Pakistan's Transgender Legislation in the Line of Fire

Bindya Rana, a Karachi-based transgender activist and founder and president of Gender Interactive Alliance (GIA), and Shahzadi Rai, a Karachi-based transgender person, believe that the debate over the law protecting the rights of transgender persons is problematic. Credit: Zofeen Ebrahim/IPS
Bindya Rana, a Karachi-based transgender activist and founder and president of Gender Interactive Alliance (GIA), and Shahzadi Rai, a Karachi-based transgender person, believe that the debate over the law protecting the rights of transgender persons is problematic. Credit: Zofeen Ebrahim/IPS
  • by Zofeen Ebrahim (karachi)
  • Inter Press Service

“This is an imposed, imported, anti-Islam, anti-Quran legislation,” said Senator Mushtaq Ahmed, a Pakistani politician belonging to the Jamaat-e-Islami (JI), spearheading the campaign. “The West is hitting at the two strongest institutions of the Muslim Ummah – the family and marriage; they want to weaken us,” he told IPS from Peshawar, adding that this will “open the road” for homosexuality and same-sex marriage. 

According to Ahmed, for the last four years, the government, with support from non-governmental organizations, was “shamelessly pushing the agenda of Europe and America,” terming it “cultural terrorism.”

Other politicians have also joined in voicing their concerns. For instance, PTI senator, Mohsin Aziz, said transgender people were homosexuals, and “Qaum-e Loot” referred to homosexuality introduced by the people of Sodom. “The longer we take in making amends, the longer the wrath of God will be upon us,” he added. He is among those who have recently presented amendments to the law.

“Using religion to stoke people’s sentiments sets a very dangerous precedence,” warned Shahzadi Rai, a Karachi-based transgender person. “Spare us; our community cannot fight back.” 

Rai asked that the issue not be seen through the “prism of religion,” adding, “even we do not accept homosexuality.”

Physician Dr Sana Yasir, who has a special interest in gender variance and bodily diversity and offers gender-affirming healthcare services, said there was no mention of homosexuality in the Act.

“The right-wing politicians need such issues to keep their politics alive,” said Anis Haroon, commissioner for the National Commission for Human Rights, which was part of consultations on the Act and fully supported it.

Ahmed had presented certain amendments to the Act last year, and earlier this month, he introduced a brand-new bill for the protection of khunsa, an Arabic word he said was for people “born with birth defects in the genitalia.” If passed, the Act will apply to the entire country and come into force immediately. 

In the proposed bill, khunsa is defined as a person who has a “mixture of male and female genital features or congenital ambiguities.” The person will have the right to register as a male or female based on certification from a medical board.

“I studied the old law for a good two years after it was enacted; held discussions with many jurists, even international ones, medical doctors, religious scholars. Based on the information gathered, I came up with amendments to the 2018 law,” Ahmed said, defending his stance and explaining why it took four years to oppose a law passed by a two-thirds majority in the Senate and the Parliament. He has also filed a petition in the Federal Shariat Court against the 2018 Act.

The right-wing Jamiat Ulema Islam (JUI-Fazl) and parliamentarians belonging to the Pakistan Tehreek-e-Insaf (PTI) have also voiced their concern and opposed the 2018 act. 

“Allah has just mentioned sons and daughters in the Quran; there is no mention of another gender,” said PTI’s senator, Fauzia Arshad, speaking to IPS. He has also presented amendments to the Senate’s standing committee on human rights.

The country’s top religious advisory body, the Council of Islamic Ideology (CII), has also termed it unIslamic law.

“We respect the rights of the transgenders given in the 2018 Act, but when it transgresses beyond biology, and psychology and sociology come into play, we have reservations,” said Dr Qibla Ayaz, chairman of the Council of Islamic Ideology, talking to IPS from Islamabad. He also said the council was never approached when the bill was debated.   

The law, instead of defining gender, has defined gender identity: A 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. It also refers to gender expression: A person’s presentation of their gender identity and/or the one others perceive.

 JI, meanwhile, has defined gender as a “person’s expression as per his or her sex which is not different than the sex assigned to him or her at the time of birth or as per the advice of a medical board.”

“We do not believe in self-perceived gender identity of a person and are asking for a medical board to be constituted to ascertain that,” said Ahmed.

Arshad endorsed this: “The sex of a person is determined from where the person urinates and should be determined by a medical board.”

“Self-perception of who you think you want to be, and not what you are born as is not in the Quran.”

“CII has some reservations about the self-perceived identity,” said Ayaz.

To rule out “real from fake” transgender people, Ahmed’s bill has recommended constituting a gender reassignment medical board in every district, which would include a professor doctor, a male and a female general surgeon, a psychologist, and a chief medical officer. 

“Any sex reassignment surgery to change the genitalia will be prohibited if the person is diagnosed with a psychological disorder or gender dysphoria,” he said. Arshad agreed with this view.

“A medical board can help people figure out their gender identity by offering them personality tests and blood works. They can help decrease the intensity of gender dysphoria by offering non-medical and medical interventions,” said Yasir. 

But the board cannot reject someone's “experienced gender,” she asserted.

Yasir added there was no mention of a geneticist, a psychiatrist, or those trained in transgender health on the board.

Healthcare professionals argue that constituting medical boards in Pakistan’s 160 districts is nearly impossible. The complex issue requires genetic testing (from abroad), which is expensive for a resource-stretched country like Pakistan, and meticulous diagnosis by scarce experts. 

The trans community has rejected the option of the constitution of a medical board outright. 

“We will never allow anyone to examine us,” said Bindya Rana, a Karachi-based transgender activist and founder and president of Gender Interactive Alliance (GIA). “We know, who we are, just like the men and women in this country know who they are!” 

If this debate has done one thing, it is to validate and increase transphobia.

“Harassment, discrimination, and violence have increased due to the negative propaganda led by Jamat-e-Islami,” said Reem Sharif, a trans activist based in Islamabad.

“A week ago, one transgender was murdered. The alleged murderer is behind bars, but during interrogation, he told the police that he was on jihad as killing transgenders would take him straight to heaven. He is sure he will be released and will finish off the job,” said Rai.

She also recalled the horrific attack on three well-known transwomen in Khyber Pakhtunkhwa’s Swabi two weeks back. “They received several bullets, but fortunately, all survived,” she said. The attack spread panic and fear among the community. Rai said the transphobia was “contained, but now it is out in the open.”

“There is a definite backlash,” agreed Lahore-based Moon Chaudhary. “Ten days ago, in Lahore, a few trans persons were publicly harassed at a posh locality. They were forcefully disrobed, asked about their gender, and then raped,” she said.

According to Mughal, the “more visible trans activists” like her, are increasingly feeling vulnerable. “Bullying is going on, and people are openly threatening. She gets scores of text messages from unknown numbers referring to her as a “man,” causing “mental torment.”

Rai said she feared for her life since she was actively participating in defending the law on various TV channels, and participating in debates organized by clerics. “I’m worried and have told my flatmates to be vigilant and take extra precautions in letting in their friends.” 

Transgender activists are also fighting on another front – cyberspace. 

“I am being misgendered on national television; then the same clips are shared on social media, which go viral. I am accused of being a man and feigning as a woman,” said Mughal. She said some are provoking people to go on a jihad against them and setting a “dangerous precedent.”

“I thought I was strong and would be able to handle online abuse, but it is taking a toll and affecting my mental health,” Rai admitted. For instance, of the 900 comments on a video clip on social media, 600 were abusive. There were some that were downright violent in nature, calling for her murder or burning her to death. “My photos are being circulated with vulgar messages attached,” she added.

Although Rana admitted the campaign against the 2018 law has brought “irreparable damage” to the transgender cause, she is confident the newly-presented bill by JI was just to create a storm in a teacup and will not see the light of day. 

“All that we worked for, for years, has come to naught,” she lamented. While the law prohibited discrimination against transgender persons seeking education, healthcare, employment, or trade, Rana said, “we never benefitted on any score” except the right to change the name and gender on the national identity card, the driving license, and the passport. For us, even that was a big win,” she said. About 28,000 transgender persons had their gender corrected. But now, even that right is in danger. 

Ahmed said his struggle would continue. “If the khunsa bill finds no takers, we will take it to the Supreme Court of Pakistan and start street protests,” he warned, adding: “It’s a ticking time bomb!” 

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