Federal Shariat Court Declares Transgender Protection Act Unconstitutional

About a year and a half and over a dozen petitions later, the Federal Shariat Court (FSC) finally decided on the conformity of the Transgender Protection Act of 2018 with the injunctions of Islam. While the details of the initial issue have previously been discussed, we shall see what the court has to say.

The Problem of Self-Perception

The court has spoken in great detail about the clause of the act, which adds those who perceive their gender as different from their biological sex to the definition of a transgender person. The court opined that Islam does not hold both genders equal, and it has specific provisions—be they rights or limitations—for either gender that cannot be overstepped. It is, thus, unreasonable that a person may change their gender according to their wishes simply because gender is a “social construct”. A person’s gender must be the same as their biological sex assigned at birth.

The ability to reassign their gender through official identity documents, the court said, would also increase the occurrence of harassment, molestation, and other offenses among women where they are meant to remain segregated from men. Any man may reassign his gender and roam freely within gatherings meant to be limited to women, and thus, women would be left vulnerable.

The Problem of Eunuchs

The court did well to identify the two different kinds of eunuchs, a difference that, as the court pointed out, the act failed to make. A eunuch may have been castrated for a medical reason or may have done so by choice through a gender reassignment surgery. The FSC recognized the former and ordered that an explanation should be added to the act to clarify this.

They also ordered that the name “Khwajasira” be removed from within the clause of self-perceived genders and added to the eunuch clause, as that is what it originally meant.

The Problem of Inheritance

Perhaps the most controversial part of the act was its provisions on inheritance rights for transgenders. Those transgenders identifying with whatever gender they were more related to would receive the share for that gender. However, this also included self-perceived gender. So, a woman could change her gender in NADRA and receive twice the share because she would be receiving a man’s share. The Islamic perspective says that the gender that is more dominant in the transgender person would show the share the person would receive.

Furthermore, in its initial sections, the act mentions that these persons’ shares would also depend upon the fiqh they followed. This is not mentioned in the case of transgenders, whose dominant traits are difficult to identify. In this case, there are two perspectives. Abu Hanifa says that the person will receive the share of whichever gender would, in this case, receive the lesser share. On the other hand, Abu Yusuf takes an average of the share of a man and a woman in the case. The act only makes mention of Abu Yusuf’s perspective.

Overall, the decision is a welcome one. Regardless of its Religious implications, the simple fact that the act was unconstitutional was enough reason for this to concern any reasonable citizen. The court has ordered the government to amend the act within 6 months.

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