The Federal Shariat Court (FSC) on Friday issued its ruling on the Transgender Act, 2018, declaring Sections 2(f) and (n), 3, and 7 against Islamic teachings, thereby barring individuals from changing their gender of their own will.
In the ruling, which had been reserved on May 11 by a two-member bench comprising Acting Chief Justice Syed Muhammad Anwar and Justice Khadim Hussain, the FSC said Islamic teachings do not allow individuals to change their gender at their own will, adding that an individual’s gender identity cannot be altered from that assigned at birth. In this regard, it said, Section 2(f) of the act—designating gender identity as a person’s individual sense of self regardless of the sex they were assigned at birth—is against Islamic teachings. Section 2(n)(iii) had declared the definition of a transgender individual as anyone whose gender identity and/or gender expressions differs from the social norms and cultural expectations based on the sex they were assigned at birth. The remaining parts of Section 2 were declared as compliant with shariah.
Stating that gender refers to a person’s biological sex, the court started that shariah does not permit a person to undergo gender reassignment surgery. Specifically declaring Section 7 of the Act—which granted inheritance rights on the basis of gender—as contrary to Islamic teachings, it emphasized that inheritance should strictly align with the sex a person is assigned at birth.
Section 3 was also set aside by the FSC. The impugned section called for the recognition of identity of a transgender person on the basis of their self-perceived gender identity and had allowed for any adult Pakistani to secure identity documents based on self-identification. The court ruled that gender determination should be based on dominant physical characteristics, rather than personal feelings, adding that if male characteristics predominate, the individual shall be considered male. The court also highlighted that practices such as prayer, fasting, and Hajj are gender-based.
The court also declared it illegal for individuals, regardless of their gender, to identify themselves as Khawajasira if they deviate from their biological sex. It stated that Khawajasira cannot change their gender or self-identify as male or female. Noting that the government was bound to provide medical, educational, and financial facilities to Khawajasira and ensure its rights as per the Constitution, the ruling stated that Islam recognizes the concept of Khawajasira.
The petitions against the Transgender Act 2018 were filed by Jamaat-e-Islami Senator Mushtaq Ahmed, the Jamiat Ulema-e-Islam (JUI), journalist Orya Maqbool Jan, and others.