Daily Times

The Transgender Persons (Protection of Rights) Act 2018, much glorified by human rights activists and termed as progressive, unprecedented and landmark by International Commission of Jurists has been criticized and called un-Islamic by religious clerics and general public in Pakistan. The law aimed to provide fundamental human rights to Khawajasira- an umbrella term in Urdu for non-binary and gender nonconforming people often referred to as a “third gender”. However, the question here is why despite having an intention to address the grievances of a marginalized community, the act has invited criticism?

Since the inception of Pakistan in 1947, Khawajasiras often confused with transgender have faced sheer discrimination and have been demanding well deserved rights of an equal citizen in this Islamic state. As their political and legal struggles took up momentum around 2009, the question of legitimate rights turned into a public discourse on the very composition of their gender and came under increased scrutiny in the courtrooms and media spaces. I have particularly used the word Khawajasira because the word transgender does not represent the marginalized community under discussion in this article and for which such an act was long awaited. In the following lines, I intend to address the issue from a religious as well as medical perspective and analyse the act to see whether the fables and myths attached to it are real or just criticism for the sake of criticism. The discussion revolves around three words i.e. Khawajasira, Intersex and Transgender because without explaining these three terms, the critical analysis of the act would not be meaningful.

In international standards, there is no single definition of transgender person. The definition used by the Commissioner for Human Rights for the Council of Europe, is based on the belief that one can have a gender identity entirely different from the gender assigned at birth.

The Transgender Persons (Protection of Rights) Act 2018 in its present form is also a step towards that end. According to Section 2(f) of the Act, “gender identity” is “person’s innermost and individual sense of self as male, female or a blend of both or neither that can correspond or not to the sex assigned at birth,”. This definition is also based on the same belief as used by Commissioner for Human rights for the Council of Europe as well as Yogyakarta Principles but repugnant to the Islamic principles.

Section 2(n) of the law, a “transgender person” as someone who is: (i) “Intersex” (khusra) with a “mixture of male and female genital features or congenital ambiguities”; or (ii) “eunuch assigned male at birth, but undergoes genital excision or castration”; or (iii) a “transgender man, transgender woman, Khawajasira or any person whose gender identity or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth.”

Therefore the first objection on this Act can be “poor definition of terms”. Including intersex people in the category of “transgender” is inaccurate characterization due to which, the act does not address the specific legal protections required for intersex community and is against the very objective of this whole exercise. Although, both transgender and intersex people suffer from some kind of “disorder”: for transgender it is “psychological”, whereas for intersex, it is “physical and biological”. Intersex should be allowed to go for medically essential treatment but with consent. However, changing a gender identity for psychological reasons should not be and cannot be legalized from Islamic point of view. However, they must be given psychotherapies and any other treatment to bring them back to their actual identity. Legalising it, will lead to the same immorality, the people of Sodom had. The act that was enacted for addressing the discrimination against a banished community can lead to decadence in the society.

Moreover, act does not address some of the most serious human rights violations faced by intersex people. For instance, it is silent on medically unnecessary and life threatening hormonal treatments given to people born with atypical sex characteristics to conform their appearance according to stereotypical gender binaries. These surgical and hormonal procedures cause mental and physical pain leading to lifelong depression . The act could have regarded such interventions to child abuse and could have safeguarded these people from such interventions. The act should incorporate the protections suggested by various forums for intersex rights. Due to inherent shortcomings in the law, even the intersex community has reservations about its effectiveness for their community’s well-being. In a recent interview to Voice of America, Khawajasira rights activist Almas Bobby expressed her concerns and said that, “that this law protects those “who want to change their sex only because of a personal preference.”

The act in short needs immediate review by someone who is well versed with the medical differences between intersex and transgender as well as Islamic injunctions in this regard. . The first and foremost task in this regard is to remove the fusion of two entirely different communities i.e. intersex and transgender. The rest of the clause will have to be rephrased accordingly. The emphasis of this act should have been upgrading the social status of Khawajasira (intersex) rather than normalizing something that is in sheer contrast of our religious values.

The writer is a public policy practioner and has special interest in social issues.