Recognition and Resistance: Transgender Rights in Pakistan

The passing of the Transgender Persons (Protection of Rights) Act 2018 was a historical moment for the development of South Asian human rights and constitutional law, making Pakistan one of the few nations that have adopted a self-identification model, such as Denmark and Scotland. The statute recognized the fundamental human rights of transgender citizens, providing them with the right to self identification, protection from discrimination in healthcare, employment, housing or education, and the right to inherit, under Sections 3, 4 and 7 respectively.

The Act was enacted at a time where transgender activism was beginning to gain global momentum, with rising backlash and hate campaigns attempting to stop the growing movement. However, the key provisions of the Act were revoked by the Federal Shariat Court (FSC), which ruled that the right to self identification and inheritance were incompatible with Islamic law. This article argues that the backlash against the statute highlights the weakness of Pakistan’s constitutional system. The collision of human rights based constitutional law, religious doctrine, and weak gender identity laws is not only expected in the current political and legal system, but further exacerbated by faults within the system and the role of FSC. To reconcile Islamic jurisprudence and constitutional concepts of dignity and equality, a pluralist approach must be taken, grounded in these realities.

Historically, the khwaja sira community has occupied a respected and important position in South Asian societies. In the Mughal era, the khwaja siras served in administrative roles, were trusted officials and intermediaries within the royal court. However, under British colonial rule, their social status was greatly undermined. The introduction of the Criminal Tribes Act 1871, which described hijras as a ‘criminal tribe’, led to systemic repression, mainly through criminalization and surveillance of the hijra communities and their practices. This colonial stigma remained deeply embedded within post independence Pakistan. This had a profound impact on the modern position of the khwaja siras in society, effectively reducing their role and excluding them from society. These historical patterns of marginalization were acknowledged by the Supreme Court in the case of Khaki v Rawalpindi. Lengthy social exclusion serves to not only further dehumanize a vulnerable community, but was argued to require legislative intervention to fulfill constitutional obligations, such as in Articles 14 and 25.

This colonial effect is observed in modern Pakistan. Transgender persons are the most socially excluded groups, rejected by families, and are denied access to fundamental human rights and public services. As a result, many turn to high-risk survival strategies such as prostitution, drinking, and drug use. A 2018 study, revealed that the prevalence of suicidal ideation was high, and majority of the participants, 77.8%, experienced physical attacks. Transgender people are regular targets of violence in Pakistan. Between 2015 and September 2020, 68 transgender people were killed in Pakistan, and 1,500 were sexually assaulted in multiple incidents. In 2018 alone, the Human Rights Watch reported 479 violent incidents in Khyber Pakhtunkhwa alone. These realities, hence, became constitutionally significant, requiring the 2018 Act to provide basic protection of life, dignity and equal citizenship.

The major problem arising here is Pakistan’s merging of four distinct biological and sociological categories; biological sex, gender identity, the cultural khwaja sira community, and intersex or disorder-of-sex-development (DSD) persons. Redding (2015) argues that this categorical confusion not only lends to doctrinal incoherence, but further causes backlash and marginalisation, often using wording that causes more harm to transgender persons and their societal perceptions. The legal, medical and police departments all appear to use different language to refer to transgender persons in general, creating contradicting terminology across the public and social spheres. With the 2018 Act’s attempt to classify these diverse identities under one umbrella term, more confusion and incompatibility with Islamic law was created.

The recognition of modern transgender rights in Pakistan was largely a result of the landmark case of Dr. Muhammad Aslam Khaki v. S.S.P. Rawalpindi. Dr Khaki, an Islamic scholar and activist, filed a petition involving a case of police violence against a group of khwaja siras in Taxila. He argued that the Constitution of Pakistan guarantees equality, dignity and non-discrimination for all citizens, including transgender persons. The Supreme Court formally recognized fundamental transgender rights, and ordered the National Database and Registration Authority (NADRA) to include a third gender marker on identity cards, justifying this on the basis of key constitutional principles. Under Article 14, by recognizing transgender persons as full citizens, the inviolability of dignity was protected. Moreover, this recognition gave effect to Article 25 and Article 38, providing them with equality before the law as citizens and protection from any form of discrimination. In 2013, transgender persons gained more empowerment as they began to contest for elections.

This judicial decision formed the basis of future transgender rights based legislation and was widely praised. While the case itself remains highly significant, the judicial reasoning behind the case carried several flaws. The judgement made use of outdated terminology, referring to transgender persons as ‘eunuchs’ and claiming they had medical ‘gender disorders’. It failed to develop a difference between sex, gender identity, khwaja siras and DSD or intersex persons, leaving gaps within the law. The gaps later led to further doctrinal confusion, allowing outdated judicial reasoning to become constitutionally settled, rather than allow the coherence the Court intended.

The Transgender Persons (Protection of Rights) Act proved significant in terms of its provisions and rights provided to a vulnerable section of society. Section 3 was landmark in respect of allowing for self identification without needing medical or psychological certification. This placed Pakistan in line with progressive nations, such as Denmark, which was the first European country to allow for self identification. Section 4 provides protection from discrimination in public sectors, such as education, healthcare, workplace and housing. Further provisions in Section 5 include protection from harassment from police, state and employers.

The Act’s impact was largely beneficial to the transgender community, allowing for equal access to all public sectors. In 2020, Government College University (GCU) Lahore  allocated special seats for transgender students. Moreover, the Act expanded non-discriminatory access to healthcare, with the Sehat Insaf Card being made available to transgenders in 2019. Equal job opportunities were provided, with the Local Government and Community Development (LG&CD) department implementing a 2% quota to reduce unemployment and reliance on begging. However, the major controversial issue arose over Section 7 which allowed the right to inherit property without discrimination. This issue became a point of contention, due to Islamic inheritance laws, which are strictly defined by biological sex.

An additional benefit of the statute was Pakistan’s human rights obligations. Pakistan has ratified seven core UN treaties, including the International Covenant on Civil and Political Rights (ICCPR) and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). These uphold a duty upon Pakistan to uphold dignity, equality and prevention from discrimination. UN treaty committees and human rights bodies have recognized that discrimination based on gender identity falls within the scope of these treaties. Therefore, the Act brought Pakistan’s human rights law in line with its international treaty obligations.

Despite the beneficial aspects of the Act, it remained controversial, with religious petitions being brought to the Federal Shariat Court (FSC), arguing specific sections of the Act violated core verses of the Holy Quran. Petitions were brought against Section 2(f), which defined a transgender person, Section 3 and Section 7, arguing they violated the requirements of Article 203-203G of the Constitution. Article 203 deals with the FSC, establishing its function to review laws for repugnancy to Islam, its suo moto powers, appellate jurisdiction, and procedures for hearing Islamic law cases. The petition argued that self identification was not permissible under Islamic law, and raised concerns over individuals using self identification to interfere in women’s spaces.

In its 2023 ruling, the FSC struck down vital provisions, and called for them to be amended in line with its demands. The judgement argued Islamic law only recognized two biological sexes, and intersex persons are the only accepted exceptions, and any other form of psychological identity was unrecognized by Islamic law. The effect of this ruling has been condemned, with a study arguing that stripping a vulnerable community of its rights further marginalises and dehumanises it.

Methodologically, the FSC’s approach has been subject to many critiques. Rather than take into account constitutional principles of dignity and equality under Articles 14 and 25, the judgement adopted a narrow approach to Islamic jurisprudence. The FSC placed importance on biological determinism, disregarding interpretative tools such as, ijtihad, maqasid al-sharia, and judicial pluralism. The concept of ijtihad, or independent reasoning in Islamic law, is a tenant of interpretation, allowing Islamic legal principles to grow and evolve on their own. By interpreting religious doctrine literally, rather than leaving room for a purposive approach, the Court reduced the role of constitutional principles. Instead, it chose to rely solely on Islamic legal principles, leading to a clash of ideologies between traditional Islamic jurisprudence and modern human rights legislation.

Mainstream islamic jurisprudence recognizes biological sex as a determiner for legal and religious obligations rather than self perceived gender identity. The only recognized exceptions are intersex persons, also called khunsa, who are seen as a legitimate gender identity. There are certain rules developed to avoid ambiguity, with physical characteristics and social roles being taken into account to determine gender identity. Modern fatwas permit corrective surgery in certain cases, with surgery being allowed for DSD or intersex persons to mainly prevent suffering. Moreover, several Muslim majority jurisdictions have taken an approach reconciling Islamic jurisprudence with gender identity.

In Iran, Ayatollah Khomeini’s fatwa permits sex reassignment surgery, only in specific and recognized conditions. In Bangladesh, recognition of transgender persons is based on universal human rights, rather than Sharia law itself, extending legal recognition beyond religious norms. Each nation employs its own distinct interpretative tools, such as regulated medical law or statutory principles simply based on rights. This offers Pakistan models that can be adapted under its constitutional obligations of dignity and equality, as well as Islamic principles of welfare.

This suggests a gateway for transgender rights to be recognized in Pakistan without theological controversy. Rather than maintain a rigid structure, balance can be found by adopting different sources; Islamic legal principles, international human rights law, and fundamental constitutional principles. A way to maintain this is by allowing provisions of the Act to be effective in areas unrelated to fiqh, or Islamic jurisprudence, such as; education, healthcare, and workplace. Ensuring that these areas are free from discrimination falls outside the usual theological control, and can be justified through Articles 14, 25 and 38 of the Constitution.

However, the controversial point remains Section 7 of the Act, the right to inheritance. Islamic inheritance law maintains the importance of biological sex, but there is possible room for adaptation. Courts can reconcile inheritance laws through ijtihad, or establish a different legal framework, similar to the non Muslim personal laws. Any reform of inheritance based laws can be justified as a measured exception under maqasid al-sharia, not legal segregation. This allows it to operate outside FSC’s review, keeping Articles 203-203G intact, reflecting a pluralist approach to reconcile constitutional principles with religious law, and preventing any further confusion.

Furthermore, the most important step is to distinguish gender identities clearly from one another to avoid misrepresentation and ensure careful legislative drafting. As Khan (2016) demonstrates Pakistan’s consistent merging of biological sex, gender identity, khwaja siras community and DSD or intersex persons into one narrow category of ‘eunuch’ has led to incoherence within the law. This incoherence further encourages marginalisation and dehumanisation of the transgender community in social and public spheres. Without effectively distinguishing these identities from another, any protection or equality provided to transgender citizens will remain compromised.

Rather than self identification, India’s method of identity declaration could be modelled upon as stated in their 2019 Act. Individuals are allowed to obtain a Certificate of Identity from the District Magistrate based on their self declared identity, recognizing their identity as legally proven and protected. This method allows transgender persons to declare their identity and maintain autonomy, while simultaneously protecting addressing the concerns raised by FSC. Moreover, the aspect of non-discrimination raised in the Act must remain an important facet.

The protection from discrimination in education, healthcare, workplace, and employment sectors align with constitutional principles under Articles 14, 25 and 38. Violence protection is not only vital under Pakistani constitutional law and international human rights law, but holds importance in Islamic legal principles. Protection from discrimination and harassment for a vulnerable sector of the community is paramount, considering the danger posed to transgender persons. In September 2025, bodies of 3 transgender persons were found in Karachi, the latest proponent of the ongoing wave of hatred against the community.

To effectively reform the Act, a broad consensus must be taken from every cornerstone of the Pakistani legal system. Islamic scholars, transgender activists, constitutional lawyers, and medical professionals must all be consulted to provide effective legislation on transgender persons. A discussion would allow concerns to be addressed to provide strong legislation based on equality and fairness. However, this is incomplete without taking steps to mitigate misinformation and preventing further marginalisation towards the transgender community. Media outreach is crucial in clarifying nuance and introducing this sensitive issue to the broader portion of Pakistani society could help strike a balance between inclusion and tradition.

The Transgender Persons (Protection of Rights) Act 2018 remains a landmark moment in the history of South Asian human rights. However, the backlash revealed the instability of Pakistan’s legal system and the difficulty in reconciling modern human rights law with classic Islamic legal principles. Today, transgender rights continue to gain momentum in Pakistan, yet remain legally unsupported. The 2022 film Joyland gained widespread critical acclaim, but was ultimately banned citing Pakistan’s Motion Picture Ordinance of 1979, highlighting the social stigma prevalent today.

Ultimately, the credibility of Pakistan’s constitutional principles of dignity and equality will be tested by any future transgender legislation. The failure to reconcile important principles with religious doctrine will only lead to further vulnerability geared towards the transgender community and will dissipate public trust in the legislative system. The only sustainable path is a comprehensive pluralist approach, rather than absolute reliance on doctrinal provisions.

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https://na.gov.pk/uploads/documents/1333523681_951.pdf (accessed 11 January 2026)

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Variety

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