HAMMAD HUSSAIN vs FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice S

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HAMMAD HUSSAIN VS FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice S.2(1)(n)---Constitution of Pakistan, Art. 203-D---Shariat petitions---Transgender person---Definition---Scope---Terms Intersex (Khusra), Eunuch, Transgender Man, Transgender Woman and KhawajaSira included in the definition of â€œtransgender personâ€ under the Transgender Persons (Protection of Rights) Act, 2018---Repugnancy to injunctions of Islam---Five terms (Intersex (Khusra), Eunuch, Transgender Man, Transgender Woman and KhawajaSira), which are included in the definition of â€œtransgender personâ€ in S. 2(1)(n) of the Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act'), are not identical and similar---Combining the said five terms under one definition of 'transgender person' can be considered a circular definition fallacy as it implies that all these terms are the same or interchangeable---Terms Intersex, Eunuch and KhawajaSira refer to biological variations in sex characteristics, while 'Transgender man' and 'Transgender woman' refer to individuals whose self-perceived gender identity differs from the sex they were assigned at birth or from the sex they have biologically---Not only are all persons who fall within the category of any of the five terms used in S. 2(1)(n) different physically but the ruling of Islamic injunctions according to Quran and Sunnah about them are also different---Section 2(1)(n)(i) of the impugned Act which defines the term Intersex (Khusra) is not against the injunctions of Islam---Section 2(1)(n)(ii) of the impugned Act, which mentions Eunuchs is also not against the injunctions of Islam but needs clarity as according to Islamic injunctions a person cannot undergo castration to become eunuch at his will---However, S. 2(1)(n)(iii) of the impugned Act is against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh) because many Islamic injunctions and direction are subjected to and are based on the biological sex of a person (male or female) which cannot be based on the basis of the innermost feelings or self-perceived identity of a person (male or female) about his or her â€œgenderâ€ being different from the sex he or she has since birth. Head NotesCase Description Citation Name: 2023 PLD 301 FEDERAL-SHARIAT-COURTBookmark this Case HAMMAD HUSSAIN VS FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice S. 2(1)(n)--- Constitution of Pakistan, Art. 203-D--- Shariat petitions---Whether sex or gender provides the basis for gender identity of a person as male or female in the light of the injunctions of Islam as laid down in the Holy Quran and Sunnah---Held, that Islam gives recognition to only two sexes i.e. male sex and female sex and, therefore, it makes sex as the basis of identity of a male person and a female person and not their gender---Any law, rule or regulation which gives gender of a person legal precedence over sex is illegal and void being against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh)---In Islam since 'sex' is the basis of identity of male and female therefore, Islam does not allow the voluntary change of sex by any male or female, either by way of medical or hormonal etc. intervention. Head NotesCase Description Citation Name: 2023 PLD 301 FEDERAL-SHARIAT-COURTBookmark this Case HAMMAD HUSSAIN VS FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice Ss. 2(1)(e) & 2(1)(f)---Constitution of Pakistan, Art. 203-D---Shariat petitions---'Gender identity' and 'gender expression'---Term 'gender identity' as defined in S. 2(1)(f) and the term 'gender expressionâ€ as defined in S. 2(1)(e) of the Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act') and as they are used in different provisions of the impugned Act---Repugnancy to injunctions of Islam---Definition of â€œgender identityâ€ in S. 2(1)(f) of the impugned Act does not conform to the criteria of identity of a male person and a female person according to the injunctions of Islam---In Islam, the basis of â€œgender identityâ€ of a male or female is the sex of that person---According to injunctions of Islam the gender identity of a person cannot be based on inner most feelings or as per self-perception of a person which is other than the biological sex of that person as stated in S. 2(1)(f) of the impugned Act---Similarly, the gender identity of a person cannot be based on the basis of his or her attire or outer look or how a person presents his or her gender as stated in S. 2(1)(e) of the impugned Act. Head NotesCase Description Citation Name: 2023 PLD 301 FEDERAL-SHARIAT-COURTBookmark this Case HAMMAD HUSSAIN VS FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice S. 4(f)---National Database and Registration Authority (Application for National Identity Card) Regulations, 2002, Regln. 13(1) [since deleted]---Constitution of Pakistan, Art. 203-D---Shariat petitions---Intersex persons---Right to perform Hajj or Umrah---Plea raised by the intersex persons that they cannot perform Umrah or Hajj with CNIC Cards having gender Mark â€œXâ€, is a very serious issue, therefore, National Database and Registration Authority (NADRA) must develop some rules or criteria of issuing CNIC Cards to Khunsa persons so that they can perform Hajj---Impugned Regulation 13(1) of the National Database and Registration Authority (Application for National Identity Card) Regulations, 2002 had been deleted by NADRA during the proceedings of present petitions through the National Database and Registration Authority (Application for National Identity Card) (Amendment) Regulations, 2022---Shariat petitions were disposed as having become infructuous. Head NotesCase Description Citation Name: 2023 PLD 301 FEDERAL-SHARIAT-COURTBookmark this Case HAMMAD HUSSAIN VS FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice S. 3---Constitution of Pakistan, Art. 203-D---Shariat petitions---Section 3 of the Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act') permitting a person to get his or her â€œgender identityâ€ changed from his or her biological sex in identity documents including with National Database and Registration Authority (NADRA) on the CNIC, Child Registration Certificate (CRC), Driving Licence and Passport etc.---Repugnancy to Injunctions of Islam---Permitting any person, male or female, to change his or her gender in accordance to his or her inner feelings, or self-perceived identity, which may not conform to the sex assigned to that person at the time of birth, will create many serious religious, legal and social problems in society---Right to privacy of females in the society will become vulnerable and can be violated---Such law will pave the way for criminals in the society to easily commit crimes like sexual molestation, sexual assault and even rape against females because it will make it easy for a biological male to get access to the exclusive spaces and gatherings of females in the disguise of a â€œtransgender womanâ€---Blocking the way of evil in a society is the duty of the State under the principles of â€œSadd adh-dhara'i'â€ or the principle of blocking of evil---Hence, S. 3 of the Transgender Persons (Protection of Rights) Act, 2018is against the injunctions of Islam as laid down in the Holy Quran and Sunnah and will cease to have any legal effect immediately as only the biological sex of a person can determine his/her gender identity as male or female---Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to S. 2 of impugned Act, shall also cease to have legal effect---Shariat petitions were disposed of. Head NotesCase Description Citation Name: 2023 PLD 301 FEDERAL-SHARIAT-COURTBookmark this Case HAMMAD HUSSAIN VS FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice S. 2(1)(n)(i)---Constitution of Pakistan, Art. 203-D---Shariat petitions---Intersex person---Medical procedure to treat any physical or biological infirmity---Repugnancy to Injunctions of Islam---Islam promotes protection and promotion of life or Hifz al-Nafs, and, protection and promotion of progeny or Hifz al-Nasl, which are two of the five basic goals of Shariah (Maqasid Al Shariah)---Therefore, on the basis of these two principles of Shariah, the medical treatment of intersex persons to treat any physical and biological infirmity in their sexual organs and reproductive system is not only permissible but desirable under Shariah Law according to the Islamic injunctions---In accordance with these principles of Shariah, any medical treatment and cure of intersex persons which helps them in their complete sex affirmation as either male or female is preferable under the principles of Maqasid Al Shariah. Head NotesCase Description Citation Name: 2023 PLD 301 FEDERAL-SHARIAT-COURTBookmark this Case HAMMAD HUSSAIN VS FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice Ss. 7(2) & 2(1)(f)---Constitution of Pakistan, Art. 203-D---Shariat petitions---'Gender identity'---Transgender person---Inheritance, right of---Section 7(2) of the Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act')---Repugnancy to injunctions of Islam---According to the wordings of S. 7(2) of the impugned Act, the share in inheritance of a transgender person shall be determined as per his/her gender declared on CNIC, which means if a woman starts feeling that she is a male person and gets herself registered as a male person in the record of National Database and Registration Authority (NADRA) and accordingly gets CNIC, then she will be entitled to get the share of a male out of the inheritable property---All the directions of Islam regarding division and distribution of inheritance shares are based on the basis of sex of the legal heirs of a deceased; it is the sex of a person, which has the defining status to decide how much share that person will get from the inheritance---Male person cannot get the share of a female person and a female person cannot get the share of a male person---Therefore, the right to inherit as mentioned in S. 7(2) of the impugned Act is against the injunctions of the Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh) and will cease to have any legal effect immediately---Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to S. 7(2) of impugned Act, shall also cease to have legal effect---Shariat petitions were disposed of. Head NotesCase Description

HAMMAD HUSSAIN vs FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice S — 2023 PLD 301 FEDERAL-SHARIAT-COURT

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