Trans community challenges FSC’s verdict in Supreme Court

• Trans community challenged FSC’s verdict in Supreme Court.
• The petition said the decision was against the marginalized community.
• The FSC declared sections of the Transgender Persons Act 2018 un-Islamic.

ISLAMABAD: The transgender community and civil society have challenged the recent decision of the Federal Shariat Court (FSC) in the Supreme Court of Pakistan.

The FSC struck down a law aimed at protecting transgender people’s rights and declared that some of its provisions were against Islamic injunctions.

The FSC declared that certain sections of the Transgender Persons (Protection of Rights) Act 2018 – including those pertaining to gender identity and the right to inherit contradicted Islamic law.

A petition has been filed in the apex court by Nayab Ali, director of Transgender Rights Consultants Pakistan (TRCT), and Muhammad Sarim Imran, contending that the FSC has denied rights to identity to an entire community.

It noted that the parliament sought to own and integrate the marginalized community into the society and give it protection, It lamented that the FSC’s decision harmed the members of the community already disowned by their families as well as the society.

“That the verdict has ordered the transgender persons be disowned. With their backs to the wall, the transgender community will be forced to conclude that the society, the state and its institutions are a warpath against them and that they are victims of genocide by the state,” the petition said.

It said that the fears about the spread of sexual vices in society are exaggerated and misplaced as homosexuality was strictly forbidden and criminalised under Section 377 of PPC.

It further emphasized that the interpretation of Quran and religious injunctions should be based on knowledge and logic “and empathy is shown particularly towards the marginalised, wretched of the earth” and must not be based on ignorance, fears and suspicions.

It said the Federal Shariat Court’s decision to strike down key provisions of the Act without sufficient Islamic justification would be a huge blow to the basic concepts of human autonomy and dignity;

The petition prayed the SC to declare that legislation represents the consensus of the community enacted by duly elected representatives and is entitled to a presumption of validity which cannot be interfered with by the Federal Shariat Court in the absence of a clear violation of explicit Islamic injunctions as laid down in the Holy Quran and Sunnah.

It also declared that the Federal Shariat Court has no jurisdiction save as expressly conferred by the constitution and can give no binding finding or observation in respect of legislation. It argued that the judgment was unlawful, unconstitutional and without jurisdiction and should be set aside.

FSC verdict

The Federal Shariat Court had declared provisions under the Transgender Act un-Islamic. It also clarified that gender remains the same as it is at the time of birth, adding no one can change their gender at will.

Islam has provided all basic rights to transgenders, while a share in inheritance is also given according to gender. Prayer, fasting, and Hajj are among several acts related to gender, the court ruled.

Declaring Section 3 of the Act null and void, it has clarified that the Shariah law does not allow anyone to change their gender, it remains the same that is assigned at birth.

The gender of transgender persons will be determined by the predominance of physical influences, not based on their feelings and emotions. It also struck down a section on gender identity and reassignment.

According to the ruling, it will be un-Islamic if a man or woman calls themselves transgender disregarding their biological gender.

The Federal Shariat Court also declared Section 7 of the Transgender Act null and void. Under this section, anyone could choose their gender at their will and seek their share in inheritance.