Muslim Clerics Issue Fatwa on Transgender Rights in Pakistan

Last week, 50 Muslim clerics in Lahore issued a fatwa granting transgender people the right to marry under Islamic law.

Last week, 50 Muslim clerics associated with the Tanzeem Ittehad-i-Ummat religious law organization in Lahore, Pakistan issued a fatwa granting transgender people the right to marry under Islamic law. A transgender person with “visible signs of being male” may marry either a transgender woman with “visible signs of being female” or a non-transgender woman. The decree has further stipulated that transgender people must not be deprived of their rightful inheritance and funeral rituals as would be performed for any man or woman, and that it is a sin to humiliate, insult, or tease them on the basis of being transgender.

Transgender people are among the most marginalized groups in Pakistan, with taboos surrounding their orientation rooted in sociocultural and religious conceptions. The bigotry has gone so far as to often deprive transgender people of even a customary Islamic burial. Trans Action Alliance, an advocacy organization in Pakistan’s northwestern province of Khyber Pakhtunkhwa, has collected data on crimes within 15 districts, reporting that in the past two years at least 46 transgender people have been killed and 300 have been raped or tortured. However, police in the province have only registered cases concerning no more than 22 murders and have largely ignored registering cases of their rape and torture. Among many such crimes is that of a 23-year-old transgender woman named Alesha who, in the month of May, was shot eight times and died after hospital staff spent an hour of vital time debating whether to place her in the female or male ward.

The two-page fatwa, however, has received cautionary feedback by Pakistan’s transgender allies. Zia Naqshbandi, head of Tanzeem Ittehad-i-Ummat, shared that the clerics issued the decree in order to convince the state, larger society, and the families of transgender peoples to accept them.

“They should have the right to health, education, a job, and inheritance,” Naqshbandi said. “They should be registered by the state and a job quota should be fixed for them. We have been asking the state and society to mainstream them.”

On the other hand, Farzana Naz, the Peshawar-based president of Trans Action Alliance, responded, “This decree is not legally binding and will hardly make a difference. But we are happy that somebody talked about us, too.”

A few caveats underscore the fatwa’s shaky grounds:

1. The recent decree is not legally binding—Will a mere call for change ensure societal, behavioral change? Who will patrol and police daily civic interactions for the protection of the transgender community? What are the incentives for non-transgender groups to support transgender people? These are questions that are not limited to Pakistan’s religio-political framework. After all, there have been decrees in favor of transgender people in the past, yet violence has endured. In 2012, Pakistan’s Supreme Court already declared equal rights for transgender citizens, including the right to inherit property and assets.
2. Only those transgender peoples who have also been granted Pakistani citizenship are covered under the fatwa—Just as with all basic human rights, citizenship in a nation state is the prerequisite, or the right to have rights in the first place. So those transgender people who may be refugees seeking asylum or have yet to attain legal documentation guaranteeing permanent residence and the ability to work, vote, and pay taxes, are simply in limbo. Although unjustifiably so, they are not protected by any informal or formal decrees outlining transgender rights.
3. The fatwa still prohibits transgender people with “visible signs of both genders” to marry anyone—According to Islamic clerics—including Naqshbandi—it is haram (sinful) for transgender people with “visible signs of both genders” to marry anyone under Islamic law. Pakistan forbids same-sex marriages and gay men are charged under anti-sodomy laws. But criteria for determining male or female characteristics amongst transgender people are not specified under the fatwa, nor does the fatwa address the rights of those who have undergone sex-change surgery. This view—equating homosexuality with transgender peoples possessing signs of both genders—indicates a lack of understanding regarding the fundamentals of sexual orientation. If religious authorities are not able to clearly define the subsets of LGBTQ, how can they accurately advocate for or against its subjects?

Trans Action Alliance has estimated that at least 45,000 transgender people live in the Khyber Pakhtunkhwa province alone, with half a million nationwide. It appears that underreporting criminality and overstating entitlements play equal roles in the negligence of Pakistan’s transgender community.