being transgender means.

“The amendment seeks to add that a medical board, with a general surgeon and a psychologist, has to be formed to confirm the gender identity of the trans person, and it overlooks the fact that for people who don’t have any physical indications, then you’re basically discounting any psychological or identity crisis the trans person may have,” she said, adding that the inclusion of a medical board takes away any sense of agency the trans person may have to identify wherever they lie on the spectrum of gender.

When TFT asked Aamenah whether this amendment has reasonable chances of being implemented, she said, “While it’s hard to say for sure, everything is so unpredictable in this country,” adding that the Domestic Violence Bill of Islamabad which was tabled in 2020 was never ratified into an Act because the Council of Islamic Ideology found it to be against the codes of Islam.

Timeline of trans rights movement in Pakistan

The timeline of the transgender civil rights movement has progressed fairly quickly, compared to other civil rights movements in the country, as well as globally. In 2009, the Supreme Court recognized the Khawaja sirah as a third gender, and NADRA was instructed to expedite the process of the issuance of transgender ID cards. Two years later in 2011, the community was granted the right to vote, and the next year, they were granted legal recognition as a third gender. In 2016, a trans activist named Alisha died at the Lady Reading Hospital in Peshawar after she was shot six times and then denied medical care by the hospital staff who instead deliberated over whether she should be put in the male or female ward. The death ignited a series of protests which eventually culminated in the landmark decision of 2018, in the shape of the Transgender Protection Act.

Sherkan Malik of the Transgender Rights Consultants Pakistan tells TFT that as far as civil rights movements go, the transgender civil rights movement has been the most successful. However, he believes that the bill being proposed by Senator Mushtaq could impede all of that progress. “The biggest argument here is the taking away of the right of self-dignity. As cis-gendered people, you and I don’t have to be stripped and prodded and poked to prove our genders,” he said.

However, according to Sherkan, the ministry of Human Rights that is fighting this case on behalf of the trans community is doing more harm than good to the case. “Here’s the problem: despite having an international trans expert on their team, how did they submit a book in court that says ‘we believe in the absolute promotion of LGBTQ rights’ in a country like Pakistan?” he said, explaining that the Human Rights Ministry’s legal counsel submitted the Yogakartya Principles in court. He says his consultancy group has raised some money in order to hire better legal counsel that will hopefully not perpetuate the misconception that the trans rights movement is just a gateway for the LGBTQ movement.

However, not everyone seems to have the same reservations when it comes to the medical board. Julie Khan, a transgender activist who made headlines after she reported horrific assault at the hands of a local gang in Sialkot, says that the people who passed the Act did not take into consideration the Shariat implications that would come along with it. “Will we be able to get married, how will our funerals take place, who will do our ghusl, what will our orders of pardah be like?”, she asked.

Julie said it would have been better if after self-determination, transgender people could have just gotten ID card that registered them as either male or female, as that would have created less complications. “If I have an ID card of a woman, then of course all the rights and duties of a woman would be applied to me,” she said, suggesting that if the government wanted, they could have a symbol indicating the status of a person as trans on the card, as in the case of the cards for disabled persons.

She did not have any reservations with the suggestion to implement a medical board, as ultimately, she would be getting a better deal, in terms of both rights, as well as the quotas that the government offers for members of the trans community. In fact, this is one reason why she did not oppose the medical board. “There is so much poverty in this country, do you really think if someone knew the government was offering trans people Rs 12,000 a month just for being trans, they wouldn’t want to lie about it?” she asked. Julie said that she didn’t feel like her dignity was being compromised by having to see a medical board, contending that even disabled persons have to obtain a medical certificate when getting their ID card, so how was their case any different?

She said that the inclusion of the trans community in the fold of the LGBTQ movement was impeding the cause, as the movement catered to different sexualities, but being transgender was not a matter of sexual preference, but of biology and psychology. Julie has done grassroots activism and says she speaks for the actual on-ground trans community and seems to be distrustful of other trans-led organizations. “Ultimately, it isn’t these organizations, or the court, or Jamat-e-Islami that is going to bring about the change the community actually needs. It all depends on the policy makers.”

Khadija Muzaffar is the culture editor at The Friday Times. Previously a Fulbright scholar at NYU, she enjoys writing about society, culture, music and food. She tweets at @khadijamuzaffar, but is far more interesting on Instagram.