The Transgender Persons (Protection of Rights) Act, 2018 is a law in Pakistan that aims to provide equal rights to transgender people and to safeguard their rights through legal recognition. The law was passed by the National Assembly of Pakistan on May 8, 2018, and came into force on May 15, 2018.
The law defines transgender people as “any person whose gender identity or expression is different from the sex assigned to them at birth.” It prohibits discrimination against transgender people in education, employment, healthcare, and other areas. The law also establishes a National Commission on Transgender Affairs to oversee the implementation of the law and to promote the rights of transgender people.
The Transgender Persons (Protection of Rights) Act, 2018 is a significant step forward for transgender rights in Pakistan. However, there is still much work to be done to ensure that transgender people are able to fully enjoy their rights.
Here are some of the key provisions of the law:
- Transgender people have the right to self-identify their gender.
- Transgender people have the right to access education, employment, healthcare, and other services.
- Transgender people are protected from discrimination and violence.
- The government is required to establish a National Commission on Transgender Affairs to oversee the implementation of the law.
The Transgender Persons (Protection of Rights) Act, 2018 is a landmark law that has the potential to improve the lives of transgender people in Pakistan. However, it is important to note that the law is still new and that it will take time to fully implement its provisions. It is also important to note that there is still a great deal of prejudice and discrimination against transgender people in Pakistan. Despite these challenges, the Transgender Persons (Protection of Rights) Act, 2018 is a positive step forward for transgender rights in Pakistan.
The ruling by the Federal Shariat Court of Islamabad to strike down sections of the Transgender Persons (Protection of Rights) Act, 2018 is a setback for the rights of transgender people in Pakistan. The court’s decision is based on a narrow interpretation of Islamic law that does not take into account the lived experiences of transgender people.
Details of the ruling Are below:
Case Note on “2023 PLD 301 Federal Shariat Court”
Citation:
2023 PLD 301 Federal Shariat Court
Parties:
- Appellant: Hammad Hussain
- Opponent: Federation of Pakistan through Secretary, Ministry of Law and Justice
Legal Provisions and Issues:
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Section 3 of the Transgender Persons (Protection of Rights) Act, 2018: Examined under Article 203-D of the Constitution of Pakistan. The issue was the legality of permitting a person to change their gender identity in official documents based on self-perceived identity.
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Sections 2(1)(n), 2(1)(e), and 2(1)(f) of the Transgender Persons (Protection of Rights) Act, 2018: The definition and scope of “transgender person,” “gender identity,” and “gender expression” were analyzed for their compliance with Islamic injunctions.
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Section 7(2) of the Transgender Persons (Protection of Rights) Act, 2018: Addressed the inheritance rights of transgender persons and their determination based on gender declared on CNIC.
Court’s Findings:
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Section 3 – Gender Identity Change:
- The Court held that allowing individuals to change their gender identity based on self-perceived identity could lead to serious religious, legal, and social problems.
- It was deemed against the injunctions of Islam as only biological sex should determine gender identity.
- Consequently, Section 3 of the Act was declared contrary to Islamic injunctions and ceased to have legal effect.
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Section 2(1)(n) – Definition of Transgender Person:
- The inclusion of terms like Intersex (Khusra), Eunuch, Transgender Man, Transgender Woman, and KhawajaSira under a single definition was considered a circular definition fallacy.
- The Court found that combining these diverse terms under one definition was not compliant with Islamic injunctions.
- Sections defining Intersex and Eunuch were not against Islamic injunctions, but the section defining Transgender Man and Woman was found to be against Islamic principles.
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Sections 2(1)(e) & 2(1)(f) – Gender Identity and Expression:
- The definitions of “gender identity” and “gender expression” in the Act did not conform to Islamic injunctions about the identity of male and female persons.
- The Court held that gender identity must be based on biological sex, not on self-perception or external appearance.
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Section 7(2) – Inheritance Rights:
- The Court found that determining inheritance shares based on gender declared on CNIC is contrary to Islamic injunctions, as inheritance laws are based on biological sex.
- Therefore, this provision of the Act was also declared void.
Significance:
This ruling is significant as it scrutinizes the legal definitions and provisions related to gender identity and expression in the context of Islamic law. The decision highlights the need for legislation to reflect both religious injunctions and the diverse experiences of gender and biological variations.
Disposition:
The Shariat petitions were disposed of, with certain provisions of the Transgender Persons (Protection of Rights) Act, 2018, being declared void due to their inconsistency with Islamic injunctions.
In the aftermath, Amnesty International has noted on its website that ;
“The Federal Shariat Court of Islamabad … ruled that the sections 2(f), 3 and 7 of the Transgender Act 2018 which relate to gender identity, the right to self-perceived gender identity and the right of inheritance for transgender people do not conform with their interpretation of Islamic principles. The Court ceased, with immediate effect, the sections deemed ‘un-Islamic’. During the delivery of the verdict, the Court speculated that the Act could pave the way for rape, and sexual assault of women as they allege the Act makes it easy for a man to gain access to “exclusive spaces” intended for women, “disguised” as a transgender woman. There is no publicly available evidence of such incidents taking place in Pakistan.”
The court’s decision is also based on the assumption that transgender people are more likely to commit sexual assault, which is a harmful and discriminatory stereotype. There is no evidence to support this claim, and in fact, transgender people are more likely to be victims of violence than perpetrators.
The court’s decision is a blow to the progress that has been made in recent years to improve the lives of transgender people in Pakistan. It is important to remember that transgender people are just like everyone else, and they deserve to be treated with dignity and respect.
The court’s decision is also a reminder of the challenges that transgender people face in Pakistan. They continue to face discrimination and violence, and they are often denied access to basic services. It is important to continue to fight for the rights of transgender people, and to ensure that they are able to live their lives free from discrimination and violence.
Here are some of the things that can be done to support transgender rights in Pakistan:
- Educate people about transgender identities and experiences.
- Challenge discrimination and violence against transgender people.
- Support transgender-led organizations and initiatives.
- Advocate for the passage of laws that protect the rights of transgender people.
By working together, we can create a more inclusive and just society for all people, including transgender people.
P L D 2023 Federal Shariat Court 301
Before Dr. Syed Muhammad Anwer, A.C.J. and Khadim Hussain M. Shaikh, J
HAMMAD HUSSAIN and others—Petitioners
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice and others– -Respondents
Shariat Petitions Nos. 5/I, 6/I of 2020, 5/I, 6/I of 2021, 2/I, 3/I, 6/I, 7/I, 14/I, 18/I, 20/I of 2022 and 1/I of 2023, decided on 19th May, 2023.
(a) Transgender Persons (Protection of Rights) Act (XIII of 2018)—
—-S. 4(f)—National Database and Registration Authority (Application for National Identity Card) Regulations, 2002, Regln. 13(1) [since deleted]—Constitution of Pakistan, Art. 203-D— Shariat petitions—Intersex persons—Right to perform Hajj or Umrah—Plea raised by the intersex persons that they cannot perform Umrah or Hajj with CNIC Cards having gender Mark “X”, is a very serious issue, therefore, National Database and Registration Authority (NADRA) must develop some rules or criteria of issuing CNIC Cards to Khunsa persons so that they can perform Hajj—Impugned Regulation 13(1) of the National Database and Registration Authority (Application for National Identity Card) Regulations, 2002 had been deleted by NADRA during the proceedings of present petitions through the National Database and Registration Authority (Application for National Identity Card) (Amendment) Regulations, 2022—Shariat petitions were disposed as having become infructuous.
(b) Transgender Persons (Protection of Rights) Act (XIII of 2018)—
—-S.2(1)(n)—Constitution of Pakistan, Art. 203-D—Shariat petitions—Transgender person— Definition—Scope—Terms Intersex (Khusra), Eunuch, Transgender Man, Transgender Woman and KhawajaSira included in the definition of “transgender person” under the Transgender Persons (Protection of Rights) Act, 2018—Repugnancy to injunctions of Islam—Five terms (Intersex (Khusra), Eunuch, Transgender Man, Transgender Woman and KhawajaSira), which are included in the definition of “transgender person” in S. 2(1)(n) of the Transgender Persons (Protection of Rights) Act, 2018 (‘the impugned Act’), are not identical and similar—Combining the said five terms under one definition of ‘transgender person’ can be considered a circular definition fallacy as it implies that all these terms are the same or interchangeable—Terms Intersex, Eunuch and KhawajaSira refer to biological variations in sex characteristics, while ‘Transgender man’ and ‘Transgender woman’ refer to individuals whose self-perceived gender identity differs from the sex they were assigned at birth or from the sex they have biologically— Not only are all persons who fall within the category of any of the five terms used in S. 2(1)(n) different physically but the ruling of Islamic injunctions according to Quran and Sunnah about them are also different—Section 2(1)(n)(i) of the impugned Act which defines the term Intersex (Khusra) is not against the injunctions of Islam—Section 2(1)(n)(ii) of the impugned Act, which mentions Eunuchs is also not against the injunctions of Islam but needs clarity as according to Islamic injunctions a person cannot undergo castration to become eunuch at his will—However, S. 2(1)(n)(iii) of the impugned Act is against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh) because many Islamic injunctions and direction are subjected to and are based on the biological sex of a person (male or female) which cannot be based on the basis of the innermost feelings or self-perceived identity of a person (male or female) about his or her “gender” being different from the sex he or she has since birth.
Islamic injunctions recognize the existence of an intersex person. In Arabic such persons are called Khunsa and in Urdu they are called Khusra, as is also mentioned in Section 2(1)(n)(i) of the Transgender Persons (Protection of Rights) Act, 2018 (‘the impugned Act’). Islamic law and jurisprudence provide intersex person all those rights which are mentioned in the impugned Act. An Islamic State may even take affirmative actions to support intersex persons and their communities being special persons. Section 2(1)(n)(i) of the impugned Act which defines the term Intersex (Khusra) is not against the injunctions of Islam.
The inclusion of term ‘intersex’ within the meaning of term ‘Transgender person’, as is done in the Transgender Persons (Protection of Rights) Act, 2018 (‘the impugned Act’), is one of the main sources of misunderstanding and confusion regarding the impugned law; the inclusion of the two terms within the meaning as synonymous to one another is a main source of conflation.
Both the terms ‘intersex’ and ‘transgender’ have two different meanings. This is a fundamental flaw in the term ‘transgender person’ as defined in the impugned Act, because the “gender identity” of intersex persons is associated with the sex assigned to them at the time of birth; whereas “Transgender” is a term, which describes people whose internal sense of being male or female, does not match with the sex they were assigned at the time of birth.
Terms ‘intersex’ and ‘transgender’ are two different categories of persons and a ‘transgender’ person cannot be called an ‘intersex’ person or vice versa. Whereas, the impugned Act includes the term intersex within the definition of ‘Transgender Person’ in Section 2(1)(n) which is one of the causes of confusion and misunderstanding in the impugned Act.
Islamic law recognizes the “gender identity” of an intersex person which is based on some physical attributes or biological feature of a person, but does not recognize the “gender identity” of a transgender persons which is based on their self-perception and innermost feelings about their sex.
Similarly, Islamic injunctions do recognize the existence of eunuch persons, which are called as Khasi in Arabic and in Urdu. In Urdu they are also called KhawajaSira, which term is wrongly placed in Section 2(1)(n)(iii) of the impugned Act instead of Section 2(1)(n)(ii) being Urdu translation of English word, eunuch. Furthermore, according to Islamic injunctions a person cannot do castration to become eunuch at his will. It is only allowed due to health concerns or on medical grounds. Eunuchs are considered as male persons 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(1)(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 as a medical requirement and on medical grounds.
Historically, the term eunuch refers to a man who had been castrated, often for social or cultural reasons. The term is considered outdated and may be considered derogatory by some. In contemporary usage, the term is sometimes used to refer to individuals who have had their testes removed either due to some serious medical conditions like cancer, etc. or due to some accident.
Henry Campbell Black, M.A., Black’s Law Dictionary, Revised 4th Ed., 1968, St. Paul, Minn. West Publishing Co. and Corpus Juris Secundum by Francis J. Ludes and Harold J. Gilbert (Vol.31), 3rd Reprint (1980) ref.
Section 2(1)(n)(ii) of the impugned Act talks about a eunuch person, which includes male person who undergoes excision or castration. Such persons are referred to in Arabic by the term Khassi, which is also used in Urdu in the same meaning, whereas in Urdu the terms of “Khawaja Sira”, and “Aakhta” are used for castrated male person. For castrated male there are many terms used in Urdu language in addition to Khawaja Sira and are generally considered as derogatory terms.
Shan ul Haqq Haqqi, Oxford English-Urdu Dictionary, ISBN-13: 978-0195793406;
The term “KhawajaSira” used in Section 2(1)(n)(iii) of the impugned Act is inappropriately used, because, it is an Urdu translation of the English word eunuch or castrated male. Hence, this misplacement of the term of KhwajaSira in the impugned Act is a source of another confusion regarding the impugned Act and can be a source of abuse of the law as well. The process of undergoing genital excision or castration cannot be left upon the personal will and whim of a person. Furthermore, the procedure of castration is only associated to male persons. It may only be done in response to serious medical requirement in exceptional cases because generally under Islamic law no one is allowed to undergo genital excision or castration.
The definition of eunuch, as it is defined in Section 2(1)(n)(ii) of the impugned Act is against the injunctions of Islam, because no one is allowed to undergo genital excision or castration in the light of Islamic injunctions. However, the genital excision or castration is only permissible in exceptional cases where it is so advised by expert medical professionals in order to cure certain disease. The provision for this exception is missing from the impugned Act, which has to be there compulsorily because otherwise it gives room for interpretation that ‘excision of genitals’ or ‘castration’ of a male person is legal and permissible without any restriction. Causing genital excision or castration of another person is a sin and a crime under Islamic law, which is also punishable under different sections of Pakistan Penal Code, 1860 under Chapter 19, which is relevant to offences affecting the human body including the crime of committing Itlaf-i-Udw and Itlaf-i-Salahiyat-i-Udw.
So far as the term “KhawajaSira” is concerned, as it is used in the impugned Act in Section 2(1)(n)(iii), it is misplaced because it is Urdu translation of the English word “eunuch” or “castrated male”; therefore, such misplacement of this term is a source of confusion and misuse of the impugned Act because under Islamic law no one is allowed to undergo genital excision or castration without any valid medical reason. Hence, the process of undergoing genital excision or castration cannot be left upon the personal will and whim of a person without any medical requirement in exceptional cases. In the impugned Act the term of KhawajaSira instead of being mentioned in Section 2(1)(n)(ii) as an Urdu translation of an English word eunuch, is erroneously mentioned in Section 2(1)(n)(iii) which not only causes irregularity in the legislation but also causes confusion in understanding the law. The placement of this term (KhawajaSira) at an improper place i.e. in Section 2(1)(n)(iii) instead of Section 2(1)(n)(ii) affects and undermines the purpose of the law.
Al -Mawsoo‘ah al-Fiqhiyyah vol. 19 pages 120, 121 ref.
The definition of term ‘ transgender person’ as contained in section 2(1)(n) of the impugned Act, suffers from serious mistakes of legislative drafting. Combining the different terms of (i) intersex, (ii) eunuch, (iii) transgender man, (iv) transgender woman and (v) KhwajaSira under one definition of ‘transgender person’ can be considered a circular definition fallacy as it implies that all these terms are the same or interchangeable. The terms Intersex, Eunuch and KhawajaSira refer to biological variations in sex characteristics, while ‘transgender man’ and ‘transgender woman, refer to individuals whose self-perceived gender identity differs from the sex they were assigned at birth or from the sex they have biologically. The inclusion of all these different terms in one single term is the main cause of confusion and conflation about the impugned Act because not only all those persons who fall within the category of any of the five categories of persons used in section 2(1)(n) are different physically but the ruling of Islamic injunctions according to Quran and Sunnah about them are also different.
Section 2(1)(n)(iii) of the impugned Act is 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 because many Islamic injunctions and direction are subjected to and are based on the biological sex of a person (male or female) which cannot be based on the basis of the innermost feelings or self-perceived identity of a person (male or female) about his or her “gender” being different from the sex he or she has since birth. Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to section 2(1)(n)(iii) of impugned Act, shall also cease to have legal effect. Shariat petitions were disposed of.
(c) Transgender Persons (Protection of Rights) Act (XIII of 2018)—
—-S. 2(1)(n)(i)—Constitution of Pakistan, Art. 203-D—Shariat petitions—Intersex person— Medical procedure to treat any physical or biological infirmity—Repugnancy to Injunctions of Islam—Islam promotes protection and promotion of life or Hifz al-Nafs, and, protection and promotion of progeny or Hifz al-Nasl, which are two of the five basic goals of Shariah (Maqasid
Al Shariah)—Therefore, on the basis of these two principles of Shariah, the medical treatment of intersex persons to treat any physical and biological infirmity in their sexual organs and reproductive system is not only permissible but desirable under Shariah Law according to the Islamic injunctions—In accordance with these principles of Shariah, any medical treatment and cure of intersex persons which helps them in their complete sex affirmation as either male or female is preferable under the principles of Maqasid Al Shariah.
Islam being a pro-life religion permits all types of medical cures and treatment for human beings that are lifesaving and promote the cure and health in human beings. Any kind of medical treatment and cure is legal and permissible which is related to the cure of reproductive infirmity. Hence, according to the injunctions of Islam in accordance with the principle of Hifz al-Nasl i.e. protection of life, the treatment of any infirmity in the sexual organs or reproductive system does not make any male or female into a person of a gender different from the one which conforms to his or her biological sex. If a woman loses her ability to reproduce due to any reason, then that does not change her gender. Even in case of the complete loss of her reproductive ability, her gender will remain the same, and all the injunctions of Islam i.e. Ahkamat according to directions of Allah and the Holy Prophet (pbuh)
which are meant for women will continue to apply on her. Same is the case of male persons that in the event of any infirmity in their sexual organs or reproductive system, their gender will not change. Therefore, any kind of corrective surgery in the reproductive organs is permissible according to the injunctions of Islam on the basic principles of Shariah i.e. Hifz-al-Nafs i.e. protection of life and Hifz al-Nasl i.e. protection of progeny. Any kind of medical intervention in a human
body which adversely affects the sexual ability and reproductive ability of that person without any valid medical reason is not permissible. All such medical treatments must be carried out in accordance with the governing principle that the gender of a person must conform to the sex of a person. Shariat petitions were disposed of.
(d) Transgender Persons (Protection of Rights) Act (XIII of 2018)—
—-S. 2(1)(n)— Constitution of Pakistan, Art. 203-D— Shariat petitions—Whether sex or gender provides the basis for gender identity of a person as male or female in the light of the injunctions of Islam as laid down in the Holy Quran and Sunnah—Held, that Islam gives recognition to only two sexes i.e. male sex and female sex and, therefore, it makes sex as the basis of identity of a male person and a female person and not their gender—Any law, rule or regulation which gives gender of a person legal precedence over sex is illegal and void being against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh)—In Islam since ‘sex’ is the basis of identity of male and female therefore, Islam does not allow the voluntary change of sex by any male or female, either by way of medical or hormonal etc. intervention.
Sex and gender are two different words or terms. Term “sex” refers to the physical differences between people who are male or female.
In some cultures and societies a person or a human being is defined and identified by his or her ‘gender’ and not by his or her ‘sex’. In those cultures and societies the gender of a person has precedence over his or her sex. This is relatively a recent phenomenon but is getting ground very fast in some cultures and societies. However, in Islam the defining factor for a human being in this context is “sex” not the “gender”. According to the teachings of Islam, a person has to be identified from his or her biological and physiological identity which is his or her “sex”. Islam requires both the male and female persons to make their gender subject to their respective sexes. Islam gives recognition to only two sexes i.e. male sex and female sex and, therefore, it makes sex as the basis of identity of a male person and a female person and not their gender.
An-Nisaa, 4:1; Al-A’raf, 7:189; Al-Hujuraat, 49:13; An-Nisaa, 4:1 and Al-Qiyaama, 75:38- 39 ref.
According to the injunction of Islam there is no other sex or gender other than male and female. Any human being who has some ‘defect’ or ‘deficiency’ in his or her sexual, biological, physiological or hormonal characteristic from that of his or her natal sex then Islamic Law or Shariah does not consider such a human being as a person of some other sex or gender. Islam
clearly refers to such a person as member of either of the two sexes i.e. male or female. Such persons are called Khunsa in Arabic which are divided into “male Khunsa’ and ‘female Khunsa’ and which are closely translated into English as ‘intersex’ persons.
In Islam since ‘sex’ is the basis of identity of male and female therefore, Islam does not allow altering sexual organs or the voluntary change of sex by any male or female, either by way of medical or hormonal etc. intervention.
In Islam males as well as females are not allowed to act and behave as an opposite sex to the one which was assigned to him or her at the time of his or her birth.
Reported by Abu Dawood, 4928 and others See Saheeh al-Jaami’, 2502
Hence, according to Islamic injunctions as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh), the sex of any person has precedence over gender, be it male or female. Therefore, any law, rule or regulation which gives gender of a person legal precedence over sex is illegal and void being against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh). Shariat petitions were disposed of.
(e) Transgender Persons (Protection of Rights) Act (XIII of 2018)—
—-Ss. 2(1)(e) & 2(1)(f)—Constitution of Pakistan, Art. 203-D—Shariat petitions—‘Gender identity’ and ‘gender expression’—Term ‘gender identity’ as defined in S. 2(1)(f) and the term ‘gender expression” as defined in S. 2(1)(e) of the Transgender Persons (Protection of Rights) Act, 2018 (‘the impugned Act’) and as they are used in different provisions of the impugned Act– -Repugnancy to injunctions of Islam—Definition of “gender identity” in S. 2(1)(f) of the impugned Act does not conform to the criteria of identity of a male person and a female person according to the injunctions of Islam—In Islam, the basis of “gender identity” of a male or female is the sex of that person—According to injunctions of Islam the gender identity of a person cannot be based on inner most feelings or as per self-perception of a person which is other than the biological sex of that person as stated in S. 2(1)(f) of the impugned Act—Similarly, the gender identity of a person cannot be based on the basis of his or her attire or outer look or how a person presents his or her gender as stated in S. 2(1)(e) of the impugned Act.
The Transgender Persons (Protection of Rights) Act, 2018 (‘the impugned Act’) makes “gender” as the basis of” “gender identity” and permits any person to identify himself or herself in accordance to his or her innermost and individual sense as either “transgender man” or transgender woman” in accordance with section 2(1)(n)(iii) of the impugned Act. By having this form of “gender identity”, male or female, which is different from the sex of person assigned to him or her at birth, Section 2(1)(f) of the impugned Act makes it possible for a person to be identified as (i) Male; (ii) Female; (iii) A blend of both, or; (iv) Neither of them.
Definition of “gender identity” in section 2(1)(f) of the impugned Act does not conform to the criteria of identity of a male person and a female person according to the injunctions of Islam. In Islam, the basis of “gender identity” of a male or female is the sex of that person. It is the sex of a person which defines a person as a male and female. The gender should conform to the sex, and sex should not be made to conform to the gender. In Islam self-perception of a person which is opposite to the biological sex of that person does not make the basis of ‘gender identity” of that person (male or female). The basis of ‘gender identity’ of a person is only the biological sex of that person. Hence, 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 against the injunctions of Islam.
According to injunctions of Islam the gender identity of a person cannot be based on inner most feelings or as per self-perception of a person which is other than the biological sex of that person as stated in Section 2(1)(f) of the impugned Act. Similarly, the gender identity of a person
cannot be based on the basis of his or her attire or outer look or how a person presents his or her gender as stated in Section 2(1)(e) of the impugned Act.
Islam assigns many religious roles and duties to every Muslim on the basis of their sex, like:
i. All the directions and injunctions regarding marriage in the Holy Quran and Sunnah of the Holy Prophet (pbuh) are based on sex, and not the basis of “self-perceived gender” of a person, like consummation of marriage, the solemnization of Nikah, settlement of Mehr and pronouncement of Talaq and Khula, etc. All the directions of Allah and the Holy Prophet (PBUH) regarding marriage are divided upon the male and female persons. Such directions cannot be executed in accordance with the injunctions of Islam based on Holy Quran and Sunnah if the gender identity of a person is allowed to be made on the basis of the term “gender identity” as defined in Section 2(1)(f) of the impugned Act.
(ii) Some of the directions regarding Taharah in Islam are based on sex of a person, and not on the gender of a person, like the directions to women for the period of menstruation have direct linkages with the performance of Salat, Soam, and even the Hajj. Meaning thereby a person whose sex is female by birth or who is a woman and feels that her gender is that of a male on the basis of her “innermost feelings” and starts “self-perceiving” herself as “male and thinks it is permissible for her to perform Salat or keep fasting during the period of menstruation cannot be allowed in Islam. This change in her “gender identity” will also affect the religious rights of the public at large because for example such a female person, who becomes a ‘male’ on the basis of her self-perception, will not be allowed to stand in between the Suf of males in a Masjid (mosque), as there are rules for males and for females of making Suf in a Masjid to offer prayer.
(iii) In performance of Hajj, if the gender as perceived by someone for himself or herself is made the basis of ‘gender identity’ and not the sex, then there may occur a serious problem in performance of Hajj, as the Ahram for male and female persons is different. If a person, who is a female by sex but perceives herself as male, and consequently changes her identity as a man in the documents of National Database and Registration Authority (NADRA), etc. and accordingly she insists to wear the Ahram of man to perform Hajj, then naturally she cannot be allowed to do so. Likewise, a male person, whose sex is male by birth and subsequently he starts perceiving himself as a female and changes his documentation with NADRA and accordingly insists to perform Hajj by wearing a female Ahram on the basis of his right of “gender expression’ which is defined in section 2(1)(e) of the impugned Act and seeks permission to have accommodation with females while performing Hajj on the basis of Section 14, which provides the right of access to public places, then naturally it cannot be allowed. These are serious problems, which the people will face and as a result of which they will not be permitted to perform Hajj in accordance with the injunctions of Islam.
Section 2(1)(f) of the impugned Act containing definition of “gender identity”, is 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. Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to section 2(1)(f) of impugned Act, shall also cease to have legal effect.
(f) Transgender Persons (Protection of Rights) Act (XIII of 2018)—
—-Ss. 7(2) & 2(1)(f)—Constitution of Pakistan, Art. 203-D—Shariat petitions—‘Gender identity’—Transgender person—Inheritance, right of—Section 7(2) of the Transgender Persons (Protection of Rights) Act, 2018 (‘the impugned Act’)—Repugnancy to injunctions of Islam— According to the wordings of S. 7(2) of the impugned Act, the share in inheritance of a transgender person shall be determined as per his/her gender declared on CNIC, which means if a woman starts feeling that she is a male person and gets herself registered as a male person in the record of National Database and Registration Authority (NADRA) and accordingly gets CNIC, then she will be entitled to get the share of a male out of the inheritable property—All the directions of Islam regarding division and distribution of inheritance shares are based on the basis of sex of the legal heirs of a deceased; it is the sex of a person, which has the defining status to decide how much share that person will get from the inheritance—Male person cannot get the share of a female person and a female person cannot get the share of a male person—Therefore,
the right to inherit as mentioned in S. 7(2) of the impugned Act is against the injunctions of the Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh) and will cease to have any legal effect immediately—Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to S. 7(2) of impugned Act, shall also cease to have legal effect— Shariat petitions were disposed of.
(g) Transgender Persons (Protection of Rights) Act (XIII of 2018)—
—-S. 3—Constitution of Pakistan, Art. 203-D—Shariat petitions—Section 3 of the Transgender Persons (Protection of Rights) Act, 2018 (‘the impugned Act’) permitting a person to get his or her “gender identity” changed from his or her biological sex in identity documents including with National Database and Registration Authority (NADRA) on the CNIC, Child Registration Certificate (CRC), Driving Licence and Passport etc.—Repugnancy to Injunctions of Islam— Permitting any person, male or female, to change his or her gender in accordance to his or her inner feelings, or self-perceived identity, which may not conform to the sex assigned to that person at the time of birth, will create many serious religious, legal and social problems in society—Right to privacy of females in the society will become vulnerable and can be violated— Such law will pave the way for criminals in the society to easily commit crimes like sexual molestation, sexual assault and even rape against females because it will make it easy for a biological male to get access to the exclusive spaces and gatherings of females in the disguise of a “transgender woman”—Blocking the way of evil in a society is the duty of the State under the principles of “Sadd adh-dhara’i’” or the principle of blocking of evil—Hence, S. 3 of the Transgender Persons (Protection of Rights) Act, 2018is against the injunctions of Islam as laid down in the Holy Quran and Sunnah and will cease to have any legal effect immediately as only the biological sex of a person can determine his/her gender identity as male or female—
Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to S. 2 of impugned Act, shall also cease to have legal effect—Shariat petitions were disposed of.
