In Pakistan, perhaps the only way to have a discussion about LBGTQ+ people is to debate transgender people’s rights. And that is the polarised debated that has blown up the internet this week

The Transgender Persons (Protection of Rights) Act, 2018 is being opposed more than it is being supported with the matter being heard in the Federal Shariat Court.

This law, commonly known as the Transgender Act, was presented in the last days of the PML-N’s tenure when Shahid Khaqan Abbasi was prime minister, by the Pakistan People’s Party’s senators (Rubina Khalid, Rubina Irfan, Samina Saeed, Kulsoom Parveen, Karim Ahmed Khawaja). All parties, including the PML-N, PPP, PTI unanimously voted in support of it and made it law.

The law is, thus, four years old.

The law is supposed to increase protection of transgender people or khwaja sira in Pakistan who are regularly beaten, mistreated, raped and murdered.

But why is the law suddenly in the news again and trending on Twitter? Turns out, it was given a new lease on life because of a discussion at the Senate Standing Committee on Human Rights on September 5. The committee wanted to talk about amendments or tweaks to the law suggested by right-wing Senator Mushtaq Ahmad Khan, who belongs to the Jamaat-e-Islami.

The debate was whether to made this change: The law declares complete men and women as transgender, which should be abolished. A person’s gender should be determined by a medical board of doctors and not the person themselves (self-perceived gender identity). And so, a medical examination should be made mandatory for people who wish to change their gender and gender identity.

Senator Mushtaq Ahmed Khan proposed that only intersex people are recognized as the third gender.

The standing committee will vote on the changes in October.

The fear is that the people backing this legislation have taken a stealthy route to legalise protection for homosexuality under the garb of protecting the rights of transgender people.

What the world did not do, our Pakistani rulers are doing

Senator Mushtaq Ahmed Khan told Aaj News that he believed that khwaja sira are worthy of respect and rights which should be protected but the Act has nothing to do with the rights of real khwaja sira. “This is a cultural imposition,” he said. In a secular country like India, sex change is subject to a medical board, while in the UK, you have to wait two years after before applying for one.

The senator referred to a report from NADRA: In three years, from 2018 to 2021, 28,723 people have changed their gender. The number of those who changed from male to female is 15,530. And the number of female-to-male conversions is 12,154.

According to Senator Mushtaq, the right to self-perceived gender identity has been given in Chapter 2, Section 3 of the law. This means a man or woman can apply to NADRA for the gender identity of their choice. A person who is biologically a man can be named as a woman in identity documents. This means then that ‘same-sex marriages’ can take place if that man (who is now identified as a woman) marries a man.

The surgical option

Nayab Ali, who runs the Transgender Protection Unit of the Islamabad City Police, and is party to the petitions being heard in the Federal Shariat Court, defends the law. She said that when it was being made in 2017, biological, cultural, psychological and international standards as well as Islamic principles were carefully considered. Transgender is an umbrella term.

Nayab Ali, who has been the victim of many attacks due to being a transgender, told Aaj Digital that according to the International Classification of Diseases-10 (ICD 10), it “is concerned to the mental condition in which you are born with all abilities but you are not satisfied with your condition and want to become a man from a woman or from a woman to a man.”

The American Psychological Association and other global groups recognize this condition, she said, and added that this condition was known as gender dysphoria and “it exists and such a person can undergo surgery”.

“In Iran, all this is done under the government’s patronage and hormonal therapy is also available on the basis of religious, scientific and cultural grounds.

Nayab Ali said that it was nowhere in the law that gender could be transformed upon a person’s own desire. This permission is only for those who consider themselves eunuchs.

“A person who has a transgender identity card (man, woman or eunuch) cannot get married under Pakistani law, but if the holder of a man’s identity card registers himself as a woman, then this is an administrative matter and should be asked from NADRA.”

Judicial precedent

Referring to a Lahore High Court’s decision which allowed a woman named Samia to undergo a gender change surgery, Nayab said that NADRA follows the same procedure as permitted in LHC’s verdict. “So the transition from a man to a woman or from a woman to a man has nothing to do with the transgender act. There is a judicial precedent in this case. “

She said that the definition of transgender being challenged in the Federal Sharia Court was a violation of human rights. “It is scientifically and religiously proven and is challenged due to lack of knowledge,” Nayab said and added that the identity of a person was his personal matter and Article 14 of the Constitution gives that right to transgenders.

“If we have to go through a medical board to get our identity, then men and women also need to go through the same process. There is no need for any amendment or ambiguity in the law. Jamaat-e-Islami is using these tactics for vote scoring. There is nothing illegal or un-Islamic about it.”

Pakistan’s culture is different from LGBT

When asked about the accusations of distorting the society and links of the transgender act with the LGBTQ community, Nayab said that the Pakistani transgender community had always kept itself apart from the international movement because of the difference in culture. “We believe in Sufis [saint] and spiritualists. Associating us with the LGBT agenda is strongly condemnable.”

Gender cannot be determined by any single reason

According to Prof. Dr. Ubaidullah, who serves as a plastic and reconstructive surgeon at the Northwest General Hospital and Research Center in Peshawar, he had been performing gender change surgeries even before the approval of the transgender act in 2018. “There are 4 to 5 surgeries in a year that involve complete gender reassignment.”

“The organs formed at the time of birth are sometimes ambiguous that the newborn is given the name of a boy or a girl, but in reality, this is not the case,” he said and explained that there were five criteria that were known all over the world and the fifth stage was “what is developed in your own mind, such as having suicidal thoughts or taking action would be the extreme stage of depression. So, in the same way, if someone thinks of himself as a woman with a man’s body, then internally he is a woman because we are what we think.”

The matter is not as it is being portrayed

Dr Obaid said that a boy who was thinking of himself as a girl or a girl thinking of herself as a boy was a state of mind that no one else could understand. “They don’t have the right to decide about it. I know because I treat such people. Each of the so-called eunuchs has a different story of physical development.”

It is a complete medical condition

Dr Obaid, while citing a survey report which stated that 12,000 people had undergone gender reassignment since the passage of the Act in 2018, said that he didn’t know the nature of the issues of transgender people, but “22,000 babies are born every year in the country with ambiguous genitalia, so this is a very small proportion of transgender people”.

He clarified that this was a complete medical condition in which religion or law does not interfere.

Controversial aspects of the Act

The act while defining transgender divides them into three categories: intersex (born eunuch), cisgender (cross-sex or congenital gender ambiguity / medically modified genitalia) and transgender (male or female).

Transgender will have the right to register their sex/gender identity with NADRA or other government agencies as per their self-identified identity. Every transgender person can get an identity card, passport or driving license according to their personal identity when they reach the age of 18 years, and those who already have an identity card can also apply for their identity change (he or she) to their identity card, passport or driving license.

Expulsion or discrimination from inherited property or inheritance cannot be tolerated and the right to inherit will be given according to the identity entered on the ID card.

The following will apply to those who are confused about their male or female identity.

After the age of 18 years, the child is/will be registered as a male, while if registered as a female, he/she will get/given inheritance rights as a female. However, if there is gender ambiguity, the average share of the inheritance rights of two separate persons, i.e. male and female, will be given. In case of being a minor (under 18 years of age), it will be determined as per the opinion of the medical officer.

Apart from this, under the transgender act, the respective governments are responsible for the welfare of the transgender community. Rights in educational institutions, hospitals, public places, workplaces and inheritance are protected by law.

The law prohibits discrimination and gives transgender people the right to vote or to be appointed to office. It warns those who keep or force a transgender person to beg of being punished with imprisonment up to six months or a fine of Rs50,000 or both.

The Transgender Persons (Protection of Rights) Act was enacted on September 25, 2012 after the Supreme Court’s judgment that transgender people have all the rights guaranteed by the Constitution.

This decision was given by a three-member bench comprising of the then Chief Justice Iftikhar Muhammad Chaudhry, Justice Jawad S. Khawaja and Justice Khilji Arif Hussain while hearing a petition by Islamic jurist Dr. Muhammad Aslam Khaki.

The petition was about the freedom of hermaphrodite children to earn a living in an “honourable way” instead of begging, dancing and prostitution.