Rights of Trans-genders in Islam and Pakistan

 Author: Fazila Nawaz

2          ABSTRACT 

Everybody is equally entitled to human rights without discrimination to whatever, sex orientation, nationality, gender identity or else an individual have. Whether these rights are civil or political rights or economic, social and cultural rights are all indivisible, universal, interrelated and interdependent. The transgender community is oppressed in almost every society. They are treated unequally and everywhere they face discrimination. I have done comprehensive study on trans-genders right of equality internationally and nationally in this project via the reference of case laws.

3          INTRODUCTION

In 2020, a national report figured out murder of 33 trans-genders shot or killed by violent means. An 18 years old transgender was raped by nine men in Peshawar. A transgender was shot when she couldn’t find change for Rs 1000 note. Such heart breaking news are always broadcast on news channels, yet our legal system is failed to hinder these offences.[1]

It is duty of the state to protect and preserve fundamental rights, such as non-discrimination and equal treatment for every citizen. Law of any state can be tested by observing the condition of vulnerable groups of that society, thus despite having the principle of equality for every citizen, it is necessary to make special laws to protect the fundamental rights of vulnerable.

It is the natural right of every individual regardless of his sex to be treated equally before the law and is entitled to equal protection of law. That means that there shouldn’t be denial of any special privilege by reason of birth, creed or the like and also equal subjection of all the individuals and classes to the ordinary law of the land. In order to provide the promised equal rights a state must guarantee similarity of treatment to all the citizens and so to the transgender community.  [2]

Around the world the preservation and protection of trans-genders fundamental rights is started getting recognition in different jurisdictions. However, still this community faces rejection, discrimination and inequality from various institutions of the society. Transgender people are often at a high risk of economic and social exclusion.

 

4          GENERAL CONCEPTS

4.1         Sex and Gender[3]

Sex denotes the biological aspects of an individual that is determined by their anatomy, which is produced by their chromosomes, hormones and their interaction. Typically, the two dominant sex representations are male and female, yet there are others who can’t be characterized as male or female due to their unique physical and physiological features. These individuals are referred as trans-genders, no-binary or gender-nonconforming.

However, gender is a social created spectrum that refers to socially constructed roles, behaviors, expressions and identities of sex.

Gender identity is a person individual innate sense of male, female or both regardless of the sex assigned at birth.” This innate self identity  is not visible to others. [4]

4.2         Transgender

Pakistani law defines a transgender person with a mixed male or female genitals or congenital ambiguities or someone gone under genital excision or castration or someone who's gender identity not match with the societal norms and expectations based on the sex they were assigned at the time of their birth.[5]

5          TRANSGENDER RIGHTS IN ISLAM

The existence of transgender is expressed in Quran in the following words;

“ Dominion of heavens and earth belongs to Allah;  what he wills he creates. He gives to whom wills female and He gives to whom He will males. He makes the females or males or render or whom he wills barren. Indeed competent and He knows.”(42:49:50)

The matter of trans-genders is never discussed separately in Quran neither given a distinction as a different gender or specie of human beings. Thus, it is considered that they have been given the same rights as given to male or female. They have the right to be treated equally, without discrimination and have all the enjoyments of life as given to male or female. However, the only contradiction comes between trans-gender rights and Islamic injections is the same sex marriages. Referencing the example of people of Prophet Luth, Allah strictly prohibits homosexual relationships. Hence, same sex marriages is an offence in every Islamic country.  The only possible way for this problems is suggest by mufti of Al Azhar University, Al Tantawi. He permits to perform an operations that change the  man into women or reverse. As long as a reliable doctor concludes that there are innate causes in the body itself, indicating a buried female nature or a covered male nature.” He supports his fatwa through the hadith that “the messenger of God sent a physician to Abu Ibn Kacb.  Vein was cut by physician and was burnt.” Muslim transgender activists believe this a feasible way to solve the problems related to their marital rights. Hence, with the solution of this problem there is nothing left in Islam that contradicts with the trans-gender rights, they are as equal as men and women in Islamic law. [6]

6          TRANSGENDER RIGHTS IN PAKISTAN

The existence of trans-genders is considered unnatural and are oppressed by the Pakistani society. Almost every fundamental right of the transgender is failed to be ensured by the government. Though laws promise fundamental rights to every citizen but practically their fulfilment is defective. Thereby, the transgender community in Pakistan faces sex discrimination, deprivation from health, educational, employment and other facilities. Even, studies showed that the transgender individuals in Pakistan are becoming victims of HIV. As they are being sexually misused by police and are sexually exploited.

6.1         Transgender Rights under Constitution

Under 25 Article of the constitution it is clearly, stated that “all the citizens are equal before law and are entitled to equal protection of law. There shall be no discrimination on the basis of sex.” Other than this, in explaining fundamental rights the constitution has used the phrase “Every citizen” to mention citizen of every gender legally capable in acquiring the fundamental rights. Thus, this applies to the trans-genders too.

Constitution promise fundamental rights to the trans-genders in every aspect of life, excluding the martial rights. On this matter, Pakistan follows the Islamic law which prohibits the same sex marriages. The law says “ voluntary carnal intercourse against the natures order with any woman, man or animal, will be punished life imprisonment, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine. 

However, through the court precedents it is believed that on this matter the Pakistani law soon adopt the fatwa’s of modern jurists who suggests operative transsexual process to eliminate this hurdle in providing the fundamental rights to the trans-genders.

6.2         Historical Judgments of Supreme Court and High Court on Transgender

Pakistani courts have played a significant role in regulating the fundamental rights of the trans-genders. Courts recognized the protection and preservation of fundamental rights of the trans-genders even before this issue was taken to the parliament. The Court decision made in the following cases have reshaped the trans-gender rights in Pakistani law.

6.2.1        Dr Aslam Khaki v SSP Rawalpindi

The Supreme Court of Pakistan ruled that the transvestites are entitled to equal benefit and protection of the law. It directed the government to take steps to protect transgender people from discrimination and harassment. [7]

 The Supreme Court ordered complete recognition of the transgender community, with order to add provision of free medical, also educational facilities, microcredit schemes and job quotas for transgender people in every government department. [8]

Then in 2017 High Court order inclusion of trans-persons in national census. 

6.3         Present Position of Pakistan

Pakistan enacted Trans-person Protection Act in 2018. This Act allows the citizens to self-identify their gender, bans discrimination in public places, give them right to have driving license, passport and other official documents using their chosen identities. There is much more that has been promised in this Act, however, unless the application of law isn’t applied this community will suffer in the same way as in the past. Thus, now Pakistan needs to sincerely apply this laws throughout the country.[9]

7          INTERNATIONAL RECOGANITION OF TRANSGENDER RIGHTS

The United Nation Charter includes right to equality and non-discrimination as the main principles of human rights law. The opening words of Universal Declaration of Human rights defend these rights as “all human beings are born free and equal in dignity and rights” and Article 19 oblige every state “to protect everyone’s right to express themselves freely.”   The International Covenant on Civil and Political rights states that “laws against homosexuality are a violation of human rights.”

On June 2011, United Nations Human Right Council adopted a wide ranging resolution on human rights, sexual orientation and gender identity. This resolution expressed grave concern at violence and discrimination against sexual orientation and gender identity, and measure needs to address them. Accordingly, the member states of United Nations have adopted special laws to secure human rights law related to trans-genders in various ranges. [10]

7.1         Transgender Rights in USA

In 2014 when Obama administration legally banned gender identity based discrimination via signing the Executive Order 13672. Before this the trans-gender non-discrimination and equality rights were treated by the courts. They were several cases regarding question of sex or name on documents, protection against discrimination and equal protection issues. After the Executive order the transgender rights were greatly improved in USA. Yet, the policies introduced by Trump administration has narrowed down the definition of sex as a biologically determine at birth. This has arose many legal questions regarding sex discrimination in USA courts. However, Supreme Court decision in the following case is considered an influential case as a Statutory Interpretation to protect the civil rights of trans-genders in future as well.[11]

7.1.1        Bostock v. Clayton County, 2020

Plaintiff Gerald Bostock was fired after joining a gay softball league. Before this he also experienced sexual orientation discrimination at his work pace. Based on a precedent the lower court held that Title VII of Civil Rights Act doesn’t cover sex discrimination. However, the Supreme Court overruled the decision and held that discrimination on the basis of sexual orientation or gender identity is also a discrimination.[12]

7.2          Transgender Rights in United Kingdom

7.2.1        Christine Goodwin v. the United Kingdom

Christine Goodwin, an operative male to female transsexual claimed in the European Court of Human Rights that she faced sexual harassment, following her gender re-assignment. The Court found violation of right to respect for private and family life and right to marry and to found family life. Hence, the court made the decision against the defendant.[13]

The loss of the United Kingdom government enforced it to introduce Gender Recognition Act 2004. It gives right to marriage to the operative transsexuals. This Act is highly criticized as it lags behind international human right standards Beside this Act, there is Sex discrimination Act 1975 that prohibits all sort of discrimination based on anatomical sex. [14]

 

7.2.2        Transgender Rights in India

The legislation passed in 2019 in India has given the rights to the transgender community to have constitutional right to register themselves under a third gender. India has effective laws for transgender, not only at federal level but also at state level. For instance, Transgender Welfare Policy, Free life and Medical Insurance, Transgender Welfare Board, all these laws are adopted by different states of India. Yet, despite that there existence is considered unnatural socially that creates hurdles for them to express their identity and to live freely.[15]

8          CONCLUSION

Every society in the world considered trans-genders as an unnatural beings to exist. Their rights are violated everywhere and they are deprived of their fundamental rights. If law has recognized them then that is the old mindset that treats them brutality. The states needs to regulate these laws and ensure the application of existing laws.