“Transgender Person” is a person who ist- (i) Inter-sex (Khunsa) with mixture of male and feroale genital features or congenital ambiguities, or (ii) Eunich assigned male at birth, but undergoes genital excision or castration; or (iii) a Transgender Man, Transgender Woman, Khawajasira or any person whose gender identity and/or gender expression differs from the social norms and cultural expectations based on the sex ‘they were assigned at the time of their birth.’
The term transgender is a wide term. Let us clarify. Section {i} explains the category who have both male and female characteristics. These include hormones, reproductive organs, chromosomes and genitalia. Section {ii} covers eunuchs. This means “bedroom guard” in Greek. He was entrusted to guard the bedroom door of a royal woman. They were made to undergo castration to be no threat to the female royal he guarded. The castration can be unwilling act on their part. A person can be forced into castration. The problem arises in cut-pasting {from somewhere} clause {iii}. When we talk of gender identity and/or gender expression that differs from the social norms and cultural expectations based on the sex ‘they were assigned at the time of their birth’, we are entering dangerous territory. Let us first understand gender identity. This is different from the sex one has. This has to do with how they identify themselves inside their heads. A woman otherwise physically normal having normal female attributes may use clothing, behaviors etc to identify herself as a male. Likewise, a male otherwise physically normal having normal male attributes may use clothing, behaviors etc. to identify himself as a female. If desired both may return to the original biological sex for gender identity.
If we research the emergence of gender identity, it first appeared in 1960s. one’s persistent inner sense of belonging to either the male and female gender category (Money, 1994). The concept of gender identity evolved over time to include those people who do not identify either as female or male: a “person’s self-concept of their gender (regardless of their biological sex) is called their gender identity” (Lev, 2004, p. 397). UN has identified 59 kinds of gender identities. The term ‘any other person’ stated in clause {iii} covers all these 59 gender identities. With this clause it is no longer an act to protect the right of inter-sex and a eunuch. It has been diluted to include elements in conflict with both our societal norms & religious values. This clause means that individuals relating to opposite sex, identifying themselves with the opposite sex are placed as being a legitimate choice under this law. Some therein may not identify with any gender but with both or may position themselves in-between without having any sexual ambiguity. What it foremost does is, to ‘take away focus’ from the rights and plight of the marginalized community the Act claims to protect.
There are arguments for the allowance of gender identity and those against it. Hadith presents very specific quotes by Hazrat Muhammad {PBUH}. One is by Imam al-Bukh?r? in his work, one of the most authentic of books gives a hadith and translated states: Ibn ‘Abb?s r.a. said: Ras?lull?h (peace be upon him) cursed men who resemble women and women who resemble men. (Al-Bukh?r?, 2002, p. 1485)
Therefore, the term ‘transgender’ itself is misleading term for a law in a country calling itself The Islamic Republic of Pakistan. The world consists of different religions and cultures. Social acceptance for many behaviors, way of expression on multidimensional levels may exist in certain cultures but not in others. The values in a given religion on the other hand may not apply to others. It is unreasonable to state that what applies in Pakistan socially mutatis mutandis should apply in a western country or vise versa. This would be a ridiculous proposition. Khawaja Sira have been part of the regional societal norm since time immemorial. Not however those described under clause {iii}. The objection raised by the Khawaja Sira community in light of above is, with also with ID cards issued to them as to why are they stated as ‘gender X’. How does gender X identify the category of their gender identity? How will their burial rites we done? What is needed is a close scrutiny of Clause {iii} by Federal Shariah Court as it is the court that interprets a law or/and religious scholars to come to a consensus to remove the term ‘transgender’ wherever used in the Act with striking down clause {iii}.
The writer is a lawyer, academic and political analyst. She has authored a book titled ‘A Comparative Analysis of Media & Media Laws in Pakistan.’ She can be contacted at: [email protected] and tweets at @yasmeen_9.