ISLAMABAD: The Federal Shariah Court on September 20 conducted a hearing of the case filed by a Jamaat-e-Islami Senator against the Transgender Persons (Protection of Rights) Act, 2018 seeking exclusion of exclusion of the much debated clause about reassignment surgeries from the act.
During hearing of the case, a large number of transgender persons were present in the courtroom. They pleaded with the court to get assistance from gender experts before deciding on the case.
Justice Anwar said that the real issue is about the protection of rights. He said, “We aim to protect the community and ensure their rights.” Turning a blind eye won’t solve the problem, Justice Anwar said.
The court accepted the applications of Jamaat-e-Islami (JI) Senator Mushtaq Ahmed against the act and transgender activist Almas Boby to become party to the case. It also asked them to submit written replies at the time of the next hearing into the case. The court adjourned the hearing of the case for an indefinite time.
JI Senator Mushtaq Ahmed tables Transgender Persons (Amendment) Bill 2021
The Senate Standing Committee on Human Rights on September 5 also discussed the Bill titled “The Transgender Persons (Amendment) Bill 2021” introduced by Jamat-e-Islami’s Senator Mushtaq Ahmed.
Mushtaq Ahmed apprised the Committee that the Constitution of Pakistan clearly states that no law shall be enforced which is repugnant to injunctions of Islam and claimed that the Transgender bill was passed without taking the prior opinion of the Islamic Ideology Council.
He further added that the terms ‘Transgender’ and Intersex’ are altogether different from each other and the law is supposed to cater for the needs of Intersex persons, not transgender.
He also proposed the establishment of a medical board to confirm the sexuality of transgenders.
Senator Rabiya Javeri Agha told the senate body that the practice of the medical board has failed in India and it is also against the right of privacy which is considered to be the fundamental right of the citizens of the country.
The Chair decided to take the opinion of the Islamic Ideology Council on the matter and invited the movers of the Bill to present their stance in the next meeting.
It is pertinent to mention that Senator Mushtaq Ahmed on November 15, 2021, presented a bill in the Senate, seeking an amendment to the Transgender Persons (Protection of Rights) Act, 2018.
Amendment Proposes Medical Boards To Determine Gender Identity
Currently, Section 3 (2) of the Act states that “a person recognized as transgender… shall have a right to get himself or herself registered as per self-perceived gender identity with all government departments including, but not limited to NADRA”.
The amendment seeks the creation of a medical board that would recommend whether a person’s gender should change, instead of them seeking a reassignment on the basis of their personal identity.
Senator Mushtaq Ahmed opposed the provision in the amendment bill and demanded the formation of a gender reassignment board to suggest to NADRA whether a person’s gender should be reassigned.
The amendment bill recommends the formation of such boards at the district level after the approval of the prime minister and provincial chief ministers, with each board comprising a professor doctor, a psychologist, a male general surgeon, a female general surgeon, and a chief medical officer.
Amendment Seeks Exclusion of Gender Reassignment Surgeries
The proposed law seeks a prohibition of gender reassignment surgeries or any other treatment to change genital features on the basis of “any psychological disorder or gender dysphoria”. It also states that the law in its present form could lead to the “legalization of homosexual marriages”.
While addressing in parliament house, Senator Mushtaq said, the law allowing change of sex is the first step toward same-gender marriages, adding that nobody could say that as he looks like a female hence he should be registered as female.
The Transgender Persons (Amendment) Bill 2021, when presented in the parliament was opposed by the then Human Rights Minister Shireen Mazari, she said the proposed amendment was aimed at “victimizing” transgender persons as the current law gave them the right to identity.
Later, the then Chairman Senate referred the bill to the Standing Committee on Human Rights for further debate.
Trans Community Divided Over Proposed Medical Tests:
Transgender Community is divided into groups over the demand of the medical test to identify the gender of the trans person to avoid the registration of males as transgender in the NADRA records.
Almas Bobi – transgender rights activist – while talking with “The Reporters” said, a large number of persons pretending to themselves or registering themselves as transgender are male.
When asked why men will prefer to register themselves as transgender, she said, such males are promoting gay culture, and after getting registered as transgender they will legally authorize to carry on such activities while some of them are getting funding and donation on these bases.
Almas endorses the demand for the medical test to identify the gender and said, it will also secure the rights of real transgender persons.
Last year, Jamat-e-Islami’s Senator Mushtaq Ahmed raised a question in the Parliament House how many persons have changed their gender from 2018 to June 2021?
The Ministry of Interior, in response to the question of Mushtaq Ahmed, submitted in the Parliament that 28500 applications were received to NADRA for gender change in the said period of time.
16500 applications were received to change their gender from male to female while 12000 persons have requested to change their gender from female to male.
Moreover, 9 applications were received to change their gender from male to transgender. Interestingly, 21 transgenders requested to change their gender to male and 9 have requested to change it to female.
Transgender Persons Act Gives Identity To the Community: Bubbli
Transgender Rights Activist and Executive Director of Wajood Organization Bubbli said the Pakistan Transgender Persons (Protection of Rights) Act has given an identity to the community. It has given hope to community members that only dance and sex work will no more option for them.
To a question regarding the implementation of the act, she added, it will take time, registration of the gender X has been started by the NADRA, similarly, schools are established in different districts of Punjab and a protection center for the transgender is also established in Islamabad.
Bubbli added some factors are making negative propaganda against this landmark legislation for their promotions and motives. All stakeholders including Islamic Ideology Council were taken in confidence in the finalization of this act.
To a question regarding the allegation of males getting registered as transgender with NADRA, she added, why a male in the male dominating society will prefer to convert his gender from male to gender X. Neither the government has announced any special package nor is any other kind of relief provided to the transgenders, then why a male will prefer to be transgender.
Majority of the Persons Registered With NADRA As Trans Are Males
In response to an information request made under the Right of Access to information Act commonly known as RTI Act, filed by this scribe, Islamic Ideology Council has provided copies of the research articles, correspondence and recommendations made with the federal government regarding the Pakistan Transgender Persons (Protection of Rights) Act.
Documents shared by the Islamic Ideology Council state, the majority of the persons registered as Trans with the NADRA are male and a number of them are also married and having children per the NADRA record.
Council has recommended that medical tests should be conducted to identify the gender of a person interested to get registered as Trans.
Documents further state punishment regarding any crime or violence against a transgender person is defined in the act but no punishment for the crime or violence committed by the transgender is defined.
As per the official document share by the NADRA in 2020 in response to an information request (RTI Request) filed by “The Reporters”, out of a total of 2,645 eunuchs, 1,709 are male, 766 females and 170 Khunsa-e-Mushkil whereas the provisional summary of the results of the last Population and Housing Census released by the Pakistan Bureau of Statistics, the Country’s transgender population stands at 10,418 – .005 percent of the total population.
However, the NDRA record shows much less than the 6th population census.
In the 6th population census, in province-wise distribution, 131 eunuchs are registered in KP, 1,953 in Punjab, 432 in Sindh, 87 in Balochistan, 27 in Islamabad, and 15 in Azad Jammu and Kashmir.
Therefore, 57 male eunuchs, 36 females and 38 Khunsa-e-Mushkil are registered in KP while 1,308 males, 588 females and 57 Khunsa-e-Mushkil in Punjab. Likewise, 290 males, 100 females and 42 Khunsa-e-Mushkil in Sindh while 37 males, 22 females and 28 Khunsa-e-Mushkil in Balochistan, Likewise, 12 males, 11 females and 4 Khunsa-e-Mushkil are registered in Islamabad while five males, nine females and one Khunsa-e-Mushkil in AJK.
Laila Khan – a trans rights activist – while talking with “The Reporters” said, before this act transgender persons were not considered as gender in Pakistan, and if a community do not have any identity how they will claim their other rights?
“We have got an identity now will struggle for the implementation of this act, and also for the protection of the transgender rights as defined in this Act”, she added.
Qamar Naseem – Director of Blue Vines Organization – while talking with “The Reporters” said, the Transgender Persons (Protection of Rights) Act, 2018 has many loopholes which are causing hurdles in its implementation.
He added that this law gives rights to a person above 18-year-old, so it does not talk about gender variant children, secondly, in this act, it is clearly stated that Government means the federal government, so this act is for the federal only which is a very small chapter.
This is a substantive law which tells you what transgender rights are but does not talk about what punishment will be given if their rights are violated.
Moreover, the implementation agencies mentioned in this law are the Federal Ombudsmen, the National Commission on Human Rights and the National Commission on Status of Women, all these are recommendary bodies and they do not have the authority to implement this act.
Qamar added, Khyber Pakhtunkhwa Assembly has established a special Committee that is called Committee No 6 for the legislation of the transgender rights bills, this committee with the consultation of the Council of Islamic Ideology has submitted the draft of the bill in the Assembly.
On the recommendation of the Council of Islamic Ideology, Committee has included the formation of the Screening Committees for the identification of transgender persons, but it will be a screening committee, not a medical or physiological board he maintained.
“After the analysis of the cases received to NADRA regarding the identity changing, we are convinced to change our stance and agreed on the establishment of the screening tests to identify the gender as there are chances that these laws can be misused in the future”, Qamar said.
It is pertinent to mention that this scribe also filed an information request to the Ministry of Human Rights regarding the updates on the implementation of the Transgender Persons (Protection of Rights) Act, 2018 but did not receive any response till filing this story.
When contacted Advocate Imran Shafiq, who is representing Senator Mushtaq Ahmed in the case, said, there are multiple benefits to giving the opportunity to the trans person for deciding his gender identity, particularly it will create problems in inherent matters.
To a question, he said, it will defiantly provide legal protection for the intersex, which is prohibited in Islamabad.
