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Petitioner: Hammad Hussain and others VS Respondent: Federation of Pakistan through Secretary
Court Name: Federal Shariat Court Judge(s): Khadim Hussain M. Shaikh, Syed Muhammad Anwar (C.J) Title:Hammad Hussain and others vs Federation of Pakistan through Secretary,
JUDGMENT
Reported As: PLD 2023 Federal Shariat Court 301 Result: Order accordingly Judgment JUDGMENT DR. SYED MUHAMMAD ANWER, A.C.J.---Through this single judgment, we intend to decide all the twelve Shariat Petitions, through which several petitioners have challenged various sections of the Transgender Persons (Protection of Rights) Act, 2018 (hereinafter referred to as "Impugned Act/Law") and provisions of the Transgender Persons (Protection of Rights) Rules, 2020 made under Section 20 of the impugned Act. In addition to that some of the petitioners have challenged Regulation 13(1) of the National Database and Registration Authority (Application for National Identity Card) Regulation, 2002 made under the National Database and Registration Authority Ordinance, 2000. They also challenged policy followed by the National Database and Registration Authority (hereinafter referred to as "NADRA") regarding registration of transgender persons pursuant to the Transgender Persons (Protection of Rights) Act, 2018 i.e. the impugned Act. 2. In response to these petitions, the departments, which are arrayed as respondents in these petitions, duly submitted their written replies. In addition to that, some persons who are intersex and also those persons who identified themselves as either "intersex" or "transgender women" also appeared before this Court and requested to be impleaded as party in these cases. Apart from that, some psychologists, therapists, gender experts, scholars and members of civil society also requested this Court to be heard being experts in the captioned Shariat Petitions. All' such requests from both the sides were accepted and they have been granted an opportunity to submit their arguments, verbal or written.
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3. All the petitioners as well as the respondents and subsequently impleaded parties have been heard at length and were also given the chance to submit their written arguments. ARGUMENTS OF THE PETITIONER i. Hammad Hussain and some other petitioners 4. They mainly argued that in the garb of the impugned Act homosexuality will get a legal cover and it will become easy for sexually perverted people to indulge in such a major sin. They also argued that the teachings of Islam in the light of Holy Quran and Sunnah are clear regarding the permissible and impermissible sexual activities between the human beings. According to these petitioners the impugned Law will help in promoting illegal sexual activities, especially homosexuality in the society. Islam clearly restricts and limits sexual relations except between duly wedded male and female persons. Any immoral sexual activity outside the wedlock by any person, male or female, is termed as "Al-Fahishah"The word Fahishah literally means anything that exceeds the bounds of rectification or rectitude.
5. In the Holy. Quran, this word is used in many verses but in the following verses, this word can be translated in English as "gross, immodest, lewd, obscene, etc." The Almighty Allah has directed us to stay away from indulging in immoral and shameful activities. Allah has also associated such acts with Shaitan and termed these gross and immoral activities as major sins. Some of which are even punishable crimes according to the Holy Quran and Sunnah of the Holy Prophet). In the following verses, Allah (SWT) categorically directs that these immoral activities are acts of Shaitan, therefore, keep yourself away from them. They relied on the following verses of the Holy Quran: Surah An-Nahl (Verse-90), Surah Al-Imran (Verse-135), Surah An-Nur (Verse-21), Surah AI-A'raf (Verse-33) and Surah Al-Baqarah (Verse-219) 6. They also argued that the Holy Quran discusses some of the arguments forwarded by the non- believers to justify in some way these immoral activities. Some of the people say that they indulge in different immoral. activities considering it as part of their tradition and culture. The Holy Quran rejected this argument for justification of immoral and shameful activities being part of tradition or culture, hence considers it as deed of Shaitan, therefore, forbidden in Islam. In this regard Verse-28 of Surah Al-A'raf (7:28) states as follows:
"And when they commit an immorality, they say, "We found our fathers doing it, and Allah has ordered us to do it." Say, "Indeed, Allah does not order immorality. Do you say about Allah that which you do not know?"
Similarly, there are people who stress that by indulging in some immoral activities one can earn some money which can save that person from hunger or poverty. The Holy Quran also refuted these arguments because according to the Holy Quran the Provider of Food and Sustainer of the Universe is only Allah the Almighty. Such feeble arguments are forwarded by Shaitan to misguide or derail the human beings from straight path. Verse-268 of Surah Al-Baqarah is relevant in this regard, which is reproduced as under:
"Satan threatens you with poverty and orders you to immorality, while Allah promises you forgiveness from Him and bounty. And Allah is all-Encompassing and Knowing." Hence on the basis of these verses, the petitioners stated that in the light of abovementioned verses: i) There is no space for sex industry including homosexuality and other sexual perversions and sexual degeneracies in any manner and form, hence there is no concept of sex workers, etc. in an Islamic state.
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ii) In an Islamic state, any immoral, shameful and lewd activity cannot be allowed to continue being a part of tradition of any community within the society. 7. According to the petitioners, in Islamic law there is a concept of having preventive steps by the State in a society regarding these actions which may lead to some illegal or immoral activities and result into a crime or a major sin. In this regard the Holy Quran clearly declares the publicizing of any immoral act as an act of Shaitan and declared it as prohibited. Verse-19 of Surah An-Nur (24:19) states this phenomena as follow:
"Indeed, those who like that immorality should. 6e spread [or . publicized] among those who have believed will have a painful punishment in this world and the Hereafter. And Allah knows and you do not know." 8. The petitioners vehemently stressed that homosexuality is strictly prohibited in Islam. Likewise all the other Abrahamic religions have also declared homosexuality as one of the major sin. In this regard, the following verses of the Holy Quran are most relevant: Surah Al'Ankabut (Verse-28)
"And [mention] Lot, when he said to his people, "Indeed, you commit such immorality as no one has preceded you with from among the worlds." Surah Al-A'raf (Verse-80 and 81)
"And [We had sent] Lot when he said to his people, "Do you commit such immorality as no one has preceded you with from among the worlds?" (80) Indeed, you approach men with desire, instead of women. Rather, you are a transgressing people." (81) Further, the following references of the bible were quoted by the petitioners to support their arguments that even in Judaism and Christianity, homosexuality is a major sin, hence prohibited: 1. Leviticus 18:22: "You shall not lie with a male as with a woman; it is an abomination."
2. Leviticus 20:13: "If a man lies with a male as with a woman, both of them have committed an abomination; they shall 3. Romans 1:26-27: "For this reason God gave them up to dishonorable passions. For their women exchanged natural relations for those that are contrary to nature; and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in themselves the due penalty for their error."
4. I Corinthians 6:9-10: "Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God.
ARGUMENTS OF THE SENATOR MUSHTAQ AHMED KHAN 9. Senator Mushtaq Ahmad Khan argued his case in person as well as through his counsel at length and stated that the terms "gender" and "sex" in the impugned law are considered as two different things, whereas in Islam there exists no difference between the terms "gender" and "sex". They referred and relied on many injunctions of Islam from Quran and Sunnah of the Holy Prophet , wherein the injunctions of Islam are subjected to the biological sex of a person. According to him, some of the injunctions of Shariah or Ahkamaat are based on the sex of a person like injunctions regarding marriage divorce inheritance ablution and dressing of women as well as directions regarding different types of worships and prayers like Salat Som and Hajj etc. In support of this part
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of his arguments he relied upon many verses of the Holy Quran and abundance of Ahadith of the Holy Prophet 10. He vehemently argued that the term "transgender" is not defined in the impugned law according to the general principle of legislative drafting because according to the principles of legislative drafting a term in any law, which is to be defined, normally begins with the words "means" or "includes", whereas under Section 2(1)(n) of the impugned Act, the phrase "transgender person" is listed in the section 2 of the impugned Act that contains definitions but the term "transgender" itself is not defined as required, because it does not follow up with the words "means" or "includes" like "transgender means" or "transgender includes", instead the Section 2(1)(n) of the impugned Law states as follows: (n) "transgender person" is a person who is- (i) intersex (khusra) with mixture of male and female genital features or congenital ambiguities: or (ii) eunuch assigned male at birth, but undergoes genital excision or castration; or (iii) a transgender man, transgender woman, Khawaja Sira or any person whose gender identity or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth. Under Section 2(1)(n) of the impugned Act, the phrase "transgender person" is defined in three categories. 11. Senator Mushtaq Ahmed stated that according to Section 2(1)(n)(i) of the impugned Act, the "transgender person" is a person who is "intersex" (Khusra) with mixture of male and female genital features or congenital ambiguities. The petitioner conceded that to this extent he has no objection if any special legislation is made for the intersex persons. This stance has been clearly and categorically supported by all the petitioners. They jointly stated that Islamic injunctions accept the existence of intersex and consider intersex persons as the persons who are entitled to special care and treatment being persons who are suffering from some infirmity in their sexual organs or some physical and biological problems in the functions of their sexual organs. They also stated that in this regard the classic books of Islamic Fiqh (Islamic Jurisprudence) contain elaborative chapters and sections for intersex persons who are referred to in Islamic Fiqh terminology as Khunsa He further stated that he has no objection upon the term "Eunuch" as mentioned in Section 2(1)(n) (ii) of the impugned Act, because it is considered as an infirmity that a male child is born with, or in certain cases due to some accident or disease a person can develop later in life and becomes a eunuch at a later stage in his life. However, the process of genital excision or castration is not permitted in Islam if somebody wants to do it voluntarily. He reiterated his stance discussed above that the Holy Quran and Islam recognizes only two sexes i.e. male and female, in support of this he relied upon the following verses of the Holy Quran: 1. Surah Nisa (Verse 1) 2. Surah Nahal (Verse 72) 3. Surah Aaraf (Verse 189) 4. Surah Hujarat (Verse 13) 5. Surah Najam (Verse 45) 6. Surah Qiyamah (Verse 39) 7. Surah Layl (Verse 3) He raised serious objections on Section 2(1)(n)(iii) which acknowledges that a transgender person is a person who is: "(iii) a transgender man, transgender woman, Khawaja Sira or any person whose gender identity or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth."
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12. He also pointed out that the phrases "social norms" and "cultural expectations" are very vague and can differ from person to person and culture to culture. The subjective definition of any term cannot provide basis to any legal definition as is done in Section 2(1)(n)(iii) of the impugned Act. He further stated that the word "transgender" is relatively a new term coined in the English language. 13. The petitioner stated that the impugned Act contains contradictions in itself as the law considers medical examination for determination of gender of a person below the age of eighteen and does not consider medical examination necessary for a person above the age of eighteen. He referred to the Section 7(3)(iii)(d) of the impugned Act which provides for the mandatory medical examination of a person for determination of gender who is under the age of eighteen: "Below the age of eighteen years, the gender as, determined by medical officer on the basis of predominant male or female features." The counsel for Senator Mushtaq Ahmed argued that if any change in gender of a person is necessary and medically required from the sex which was assigned to him or her at the time of birth can be determined through medical examination for a person up to the age of 18 years, then why it should not be so determined on the basis of medical examination for persons above the age of 18 years? He stressed the point that any change in sex or gender of any person should be determined by way of medical examination and such a change cannot be allowed to be made only on the basis of mere statement to NADRA without any supportive medical evidence. It cannot be done by any person only on the basis of his or her inner feelings or self-perception. 14. He also relied upon the "Gender Recognition Act, 2004" of the United Kingdom (UK). and laws of some other jurisdictions according to which change in gender of any person other than the sex assigned at the time of birth is recognized under the law after--showing any evidence of medical diagnosis by a transgender person who wants to change the gender. He quoted that according to that law in UK in order to change their legal gender, a transgender person must fulfill certain conditions according to which they will be considered, and allowed or denied legal gender change, by the Gender Recognition Panel. To name some such conditions, (i) they must have or have had gender dysphoria; (ii) they must have been living in the claimed gender for two years before their application to the panel; (iii) they must intend to live in their claimed gender for the rest of their life; (iv) they must be at least 18 years of age or, (v) if the applicant is married, the marriage will have to be dissolved before a gender change can be recognized legally, until then an interim gender recognition certificate will be supplied. Additionally, they must also supply either a report made by a registered medical practitioner practicing in the field of gender dysphoria and a report made by another registered medical practitioner (who may, but need not, practice in that field), or a report made by a registered psychologist practicing in that field and a report made by a registered medical practitioner (who may, but need not, practice in that field). Once all the requirements are met, the applicant will receive a Gender Recognition Certificate which will allow them to have documents representing their claimed gender and also clear the path to gender affirming treatments and surgeries. Arguments Forwarded by Ansar Javaid, Chairman, Birth Defects Foundation As An Expert and Petitioner 15. A petitioner namely Ansar Javaid, who is the Chairman of an organization called "Birth Defects Foundation", argued that his organization is helping the intersex persons by providing them specialized medical aid to treat their respective sex related medical problems in order to remove the physiological ambiguities, which are there in such persons since their birth in one form or other and are considered as defects in their respective genitals or reproductive organs including chromosomal disorder etc. by birth.
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16. He categorically made a statement being an expert of this field that no person is born as a "transgender person". According to him such persons normally suffer from "Gender Dysphoria", which is a subsequent psychological development in any person after the birth and is a curable disease. Arguments Forwarded by Professor Dr. Najib-ul-Haq and Professor Dr. Muhammad Irfan from Pakistan Islamic Medical Association (PIMA) 17. Professor Dr. Najib-ul-Haq and Professor Dr. Muhammad Wan from Pakistan Islamic Medical Association (PIMA) also appeared as experts and forwarded their opinion in the case. The latter being an expert of psychology stated that gender dysphoria was listed as a sexual disorder and a disease in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) as well as in the International Classification of Diseases (ICD). He further stated some basic reasons for the cause of this mental disorder, namely (1) dissatisfaction, (2) anxiety and (3) perception problem in someone's mind due to his or her surroundings in which he or she remains. He also pointed out that the "gender dysphoria", which was earlier included as a mental disorder has recently been excluded from the list. He also stated that now some new terms like "other-kin" and "trans-species" are also being introduced which are more disturbing than the term transgender. He concluded his arguments by reiterating that gender dysphoria is a curable disease and if any society accepts the concept of transgender, as stated in the impugned law, then there will be nothing to stop the sexual perversions and sexual degeneracies spreading in the society. He further argued that there are cases of "detransition" also, meaning those persons who changed their genders according to their self-perceptions subsequently desire to rechange their gender and decide to align their genders according to the sex they have and which was assigned to them at the time of their birth. They also referred a few such cases of "detransition" also arguing that the impugned law is silent about "detransition", which creates further complications about this law that what would happen if a "transgender woman" or a "transgender man" perceives differently or opposite to his or her earlier perception about the gender he or she adopted. Arguments of Jamiat Ulema-e-Islam Pakistan through Mr. Kamran Murtaza Senior Advocate Supreme Court of Pakistan 18. One of the petitioners in S.P. No.14/1/2022 (Jamiat Ulema-eIslam Pakistan v. Federation of Pakistan) has challenged the Transgender Persons (Protection of Rights) Act, 2018 as a whole. Mr. Kamran Murtaza, Senior Advocate Supreme Court appeared on behalf of the petitioner and made detailed arguments objecting each and every section of the impugned law. 19. Fundamentally, he challenged a portion of definition of the term "transgender person" as defined in Section 2(1)(n) of the impugned Act. He categorically mentioned that he has no objection regarding the term "intersex" (Khusra) as defined in Section 2(1)(n)(i) of the impugned Act. He further stated that Islam recognizes intersex persons i.e. persons who are born with some biological infirmity in their sexual organs or sexual functions who are called as Khusra in Urdu. Islam gives them all the rights, which are elaborately mentioned in the books of Islamic Jurisprudence. Therefore, the petitioner is not objecting the definition of intersex as it is defined in the impugned law. He also stated that all the rights, which are mentioned in the impugned law, must be given to the intersex people, rather they deserve much more rights than that, which are mentioned in the impugned Law. He stated that rights like protection of intersex persons in old age, when they become more vulnerable and require more attention of the State. Intersex persons are special persons suffering from serious biological infirmity. 20. While arguing Section 2(1)(n)(ii) of the impugned Act, Mr. Kamran Murtaza, Sr. ASC argued that he has no objection on the definition of "eunuch" as mentioned in the impugned Act, however he raised an objection that if the castration of a male person is done intentionally or if some male person willingly undergoes genital excision then it is not permissible in Islam because it will amount
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to illegal medical intervention in human body or it will be considered as an attempt to change the creation of the Creator, which is forbidden in the light of teachings of the Holy Quran and Sunnah. In this regard, he relied on Verses 117-119 of Surah An-Nisa. Furthermore, he made it clear that if some male is castrated due to some disease or by an accident or by some criminal assault of some other person then such a person deserves to have all the rights mentioned in the impugned Act. Such persons should not be discriminated against in the society and should be treated by the society and State as a special person. 21. The whole focus of the arguments of Mr. Kamran Murtaza, Sr. ASC was on the expressions "transgender man", "transgender woman" and "Khwaja-Sira" as defined in Section 2(1)(n)(iii) of the impugned Act. He raised serious objections vehemently that the gender of any person cannot be defined in accordance to his or her perception, which is different from the sex assigned at the time of birth. He further elaborated in his arguments that such perception of a person about his or her gender, which is different from the sex assigned to him or her at the time of birth can be an incorrect perception; or it can be a result of some mental or psychological disorder; or, a person can pretend himself or herself to be a person of opposite sex from the one he or she actually and biologically has on the basis of some malice or criminal intent. 22. He further argued that the "gender identity" as defined in Section 2(1)(t) and "gender expression" as defined in Section 2(1)(e) of the impugned Law can also be a result of a perception of a person: i) Based on some temporary or momentary feelings or timely mental condition, which can be changed; or ii) Are result of some kind of mental disorder, or mental disease. He further stressed that a person can opt for change of gender with some criminal intent and ulterior motive or due to mala fide or malice. He said that the mala fide of a person in this regard can either be based on criminal intention of committing some sexual assault or other crimes under the guise of self-perceived identity. He also made a point that according to Islamic teachings, sex and gender are assigned by the Creator to every person and it is not the right of the creations to define their gender according to their whims and wishes. He also pointed out that impunged law does not contain any provision which provides the consequence of non-compliance of the impugned law, like any punishment or fine, etc. More prominently the impugned law does not contain any provision as safeguard of its misuse because in the present form, there are ways and means existing in the impugned law, through which the impugned law can be abused and misused thus infringing the rights of the intersex persons for whom this law was meant to be enacted on the one hand and can make females and minors in a society more susceptible to sexual assaults. Any biological male person can get access to all the places which are secluded specifically for female genders, like girls educational institutions, schools and universities etc., girls' hostels, hospitals and other places, where services are provided to women only. Similarly, the services and jobs, which are specially and specifically allocated to females can easily be misused by biologically male persons having a CNIC of "X" Gender Mark issued by NADRA identifying him as a `transgender woman' under this law, because by doing so after having CNIC with Gender Mark 'X' by NADRA, that biological male person cannot be stopped to avail any facility or privilege meant for women only. The learned counsel gave a long list of such situations where this law can be misused and abused under this pretext. 23. Mr. Kamran Murtaza, Sr. ASC forwarded his arguments verbally as well as he made objections in…
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