A brief critique of Pakistan's Transgender Law

The government of Pakistan passed a bill in 2018 which was named ‘The Transgender Act’. Portrayed as a law passed to uplift the Khawaja Siras or the effeminate men community. The act stated that “any person shall have a right to be recognized as per his or her self perceived gender identity”. What this meant was that any man could get themselves registered as a woman and any woman as a man. Although this bill was passed and made into law, it raised several philosophical questions that to this date are unanswered. One of the stated reasons for the necessity of the bill was that it “reclaimed” the lost status of the Khwaja Siras that they once had during the Mughal Empire in South Asia. However, the “reclamation” of that status has seen different attempts and methods beginning in 2009’s legislative changes up until the 2018 bill which gives the option to not just Khawaja Siras but to practically everyone who desires to have themselves registered as their “self-perceived gender identity”. It seems that the law is an exemplification of the identity politics that took rise with post-modernism in the west whereby a minority group is recognized based on a common identity of its constituents. These minority groups undertake activism and lobby governments into working in their favor. Hence, anyone who identifies as part of this group receives the benefits or recognition that are a result of this activism. An example, relevant to the case at hand, is the transgender movement in the west. I contend that this law in Pakistan has undertaken similar politics to ensure the uplifting of the Khwaja Sira community. Such an option, however, with regards to “choosing one’s gender” is a western construct and we find no such demands among the Khwaja Siras of the Mughal Empire or in the Khwaja Siras communities now by and large.  Furthermore, I also contend that recourse to identity politics does not solve the economic crisis of the Khwaja Sira community but further raises philosophical, logical, and, following from them religious conundrums in an Islamic country like ours, which, to this date, remain unanswered. To better understand these vexing philosophical and logical problems, two op-eds have been used as references in this article to present arguments from both sides of the aisle, those defending the 2018 bill and those opposing it.

One of the most fundamental questions is, whether a man can really become and subsequently be registered as a woman. If this question is answered in the affirmative, as the bill asserts, it, as we shall see, leaves no difference between men and women. An editorial titled “If transwomen are women, what is a woman?” appeared on Medium written by a professor of philosophy from Keele university in 2018 (Allen, 2018). She wrote this editorial in response to an editorial titled “Trans Women Are Women” which appeared on The Root written by a communications associate for Transgender Law Centre in 2017 (Willis, 2017). The first editorial posits that no man can become a woman and vice versa whilst the second editorial asserts that a man can become a woman and vice versa. Analysis of both the editorials will answer the fundamental question that whether a man can become a woman and vice versa. The first editorial raises several rhetorical questions that conclude that no man can become a woman and vice versa.

 If being a woman has nothing to do with biological or physical reality, as is required when it is stated that transwomen (biological males) are real women, then it leads to a severe implication. It is that by making such a claim, there ‘remains no difference between a man and a woman’ (Allen, 2018). If feelings, and not biology, are considered to be the determining factor of a transwomen’s claim to be a woman as (Willis, 2017) suggests, then what is the factor that has determined normal biological men or women as men or women? It seems that biology is presumed to be the determining factor for normal men or women. This is an inconsistency in the criteria with which a person’s gender is determined. For some biology is considered a criterion whilst for others, it is not. So, if biology isn’t considered a criterion, it leaves no difference between a man and a woman, as (Allen, 2018) argues, since biology is what differentiates them. Furthermore, (Willis, 2017) argues that it is wrong for womanhood to be defined as the hegemonic cisgender (normal people who do not transition) woman’s experience. This remark implies that biological sex is divorced from gender and that gender and sex are two separate realities. Contrarily sex and gender are used interchangeably and to suggest otherwise implies that a child’s gender or sex isn’t determined at birth. Such a claim has primarily two implications. If gender is divorced from sex, then either being a woman is associated with gender roles, or it is based on some internal feelings of ‘feeling like a woman’ (Allen, 2018). If being a female is associated with gender roles, it would imply that females who break with feminine stereotypes and engage in stereotypically manly behavior are not women but men. If being a female is associated with internal feelings, it invites philosophical questions about what this ‘feeling’ is and how we can accurately determine whether it is present. Moreover, how can one feel like the other gender without being that gender?

Following from these vexing philosophical and logical contradictions, perhaps of more importance are the religious implications that flow from this law for the religious state of Pakistan. Since all laws are constitutionally bound to abide by the principles of the Quran and Sunnah as stated in the constitution, and also that the society of Pakistan is religious, what if a male for example identifies as a woman? Does he perform a nikah (marriage contract) with a man since he now identifies as a woman? Similarly, what would the laws of inheritance be for such a man especially when Islam prescribes different shares of inheritance for men and women? Of importance are also laws regarding parda (veiling or segregation) between the two genders.

 In light of the above evidence and arguments, it is valid to say that the current Transgender Act (2018) of Pakistan raises some philosophical questions. A failure to provide coherent arguments by those asserting that Transwomen are women leads to the necessary conclusion that Transwomen are not women but males. Amendments need to be made to address the poor economic status of Khawaja Siras or the effeminate men community. The solution, however, does not lie in changing their genders but to address the root cause of the problem.

REFERENCES 

 

1: If transwomen are women, what is a woman? | by Sophie Allen | Medium 

2: Trans Women Are Women. This Isn’t a Debate. (theroot.com)