'Federal Shariat Court Verdict Dehumanises Transgenders': Activists

'Federal Shariat Court Verdict Dehumanises Transgenders': Activists
“Today people call themselves transgenders, what will happen when they will call themselves ‘cats and dogs’ in the future. Will we call them trans-species instead of transgender?”

– from the Federal Shariat Court’s (FSC) judgment


Dr Mehrub Moiz – a Khwaja Sira activist and global policy practitioner – emphasises these lines about trans-species in the FSC verdict in the 104-page judgment.

Transgender rights activists have highlighted how comparing humans to animals – and that too by a court – is dehumanising and stripping them of dignity and integrity, in a way that impacts their self-esteem. These derogatory, almost abusive words, according to the activists, are against their basic fundamental rights given by the constitution like the right to life and liberty.

In Pakistan, transgender people are already a vulnerable and marginalised community. And it does not help if a court gives a verdict that helps in consolidating already biased social opinions.

Once respected members of the community who lived in royal courts and on Sufi shrines, now they barely exist on the fringes of society, reduced to begging and dancing to survive.

Pakistan’s transgender community has survived mainly due to the efforts of a few brave and vocal people in this community, who, despite serious threats, constantly push back and make their presence felt.

One transgender activist replies to a question as to whether they feared the serious threats that they faced for speaking up, “If not now, when? If not me, who? We all have to die and what can they do more than kill us, it is better to stand up for one’s rights than die without trying.”

The Transgender Persons Protection Act was passed by Senate in 2018 and was welcomed by the transgender community. This law protected the transgender community from all kinds of discrimination in schools, workplaces and public spaces. It ensured their right to vote, inherit and run for public office.

The happiness for the law did not last long, as soon after, the Jamat-e-Islami challenged it in the Federal Shariat Court, claiming that it was against the injunctions of Islam and “promotes homosexuality.” Following this, the government on the advice of the Council of Islamic Ideology formed a committee to review the law.

This undid all the efforts of the community, making them even more vulnerable. The number of murders in the community increased. According to Amnesty International, 18 transgender people were killed during the period between September 2021 to October 2022. These were only the reported cases.

Transgender activists like Bindiya Rana work hard and fight for the rights of their community despite serious threats. Bindiya Rana is not only an activist but a leader of the transgender community who founded Gender Interactive Alliance (GIA) Pakistan, an organisation that works for the equality and civil rights of transgender people in Pakistan.

She and her associates Zehrish Khanzada, Shahzadi Rai, Dr Mehrub Moiz and Surkh Hina keep speaking up for trans rights and push back against the attempts put her community further into the corner.

These activists spoke up on behalf of their community, work hard to break stereotypes about the community, spread awareness in society and fight for their basic rights as humans.

Bindiya, Zehrish, Shahzadi and the others keep working despite death threats both online and offline. Their faces are plastered across main points around the country, with death threats underneath. Seeing one’s face on a poster with death threats takes a toll but these people go ahead regardless.
“After this law is passed, if anyone is labelled as transgender, it is mandatory for them to have a medical examination conducted by the five-member medical board – which is, by the way, illegal. This is blasphemy 2.0

The threats don’t stop there: they are attacked through social media campaigns that are constantly run against them. This would have been enough to deter the weak-hearted but not them.

“Our main purpose is to counter the misconceptions and misinformation being spread about us and our community,” says Bindiya Rana, “We have to keep speaking to spread awareness.”

On 19 May 2023, the FSC gave its 104-page judgment on the Transgender Persons (Protection of Rights) Act in which it declared that some parts of this act did not conform to Islam.

The key points of the judgment were that a person’s gender cannot be determined by their feelings. It added that a person is assigned a gender at birth and no one is allowed to change their gender on their self-proclaimed feelings.

The judgment further said, "Shariah does not permit anyone to have their gender reassigned because of impotence as the gender remains the same as it was at birth". And “No one can be declared transgender based on physical features and self-made identity.”

The transgender community reacted to this ruling across Pakistan. GIA called an emergency press conference in Karachi. Bindiya Rana, Shahzadi Rai, Dr Mehrub Moiz and Surkh Hina represented the transgender community. While their lawyer Sara Malkani, lawyer and activist Abira Ashfaq, Moniza (Aurat March) and activist and civil society member Kaleem Durrani stood in solidarity.

"This judgment is biased and it has created two main issues: inheritance and self-made identification”, says Shahzadi Rai. “The impact of this is going to be quite dangerous because we are already labeled as haram and kafir. It has used derogatory language and many words used will hurt the Muslim section of our community. Islam teaches us to respect others.”

Shahzadi Rai is a transgender rights and political activist and the violence case manager at Gender Interactive Alliance

Shahzadi adds, “Many people associate the verdicts of the Sharia court with Islam. However, it is important to note that the verdict of the Sharia court related to us has been biased and unfair. They have even called us tran-species.”

“There are people who are accepting this verdict believing it is based on an Islamic ideology, so I would like to clarify that it is not based on Islamic ideology. None of the Islamic sects have likened our community to dogs and cats. Islam is a religion of peace, that gives respect to all, which gives us respect.”

Shahzadi further says that the FSC verdict is a farce, “I was a party in this, my statement and Bindiya Rana’s statement that our lawyer Sarah Malkani submitted are not a part of the 104 pages. Eighty pages have the statements of our opposition, including the part in which have been compared to dogs and cats for which they should be ashamed of this. Our points were removed so that only one side’s narrative is highlighted. We will challenge this in the supreme court.”

Echoing Shahzadi’s words, Bindiya Rana said, “We don’t accept the Shariat court’s judgment when the Shariat court said that Islam supports khawaja sara and gives them rights. Islam is a peaceful religion and gives a message of love, why did a handful of people, who joined parties with vested interests, go to the FSC to change the logic.”

“We have not been given any rights and many from our community still have to beg; dance to earn a living.”

Bindiya says, “Islam is a religion of peace and love. It does not discriminate, then why do these people? When I went to Umra and pay my respects at the Prophet’s (SAW) shrine no one stopped me because I am transgender, I was not told to go to the third lane. When no one stopped me there and didn’t discriminate, why are we discriminated against here?”

“These people don’t the transgender people to move forward which is why they are creating problems like asking them to go through a medical examination to determine their gender. This is so derogatory and against human rights. Today’s educated transgenders will neither get scared nor back off and will challenge this.”

Bindiya adds, “If this Act is rejected then our ID cards will be rejected and we will be asked to go through the inhumane tedious medical examination process to determine the gender. We strongly condemn this bill. If there is a medical process for us, it should be for everyone.”

Dr Mehrub Moiz Awan, the only transgender Fulbright Scholar from Pakistan, calls the verdict ridiculous, likening it to a TikTok narrative and a joke.

“It (the judgment) is a copy-paste version of the right-wing conservative lobby in the UK and US etc. They have just picked it up and put it in the judgement, only changing certain words like Muslims for Christians, otherwise the verdict is a copy-paste,” the doctor says.

She further says, “The scientific ‘facts’ that have been included in this verdict cannot be found in any science book. The evidence they have quoted in this is of two members of the Pakistan Medical Association. And the statements and evidence that these two doctors have given are completely unscientific. For example they say: 'All those people who call themselves transgender suffer from a mental disease that is curable. This disease is called Gender Dysphoria.' [Gender dysphoria is a term that describes a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity. This sense of unease or dissatisfaction may be so intense it can lead to depression and anxiety and have a harmful impact on daily life. – NHS]”

Dr Mehrub says the cure for this “disease” is to be able to choose and live in one’s gender and appearance which adheres to your spiritual and inner feelings, which is called transition or gender affirmation (GST). This is the cure for this which is mentioned in all books but not by these people.

“The FSC’s judgment”, Mehrub continues, “also states that today people call themselves transgenders. They will call themselves ‘cats and dogs’ in the future, then will we call them trans-species instead of transgender? It is time FSC decided whether they are following science, Islam or illogical gossip in the court.”

She says that the number of transgenders registered in the NADRA data is just 3,600, which is less than the dogs that KMC and Islamabad Metropolitan have registered.

“The verdict further states that gender is determined in Islam by biology, not psychology. But they define it – according to biology – as ‘the reproductive capabilities’ of a person, which means that those men and women who don’t have the ability to reproduce are also transgender?”

She adds that the verdict is purposely incomplete as it is making grounds so that transgender people go through the five-member medical board. This will allow one to opt for this themselves, or any Pakistani citizen, who claims they are ‘friends’ of that someone, can petition for a medical examination to determine whether their friend is transgender.

“After this law is passed, if anyone is labelled as transgender, it is mandatory for them to have a medical examination conducted by the five-member medical board – which is, by the way, illegal. This is blasphemy 2.0 under which one can be killed for being a ‘fake’ male, woman or transgender,” Dr Moiz says.

She further adds, “This is not just some conspiracy theory of Jamat-e-Islami but it is part of tha global conspiracy agenda against Islam. It is similar to the content that anti-Islam Ben Shapiro; Candace Owens and Piers Morgan make and share, spreading conspiracies against people, especially transgenders, women’s rights and Islam in western countries. The same content is being disseminated in Pakistan under the guise of Islam.”

“This is a global neo-conservative far-right movement, it is a conspiracy by the rightists so that the conservatives control the east and west”, says Moiz. “The idea is to bring people like Trump in US; Bolsonaro in Brazil; Modi in India and Sirajul Haq in Pakistan into power and spread hatred and divide people so the weapon and war industry is kept alive.”

“FSC’s verdict is complelely against medical science and does not conform to any science, it has made a mockery of Shariat, Pakistan’s state institutions. All the state institutions should take notice that these people are making a neo-conservative far-right global machinery within the state apparatus and who are ready to murder your people. Will you allow this? Will you watch as they go ahead with their agenda?”

Surkh Hina Khanam, researcher, writer, trans activist and field supervisor at GIA speaks about the Khwaja Sira community’s 4,000-year history in this region – Pakistan, India and Bangladesh.

“Khwaja sira, hijra, gender diverse people have been part of our history for more than 4,000 years. We can find a mention of our community in ancient Hindu texts,” Surkh Hina says. “When Islam came to this region about 1,200 years ago, our community can be found in royal Muslim courts across the region. Our people were given a lot of respect and employed by royal courts. The colonial rule also gave our people the freedom to keep working as before. We were also part of Nizam-e-Hyderabad’s court and until it was abolished our social status was intact.”

She adds, “When Pakistan was created, our elders community began calling themselves khwaja siras which is linked to the respected Sufi saints like Khwaja Moinuddin Chishti and Lal Shahbaz Qalandar. Even today members of our community can be found in Qalandar’s shrine.”

“Our community is well entrenched in the Sufi society, and the social status and respect we had at the time is evident from the fact that when revered Sufi saint Baba Bhulay Shah passed away, his funeral preparation and burial was done by khwaja siras.”

Speaking about the FSC ruling, Surkh Hina says, “We are quite disappointed by it. I have a question. Pakistan is an Islamic country and there are three main Islamic sects: Sunni Deobandi, Sunni Barelvi and Ahle Tashayyoh. Were all of them taken on board when this verdict was given? The religious sect I belong to will not call us cats or dogs.”

Hina says Bindiya and others have been struggling to get rights for the community, “It is unfortunate that our members in parliament seem to sign bills without reading and pass them without considering the conseqeunces. They should not be there. Many from our community have been murdered in the name of honour this is transphobia. We have statements of murderers on record saying they murdered transgenders in the name of jihad. This is the narrative that Jamat-e-Islami, youth club and Maria B are propagating. And the last nail in the coffin is that the State of Pakistan sanctioned this through the FSC.”

Surkh Hina quotes the late Asma Jahangir’s words, “When Pakistan is an Islamic country, with an Islamic constitution and laws, why do we need parallel courts like FSC, which is a burden on the taxpayers’ money?”

Lawyer Sarah Malkani says it was codemnable that GIA points were missing from the verdict, despite the fact that they had submitted it to the court and had even went to court twice.

“We had an independent expert opinion submitted as well, but this is also missing from this judgment”, Sarah Malkani says. “There are many issues in the judgement. The biggest flaw is that an important party, the GIA organisation that represents the transgender, has been ignored. This should be one of the grounds of appeal.”

The FSC verdict has not been enforced as Sarah Malkani explains, “I would also like to emphasise that according to our law, the FSC verdict is not automatically effective. A period of 60 days is given so that it can be appealed in Supreme Court. And until this period is not completed, this verdict cannot be implemented. And if the appeal is filed, then until a verdict is not given on this appeal, the verdict cannot be enforced. More importantly, this means that at this point the Transgender Persons’ Protection of Rights Act 2018 is fully effective.”

She highlights some basic points in the ruling, “First, FSC said the definition of transgender in law is problematic. There are five different identities that have been included in this: intersex, eunuch, khwaja sira, trans man, trans woman.”

“FSC said intersex is a disability, they need special protection; eunuch and khwaja sara are the same – in fact khawaja sira is the translation of eunuch, which is incorrect. Further, they say it is a permanent infirmity of the sexual organs which puts khwaja siras into the category of disabled people. They chose to ignore that khwaja sira is not a disabled community, this is a community with a unique ID and who have been living in this region since ancient times.”

“The FSC verdict according to Islam gender is assigned at birth and Islam does not allow that behaviour, the way one lives, opposes that. This is an extremely dangerous thing, not only for transgenders but also women, as it will restrict people to live freely. Who will determine what manners, clothes and way of walking is male or female? It is impractical, usurping the basic human right to live freely.”

“It is unfortunate that FSC ignored the constitutional chapter of the Fundamental Rights chapter that guarantees the right to life, dignity and equality protection under the law. If we declare the key points of our constitution are against Islam, then what will happen to the constitutional rights of the transgender community? We should not only appeal this in Supreme Court but also continue activism and spread awareness.”