On Friday, the Federal Shariat Court (FSC) determined that it is unlawful to alter one’s gender at whim and that the Transgender Persons (Protection of Rights) Act, 2018, contains provisions that are incompatible with Sharia.
The reserved decision on a number of petitions contesting the statute was announced by Justice Khadim Hussain and Acting Chief Justice Dr. Syed Muhammad Anwer of the FSC. We anticipate the written decision.In order to give legal recognition to transgender people and ensure that discrimination against them in all spheres of life would be criminalised, the National Assembly passed the Transgender Persons (Protection of Rights) Act in 2018.
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Despite being hailed as a “landmark” measure that provided protection to a people on the margins, the act has been under legal scrutiny ever since it was passed.
The FSC had taken up petitions against the law in September 2022, making transgender people Almaas Boby and Bubbly Malik, as well as Senator Mushtaq Ahmed of the Jamaat-i-Islami and TV host Orya Maqbool Jan, parties in them.
In parallel, the Intersex Persons (Protection of Rights) (Amendment) Bill, 2022, which asked for the repeal of all portions regarded to be against Islamic and constitutional prohibitions, sought legal changes.
The court noted that gender and one’s biological sex were intertwined in the decision made today. It also mentioned how various acts of devotion, including as fasting, praying, and completing the Hajj, have a connection to gender.
The court said that transgender people have constitutional protections for their rights and that transgender people had fundamental rights under Islam. It said that the government has an obligation to provide transgender people all fundamental rights, as well as access to economic, educational, and health resources.
The FSC ruled that the definitions of “gender identity” and “transgender person” in Sections 2(f) and 2(n)(iii), respectively, of the legislation violate Sharia.
The Transgenders Act of 2018’s Sections 3 (recognition of a transgender person’s identification) and 7 (right to inherit) were likewise declared to be incompatible with Sharia by the FSC.
According to the court, transgender people’s gender is defined by their bodily characteristics.
In accordance with the FSC decision, no one was permitted to have gender reassignment surgery and their gender could not be changed arbitrarily. The court declared that “one’s gender can only remain what it was assigned at birth.”
The court stated that Section 7 (the right to inherit) allowed for anybody to alter their gender and request the inheritance they desired. The court ruled that a person could only receive an inheritance portion in accordance with their gender.
The FSC also declared that regardless of one’s biological sex, calling oneself a transgender person would be against Islamic law.
