On Friday, the Federal Shariat Court (FSC) of Pakistan issued a ruling stating that individuals cannot change their gender at will and deemed certain sections of the Transgender Persons (Protection of Rights) Act, 2018, as unaligned with Sharia law.
This judgment was delivered by Acting FSC Chief Justice Dr. Syed Muhammad Anwer and Justice Khadim Hussain, addressing a collection of petitions that challenged the law. The detailed verdict is yet to be released.
The Transgender Persons (Protection of Rights) Act, 2018, which the National Assembly passed, was established to legally recognize transgender individuals and penalize discrimination against them in various aspects of life. Despite being lauded as a ‘landmark’ law that protected a vulnerable group, the legislation has been entangled in legal scrutiny since its inception.
The FSC began reviewing petitions against this law in September 2022, with individuals including Senator Mushtaq Ahmed of Jamaat-i-Islami, TV anchor Orya Maqbool Jan, and transgender individuals Almaas Boby and Bubbly Malik among the involved parties. At the same time, there have been calls for amendments to the law under the Intersex Persons (Protection of Rights) (Amendment) Bill, 2022, which advocates the removal of sections considered contradictory to the principles of Islam and the Constitution.
In the most recent ruling, the court stated that one’s gender correlates to their biological sex and that several religious practices, including prayer, fasting, and performing Hajj, are associated with gender. In addition, the court highlighted that Islam and the Constitution uphold the fundamental rights of transgender individuals, emphasizing that the government is obligated to ensure basic rights and access to health, education, and economic facilities for transgender persons.
However, the FSC pronounced that Sections 2(f) (defining ‘gender identity’) and 2(n)(iii) (defining ‘Transgender Person’) of the act conflict with Sharia law. The court also deemed Sections 3 (recognition of the identity of the transgender person) and 7 (right to inherit) of the Transgenders Act 2018 contrary to Sharia law.
The court ruling clarified that a transgender person’s gender is defined based on physical attributes. It further stated that Sharia law does not permit gender reassignment surgery and that individuals cannot alter their gender at their discretion. Therefore, as per the ruling, a person’s gender remains the same as assigned at birth.
The court also addressed Section 7 (right to inherit), pointing out that according to this clause, a person could alter their gender and demand an inheritance based on their preference. However, the court maintained that inheritance shares should be distributed according to a person’s gender. The FSC ruled that it would contravene Islamic laws for a man or woman to identify themselves as a transgender person, disregarding their biological sex.
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