The Federal Shariat Court’s ruling that key provisions of the 2018 Transgender Persons (Protection of Rights) Act are repugnant to Islam is a blow to the transgender community and to all human rights defenders in Pakistan. The basis of the FSC’s ruling is that Islam does not recognise a distinction between sex and gender. There is, however, insufficient textual support in Quran and Hadith for the FSC’s ruling, which also contradicts a scientific consensus that gender and sex are not identical.
The World Health Organisation recognises that “gender interacts with but is different from sex, which refers to the different biological and physiological characteristics of females, males and intersex persons ….” It further notes that “[g]ender and sex are related to but different from gender identity. Gender identity refers to a person’s deeply felt, internal, and individual experience of gender, which may or may not correspond to the person’s physiology or designated sex at birth.”
The Yogyakarta Principles, a set of principles developed by international human rights experts in 2006 on the application of international human rights law to gender identity and sexual orientation, say that everyone “has the right to legal recognition without reference to, or requiring assignment or disclosure of, sex, gender, sexual orientation, gender identity, gender expression or sex characteristics. The Yogyakarta Principles also say that “[n]o one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity.”
The Federal Shariat Court states that intersex, eunuchs, and khwaja siras are persons with disabilities in their organs and are entitled to medical treatment to “cure” them of their disorders. The requirement for any kind of medical certification as a condition to availing fundamental rights contradicts human rights principles.
The independent expert on protection against violence and discrimination based on sexual orientation and gender identity appointed by the UN Human Rights Council has also recognised the right of all persons to self-perceived gender identity. In its 2018 report, the independent expert states that “the principles of freedom and autonomy directly contradict the idea that a person is born to play a certain role in society.” The report says that a “[s]elf-determined gender is a fundamental part of a person’s free and autonomous choice in relation to roles, feelings, forms of expression and behaviours, and a cornerstone of the person’s identity.”
The Indian Supreme Court has recognised that a person’s right to self-identification of gender is protected by the Constitution of India. In its 2014 judgement of NALSA v. Union of India, the Supreme Court emphasised that such self-identification of gender identity should be without the requirement of any kind of medical examination or intervention, and held that ““gender identity is integral to the dignity of an individual and is at the core of ‘personal autonomy’ and ‘self-determination.’” It further held that “no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity.”
The FSC states that intersex, eunuchs, and khwaja siras are persons with disabilities in their organs and are entitled to medical treatment to “cure” them of their disorders. According to the FSC, the rights set forth in the 2018 Act should only be available to intersex and eunuchs – and not to transgender men or women as the latter are repugnant to Islam. The judgement could entail that persons require some sort of medical assessment to confirm that they are “intersex” or “eunuch” as defined by the FSC to avail the rights and privileges under the Constitution and the 2018 Act. However, the requirement for any kind of medical certification or authorisation as a condition to availing fundamental rights contradicts human rights principles.
The FSC judgment is based on selective reliance and broad interpretation of Islamic injunctions. It offers little justification for vitiating the rights of transgender persons, who have a right to be recognised as equal citizens.
 Act are repugnant to Islam is a blow to the transgender community and to all human rights defenders in Pakistan. The basis of the FSC’s ruling is that Islam does not recognise a distinction between sex and gender. There is, however, insufficient textual support in Quran and Hadith for the FSC’s ruling, which also contradicts a scientific consensus that gender and sex are not identical.){kind=link}