Over decades, Pakistan’s women’s rights movements have slowly but surely gained more social and political acceptance (not necessarily, delivery). Unfortunately, the same cannot be said for other marginalised and minority groups, who are still struggling for formal recognition of their equal and dignified right to exist in the Islamic Republic.

Ahmedis, Hazaras, transpersons/khwaja siras, religious and ethnic minorities … it is no coincidence that they are all confronted by the same set of opposition — nationalists, conservatives, the organised theocrats and the pious, the religious institutions of the Federal Shariat Court (FSC) and the Council of Islamic Ideology (CII), and the most opportunist emergent group of virtue signallers — pious showbiz and fashion celebrities.

The most vocal opposition to transgender persons’ rights in recent times has been the Lahore-based fashion designer, Maria B. So how does such self-righteousness in the name of saving Islam translate into an injustice?

Simply put, opposing the Transgender Persons (Protection of Rights) Act 2018, isolating and campaigning against a weak community on the basis of their identity — religious, ethnic, sexual, secular or gendered — is to paint a target on their backs. It is bigotry and majoritarianism under the guise of piety.

Over the last few decades, feminists, human rights and trans activists have researched and advocated for recognising the multiple dimensions of sexual and gendered identities beyond the binaries of male/female and hetero/homosexual.

These include non-binary, non-conforming sexual identities such as intersex, hermaphrodite, bi-sexual, transsexual, homosexual and so on. Then there is a similar range of gender variant and fluid identities that include khwaja siras, khusras/hijras, pan-, poly- and transgender persons (male or female presenting) and a host of other culturally specific ones across the world.

In fact, according to Dr Mehrdad Alipour, a scholar of Islamic Studies at the Utrecht University in the Netherlands, “in the Pre-modern period, Muslim societies appear to have culturally recognised gender ambiguity which can be seen through figures such as the khāsī [castrated human males], the hijra [people who are born with male sex organs and raised as boys, but after becoming adults they assume a female identity], the mukhannath [effeminate men], the mutarajjul [women who try to resemble men in clothing and speech], the Khunthā [people who possess both or ambigu-ous male and female sex organs or genitals] and the mamsūḥ [persons who have neither male nor female genitals]”.

The limits of conscientious objections

Maria B’s assertion that “all religions” forbid or debunk the concept of ambiguous sexuality or gender identity is a fallacy, to say the least. As evidenced by Dr Alipour’s research, Islamic tradition has a distinct legal legacy regarding trans- and inter-sexualities.

Predominantly, intersex surgeries are permissible under Islamic fiqh and a continuing tradition because they bring out “the hidden genus” of the body. It is over non-intersex surgeries that differences or silence persists. However, nowhere across Muslim contexts is this some settled historical or legal principle or some clean cut, unambiguous or resolved practice. So, what does Maria B know that relevant Islamic scholars, academics, trans activists or researchers do not? (Not a trick question).

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The most interesting corpus of work on Muslim sexualities is to be found by Iranian scholars, who note that Ayatollah Ruhollah Khomeini’s religious fatwas and opinions weighed as law on all subjects, including on transpeople, dating from the 1960s. Interestingly, his original prima facie (al zahir) argument was that intersex/hermaphrodite transpeople are not obligated to reassign their sex. This became a legal loophole for trans people to get certificates of transsexuality without hormonal or medical change.

The gray areas for Muslim transsexuality is rooted in the discrepancy between fiqh and modern law. Sex reassignment is a painful, long series of surgical and hormonal procedures. At which stage then, is a trans person legally sex reassigned?

This is biopolitics — requiring bodily proof for the right to exist. It’s also futile because the sole purpose of life for many people of any variant sex, gender, or identity is not for the sexual endgame of reproduction, but for self-validation, self-fulfilment, self-worth, soulfulness and autonomy.

Scholars of Islamic fiqh have noted the distinct registers defining sex/gender and male/female under classic Islamic taxonomy of social meaning, as separate from that of modern, biomedical and psycho-sexual definitions of transsexuality.

Many of Maria B’s critics and trans rights activists have pointed out how the two traditions of Islam and modernity have converged over the years and how colonial rule in India sealed sexual categories for disciplinary reasons — to tame the sexual deviant native (including, cataloguing tawaifs and khwaja siras into courtesans and eunuchs). The purpose of settling ambiguity was to claim western scientific superiority over indigenous praxis.

But a caution here against the lazy and convenient rhetoric around colonial blame and indigenous alterity — all these endeavours at policing diversity were in collaboration with indigene men.

Under Mughal India, while the khwaja sira enjoyed social and courtly status, these were not simply and rudely displaced by austere Victorian heteronormativity and homophobia during colonial rule. Not only did Mughal nobility often openly disparage khwaja siras and third genders and manage castration, many rulers also denied them and their families legal, propertied and economic autonomy.

Furthermore, in British India, the collaboration of native scholars with orientalists to construct sexist and casteist social, medical and forensic sciences is well-known. In Iran, an entire discipline — The Compliance Project — that merges biosciences with sciences of religion has been developed by clerics to develop a hegemonic narrative around female/woman/feminine and male/man/masculine distinctions as a global truth. Good luck decolonising all of the above with Islamic feminism, pious agency or any other ‘authentic’ excavatory tool.

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Medical procedures for sex change that are prescribed by the state or anyone other than the person seeking it, are motivated by this logic of shifting from doubt to certainty — a move that comforts modern states, governance and necropoliticians [a term coined by political historian Achille Mbembe to describe a system that uses social and political power to dictate how some people may live and how some must die].

The need to assign a person of ambiguous genitalia a ‘ritual gender/sex’ is so that they follow the rules of one gender/sex. Who benefits from this, except the functionalist political and legal elites and high priests and priestesses of the majority?

Misplaced hostility and benevolence

Afsaneh Najmabadi, Professor of History and of Studies of Women, Gender, and Sexuality at Harvard University, argues cogently that science solves problems based on cause, while in Islamic fiqh problem-solving, the cause has no relevance. So, under Islamic laws, the rules and rulings can change as the subject-matter changes.

This is both opportunity and a problem for rights-based politics and for legal process, which is why, most activists from Pakistan’s feminists and left rely on (and adapt) universalist and secular principles, rather than navigating on the religious turf that is replete with layers of compelling patriarchal fundamentals, influences and histories.

Transactivists, however, find more strategic worth at this defensive stage by appealing to religious history and cultural specific spirituality. They’re also fighting in a post-secular context that has no brief for ‘Western’ sexual or secular autonomy.

Generally speaking, in Muslim contexts, trans people have asked to go by identities as defined not by gender/sex of the body but by the soul — a spiritual sense, self-identity, nafs — whatever they claim to feel.

Trans people often disaffiliate as same-sex or homosexuals or “LGBTQ people”, who may follow similar rituals observed by the transgender community. Interestingly, in some cases, rituals drive identity and this is what haunts the Maria B necropoliticians and pietists.

Pagan rituals, sexual preference, desire and performance threaten public order, chastity, and prescribed ethical living, but for all their moral outrage, these moral angels hold no concern for abuse and violence. Instead, they blame the victims with the flawed logic that non-conformist people, including trans people, are faking it and risking their own lives.

Transphobia in Pakistan (or Iran) doesn’t come from feminists or trans-exclusionary radical feminists (TERFs), as is the debate in Western contexts; instead, it is hostility towards homosexuality that folds back on transsexuals, even as they disavow that affinity. The same applies to allegations of their ‘western’ affiliation even as they refute the label of ‘trans’ and claim a legitimate natural place in Islamic tradition as ‘khwaja siras’. Clearly, it doesn’t work.

The Transgender Persons (Protection of Rights) Act 2018 was simply another futile theoretical tool that would have allowed an academic compliance to the Constitution for these citizens.

It certainly was not going to guarantee the safety of their lives or make their sexual freedoms normative. The real fear of transgender persons’ claim to womanhood should not be about how this will corrupt the moth-eaten moral fabric, but about the risk and vulnerability that they are willing to adopt when they voluntarily seek to become a woman instead of a man in Pakistan.

B is for biology

Like most identities, gender identity is stabilised by the ‘Other’.

For Maria B, the bureaucracy of necropolitics requires her to announce her identity via her Twitter handle as, ‘ADULT HUMAN FEMALE’ (not a woman).

Perhaps, the ‘B’ stands for biology, which she claims drives her identity, not her gender. This invites corrective comments — from the benign observation of how gender socialisation, not biology, steered her into a career in women’s fashion etc, to more conspiratorial criticism about her political purpose that seems linked to organised rabble rousers with nefarious anti-minority agendas.

The overwhelming concern of conscientious objectors is always wrapped in altruism but somehow the concern is not for the social welfare, living wage, or employment opportunities for the target community but about burning issues like which toilet they will use or, the everyday likely risk of confusion over which organ transplant transgender persons may receive.

If Maria B had appealed to the trans community to not identify as women because that invites sexual exploitation, violence, harassment, honour killings, that would be genuine concern.

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But her concern is for abstract morality, not humankind and that too, a conceit of the Victorian variety. At least the clerics and the FSC have genuine anxiety over potential mass conversions to male-presenting transpeople who will demand male shares of inheritance in lieu of the lesser Shariah share that is due to ADULT HUMAN FEMALES. If I were an organiser of the Aurat March, the Mera Jism slogan would promote a whole new anxiety-causing angle.

One of the most impressive achievements of women’s movement in Pakistan has been the reform of the Zina law in 2006 (which has since been challenged at the FSC). It’s an incredible milestone to reform a law after 30 years of dogged feminist activism. The same kind of reform is unimaginable in the current milieu of defensive apologia over religious agency, promotion of Islamic feminism and pious women who discredit feminism and scholarly preoccupation with faith-based identities and dismissal of secular activism, rights and possibilities.

By 2014, India, Nepal, and Bangladesh had all officially recognised third gender people as citizens deserving of equal rights. The Supreme Court of India even stated that ‘it is the right of every human being to choose their gender as a human right’.

Today, Pakistan not only lags behind on nearly all socio-economic indices in the world and in South Asia specifically, but also on legislation and rights of transgender and sexually diverse communities.

Unfortunately, Pakistan’s minorities are unlikely to make similar gains because freelancing moral crusaders like Maria B have flipped to seek redemption via social media performances and the state is fully invested in the piety-populism project. This makes the right to equality and dignity for marginalised citizens a much harder and diffused battle than even state-sponsored theocracy.