The United Nations Human Rights Office of the High Commissioner (OHCHR) is an agency responsible for promoting and protecting human rights globally and as a member, Pakistan is expected to uphold and promote the principles and values of human rights as outlined by the OHCHR and the United Nations. The OHCHR defines “transgender people as those whose gender identity does not match the sex they were assigned at birth. Transgender people may choose to transition, which may involve medical, social, or legal changes. Transgender people should be respected for their gender identity and treated with dignity and respect.” The guidelines emphasize that transgender people are treated fairly and with respect, using the person’s preferred name and pronouns, avoiding asking about a person’s sex assigned at birth, respecting a person’s privacy and confidentiality, not making assumptions about a person’s gender identity based on their appearance, not making jokes or comments about transgender people and reporting any incidents of discrimination or violence against transgender people to the appropriate authorities. These are indeed important steps in ensuring that transgender people are treated fairly and with respect.
Contrary to these guidelines, the Federal Sharia Court recently decided that a person cannot change their gender based on “innermost feeling” or “self-perceived identity” and must conform to the biological sex allocated to them at birth. This is an incredible interpretation as humans must deal with sentiments, ideas, values, conventions, motivations, inner impulses, choices, and preferences rather than their physical looks. All religions, without exception, preach the importance of both the body and the sentiments and inner motivations for human well-being. The physical components are significant, yet they may have little to do with the purpose of human creations which anchors on their beliefs, conceptions, and practices, their interactions with the Almighty and within communities and across nations. As a result, according to various references, Islam emphasizes the importance of one’s intentions, feelings, and motivations, sincerity of faith and good character, and acts of worship, inner devotion, and righteousness as far more important to lead a purposeful, productive, and useful life against bodily outlook only.
A true Muslim is someone who believes in Allah’s oneness, Muhammad’s finality as the final messenger, and the Quran’s fundamental principles and who upholds His commandments, treats others with kindness, justice, honesty, and compassion; upholds high moral values such as honesty, humility, forgiveness, and respect for others; and seeks knowledge and understanding of the Quran, Hadith, and Islamic teachings. In Christianity, which values both the body and the soul, the body is solely the Holy Spirit’s temple, while faith, repentance, and love are emphasized. In Hinduism, the body is an impermanent vessel for the soul, and its health is essential for spiritual development. However, a person’s thoughts, intentions, and goals are emphasized. As the body is impermanent and subject to suffering, Buddhism prioritizes the mind over the body. Even though every religion is founded on beliefs and faith, the impugned judgment based the determination of a transgender person’s gender solely on his physical appearance and not on his inner feelings or sexual orientation, which manifests as the baby grows into adulthood and not birth.
Sadly, in Pakistan, the sex of a baby is typically determined at birth based on physical examination and observation of primary sexual characteristics, typically by illiterate midwives or, if the baby is born in a hospital, by a nurse or a doctor without undergoing a more thorough medical evaluation. This archaic method of determining a baby’s gender is contrary to the standard operating procedure observed in the majority of countries, which necessitates the use of various administrative, medical, and social tools. And even if determined, the individual is permitted, upon reaching adulthood, to have his sex reassigned based on his deeply felt sense of his gender, which may not always correspond with the sex assigned at birth, as gender identity is a deeply personal and subjective experience that may not be apparent at birth.
Argentina’s 2012 Gender Identity Law recognises the right to self-determination of gender identity and permits individuals to alter their legal gender identity without medical intervention or judicial approval. In 2014, Denmark enacted a law emphasizing self-determination that permits individuals to alter their legal gender without surgery or hormone therapy. Germany has permitted legal gender recognition since 1980, and a 2018 amendment removed previous requirements of medical interventions, sterilization, or other medical procedures and now permits individuals to alter their legal gender through a process of self-determination. Canada has taken measures to recognise and safeguard the rights of transgender people by enacting legislation to simplify the process of legal gender recognition, emphasizing self-identification without the need for medical interventions.
In 2004, the United Kingdom enacted the Gender Recognition Act, which allows individuals to petition for legal recognition of their acquired gender with the assistance of medical documentation and panel approval.
There are two choices; a person who has been assigned sexual characteristics by an illiterate midwife which are not at par with the general differentiation of sex assignment according to his inner feelings would be forced to live an unhappy, conflicting and tortuous life when he reached to adulthood and capable of taking conscious decisions may be allowed to determine his sexual orientation or sexual identification and carry it forward happily. After all, the distinction between adults and minors in terms of legal responsibility is based on the concept of maturity and the ability to understand the consequences of one’s actions due to cognitive abilities, including reasoning, judgment, and decision-making skills and legal individuals are considered capable of entering into contracts, making decisions about medical treatments, and assuming other legal responsibilities compared to when he is minor and under care and guidance or parents and legal having restrictions on certain activities, and age-specific laws. Why not trust an individual when he desires sex reassigned based on his deeply felt sense of his gender.
Multiple studies have demonstrated that transgender people born with conflicting spirits and bodies may experience a disconnection between their gender identity and their physical body. They may have an inner perception or feeling of femininity despite being born as men or vice versa. If not handled carefully, they can face gender dysphoria, which is distress or discomfort caused by the mismatch between a person’s gender identity and assigned sex. Occasionally, their overwhelming emotions are so intense that, if not treated, they may end up hurting themselves or becoming violent towards family members. When dealing with such circumstances and contending for recognition of their gender based on their innermost feelings, the concept of inheritance may not even be in the farthest reaches of their minds and therefore should not become the basis to deny them their inalienable right of self determination of their gender title.
The impugned judgment struck down important sections of the Transgender Persons (Protection of Rights) Act,2O18 which were in fact the soul and spirit of the Act and without them the law has been reduced to nothingness. The struck down section 3 declared that transgender persons shall have a right to be recognized as per his or her self-perceived gender identity. The struck down section 7 pertained to Right to Inheritance which ordained that there shall be no discrimination against Transgender persons in acquiring the rightful share of property under the law of inheritance. It declared that the share of inheritance for transgender male, will be that of man; For transgender Female, the share of inheritance will be that of woman; the share of transgender who has both male and female or ambiguous characteristics, such as their state is difficult to determine upon birth, upon reaching the age of 18 years, if the person’s self-perceived gender identity is Transgender male, the share of inheritance will be that of man; upon reaching the age of 18 years, if the person’s self perceived gender identity is Transgender Female, the share of inheritance will be that of woman; upon reaching the age of 18 years, if the person’s self-perceived gender identity is neither Transgender men nor Transgender Women, the share of inheritance will be an average of the two separate distributions for a man and a woman; and below the age of eighteen years, the gender as determined by a medical officer on the basis of predominant male or female features.
The striking down of these provisions in fact have refused the very existence of transgenders who are either born perfect male or female but their gender identity does not match the sex they were assigned at birth. It is also interesting to observe that the vast majority of applicants asked NADRA to change their gender identity from male to female, while very few requested the opposite. Therefore, men sacrificed a substantial portion of their inheritance by choosing to be female; in such instances, they received no monetary benefit and neither their parents nor their siblings suffered any loss; rather, they benefited from them. There were very few females who chose male identity; consequently, there was no net loss to the parents or siblings and, most importantly, there was no burden on the state; all the more reason not to strangle a law that has gained much more positive traction for the country in terms of protecting the rights of the marginalized community.
The NADRA report, which was used as the basis for a petition and the repeal of an excellent law, may have been accepted at face value without an in-depth analysis and without realizing how 30,000 applications out of 250 million people could pose a threat to our security and the sanctity of our religious and moral values when it represents an infinitesimally small portion of the population. Is it the most significant problem facing the nation? Why are we and our faith so fragile that heaven will collapse if certain rights are granted to the transgender community? After all they are Allah’s creations just as we are, but we have reduced them to subhuman status and have pushed them to the lowest rung of the society. Transgender individuals have the same rights and responsibilities as all other citizens. If a person has dysphagia, he should be alleviated of the predicament he faces. If our medical system and courts were efficient and dispensing justice fairly and for free to everyone, and if there was an automated system that any transgender experiencing dysphoria could use to complete all administrative and legal requirements within two days, then this type of stringent requirement might have made sense. Putting transgender people, who are typically uneducated, discriminated against, and tormented, into a system that is both sluggish and unforgiving is tantamount to denying them their unalienable right to determine their own sexual orientation.
The physical appearance of transgender individuals is irrelevant. The transgender male when born is a perfect male but has the personality and spirit of a woman, while the transgender female has a perfect female body but the personality and spirit of a man. Therefore, since this is a case of pure inner feeling and not a physical outlook or condition and appearance of his or her gentiles, therefore it may be left on them to self-determination their gender upon reaching adulthood without requiring medical tests, forming a medical board, or other such burdensome restrictions that will further marginalized this already marginalized segment of the population.