“We now know that sex is complicated enough that we have to admit nature doesn’t draw the line for us between male and female, or between male and intersex and female and intersex; we actually draw that line on nature”—Alice Dreger
They say that it is never too late to learn, a process that starts from birth and continues until death. Each day one is confronted with new things that are explored, adopted or discarded but the cycle keeps on moving. Similarly, it is never too late to unlearn the learnt and update our knowledge about certain issues. Some terms and concepts of an alien language find their way in another culture and at times take on a meaning that is quite different from the original. Consequently, the wrong perception becomes so profound that people just carry on with it unconsciously as if that is the truth. One such term is “transgender.” A friend based in the USA was shocked to see that in Pakistan there existed misconceptions regarding gender identity and transvestitism for which the friend requested a write-up to explicate it for the benefit of the public.
In the Transgender Persons (Protection of Rights) Act, 2018 (henceforth “the Act”) section 2(n) defines the word ‘transgender’ as follows:
“transgender person” is a person who is-
- intersex (khusra) with mixture of male and female genital features or congenital ambiguities: or
- eunuch assigned male at birth, but undergoes genital excision or castration; or
- a transgender man, transgender woman, KhawajaSira 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.
The above implies that anyone falling in any of the three sub-clauses would be called a transgender person even though s/he is clearly distinguishable from other categories mentioned here. Rather than using a term like ‘gender identity’ to encompass all categories, one particular form is used as reference. It appears that while enacting the law, the legislators were themselves oblivious to the significance of various terms and unaware about their correct meanings. This also goes to show the level of interest taken by our legislators while drafting laws. Apparently, they neither consulted any experts, nor did they even bother to have a look at laws of other countries. Certainly, it would have added to everyone’s knowledge if the terms used were explained correctly.
Arabic language from which many Urdu words have been derived, has specific expression for each type of individual born with visible or hidden biological impairments or made to undergo some form of emasculation. These are khasi (eunuch), hijra, mukhannath, mamsuh and khunta (intersex). While khasi is a castrated human male who does not necessarily adorn the female form, hijra is born and raised as a male but chooses to adopt female identity and considered as third gender (usually referred as ‘it’). A man behaving and speaking like a woman is termed mukhannath (effeminate) whereas a woman who acts like a man is referred to as khunus (tomboy). On the other hand, mamsuh describes someone who is deprived of either male or female genitals and khunthas is one who is born with both male and female sex organs.
Individuals born with male/female combination of sex chromosomes, organs, gonads etc. are ones whose identity as a male or female is difficult to establish. In Pakistan, majority of the so-called transgender people are actually intersex and could be forced to undergo surgery during infancy. They are the ones who are side-lined by the society and made to bear humiliation for no fault of their own. They are the ones who are fighting (and we should fight too) for their rights and in demanding recognition as human beings who want to be respected, cared for and allowed to participate in all activities just like other humans.
The two terms—transgender and intersex—are often confused: while a person who is transgender has a gender that is, by choice or need, different from the one traditionally associated with the non-ambiguous sex organ they were born with and hence they are assigned the sex at birth, a person who is intersex is born with an ambiguous sex organ and/or varied reproductive anatomy such that their body does not fit into typical/recognised definition of expression, “male” or “female”. According to the “Free & Equal Campaign Fact Sheet: Intersex” United Nations Office of the High Commissioner for Human Rights. 2015, “The term transgender describes people born with physical sex characteristics “that do not fit typical binary notions of male or female bodies.” It is as if both women and men feel that they are trapped in the wrong bodies and may decide to change their bodies through sex-reassignment surgeries.
Anyone who has watched the Pakistani movie “Bol” would be able to understand the transgender phenomenon better. The only son in the family portrayed in the film was inclined towards behaving like a girl, enjoying different types of female activities. Such persons, if they are capable of making independent decisions and are financially well off, prefer to undergo surgery to permanently become either male or female. Two renowned Islamic clerics, Al Tantawi of Egypt (1988) and Ayatollah Khomeini of Iran (1987) have passed fatwas (edicts), granting permission to perform an operation changing a man into a woman, or vice versa, as long as a qualified/reliable doctor concludes that there are innate causes in the body itself, indicating a buried (matmura) female nature, or a covered (maghmura) male nature, because the operation is the means to disclose these buried or covered organs, thereby curing a corporal disease which cannot be removed, except by this operation.
The cases of Sally, Al-Azhar of Egypt and Maryam Khatoon of Iran are worth studying for whom the above mentioned edicts were passed and they were allowed to change their sex from male to female through surgical means but not before they battled their cause with the society and their respective clerics.
Unfortunately, in our country people are unwilling to accept an atypical child in their family and depending on its assigned sex at birth, continue to treat him/her as such despite clear indications of unusual personality traits. As a result, the child suffers mental disorders and is sometimes referred to a psychiatrist or is compelled to go under the knife for ‘corrective’ surgery to please the anxious parents. In short, whatever the case—intersex or transgender—both communities wrestle with a loss of decision-making authority over their own bodies, the rights of which are being sought all over the world.
Therefore, it is necessary for the Pakistan’s legislators to re-visit the Act and amend it as discussed above and re-title it as ‘Intersex and Transgender Persons Act’ (ITPA).
The writer, lawyer and author, is an Adjunct Faculty at Lahore University of Management Sciences (LUMS)