Saadia Toor, "Gender, Sexuality, and Islam under the Shadow of Empire"
(page 6 of 7)

The Case of Raj/Shahzina and Shamail[36]

Let us now turn to the recent case in Pakistan involving a transgender couple, or the 'she-couple' as they were dubbed by the Pakistani media. In September 2006, Shahzina Tariq and Shamail Raj, cousins and long-time sweethearts, were married in Faisalabad, a medium-sized city in Pakistan's Punjab. Shamail was born female but, in his own words, had always felt that he was a man in a woman's body. This realization was intensified when, at puberty, he began to develop breasts and a beard. He ultimately decided that he needed surgical intervention in order to live as a man and with the support of doctors and a psychiatrist in Faislabad, he first had a mastectomy and then later, in 2006, a hysterectomy. Shahzina and Shamail's decision to marry at this time was in part determined by the realization that Shahzina's father—Tariq Hussain—was determined to marry her off to a man to whom he was considerably in debt.

The marriage not only did not end the harassment, it increased it. Hussain and the rest of his family charged Shamail with abduction (a standard tactic by families in such cases of 'love marriages'), and several cases of fraud. After a favorable decision from a lower court in Faislabad failed to cease the harassment, the couple made their way to Lahore and sought the help of an advocate of the Lahore High Court. However, Shahzina's father's testimony at the first hearing in which he charged that Shamail was a woman, turned the tables on them. The judge ordered a physical examination by a medical team, which reported that although Shamail was "a well built muscular person with mustache and beard and ... a hoarse voice,", he was nevertheless physically a woman; the team, however, proposed more tests. This turn of affairs changed them from complainants into defendants, because if Shamail were declared 'a girl' their earlier sworn statements would amount to perjury since the basis of the couple's writ application was that they were legally married.

Consequently, the judge issued a notice requiring them to show cause as to why they should not be charged with perjury under Section 193 of the Pakistan Penal Code. Frightened at this turn of affairs, the two went into hiding. Given that they had missed two hearings of their case, the judge issued non-bailable arrest warrants for them, which resulted in their eventual incarceration. At the trial, they were again asked to show cause as to why they shouldn't be charged with Section 193 and Section 377 ('unnatural offences'). Section 377 covers only penetrative sexual acts, and the law in Pakistan (both Islamic and secular) is silent on the issue of lesbian relationships, and so the court eventually dropped this particular charge. They were, however, both charged with perjury but given lesser sentences of three years each. The entire process—from their filing a petition against Shahzina's father in the LHC, to their sentencing—took all of 25 days. What is crucial to note about this case is the relative absence of arguments couched within the rubric of 'Islam'—Shamail was charged with perjury under the Pakistan Penal Code, and not under 'Islamic law.'

As it can be imagined, their case turned into a public debate over homosexuality (specifically lesbianism), and (trans)gender. This was especially interesting because Shamail was a rare figure—a female-to-male transgendered individual, whereas it is male-to-female transgender/transexuality that is the most visible and therefore familiar in Pakistan.

A prominent feminist activist (Nighat Said Khan) heard of the case and got involved soon after the couple arrived in Lahore, and was instrumental in getting them a new lawyer for their appeal to the Supreme Court. Although by the time the case came to be heard, it was expected that the Supreme Court would rule in their favor, the judgment itself was a pleasant shock in the way in which it drew on the presence of the figure of Hermaphrodite in Ancient Greece to Islam, the court dismissed the charge of perjury against Shahzina and Shamail, and granted them bail. In their petition the couple had pleaded that they could live together under their own free will and volition even without entering into marriage. By its action, the Supreme Court effectively upheld the right of transgender/transsexual people to live dignified lives free of harassment.

Ironically, while the mainstream media was busy discussing this case, and while the public discourse regarding it was (overall) surprisingly positive, the liberal secular intelligentsia and feminist and human rights organizations maintained a studied silence on the issue. There were no public statements from either the Human Rights Commission of Pakistan, for example, nor from Asma Jahangir or her sister Hina Jilani, who (as we've seen) are usually in the frontlines of civil rights cases in Pakistan, especially those involving women. The justification, as expressed privately to Khan, was the concern that the issue was so volatile and scandalous that taking a public position on it would compromise their ability to do other civil rights work. The Women's Action Forum was generally sympathetic but even its public statement was a while in coming.

Since this precedent-setting case, there have been several positive judgments—in one, the court ruled that an adult woman could live with another adult woman (this had been challenged by the parents of one of the women), and another which upheld sex-change as legal. And since 2009, the newly reinstated Chief Justice of Pakistan has taken suo moto notice of the problems that transgender people face. In the first landmark decision passed in April 2009, the Supreme Court of Pakistan ruled that transgender people could put E (for eunuch) as their gender designation on the National Identity Card and other government documents. The issue was discussed with a great deal of sympathy by the media—which was surprising in itself given the commercial media's penchant for salacious and scandalous gossip-as-news. What became clear through the course of this case was how well-organized and politically savvy the hijra community in Pakistan actually is.[37]

A framework in which Pakistan is an essentially 'Islamic' society, and Islam as essentially homophobic, cannot explain this case, just as it cannot explain why one of the most popular television shows in recent Pakistani history was a celebrity talk show hosted by Begum Nawazish Ali, one of the several drag personas of Ali Saleem. Saleem first shot to national fame through his inspired impersonations of Benazir Bhutto on a satirical television show focused on politics. The guest list for the Begum Nawazish Ali show ranged from film and fashion personalities to major political figures.[38]

What these cases from Pakistan illustrate is that Islam is not the overarching motor within purportedly Muslim societies that mainstream discourse would have us believe. When they prove inconvenient, even codified Islamic laws are summarily sidelined, ignored or glossed over. Thus, what a discourse premised on Islam as a totalizing force misses (or cannot account for) is the opportunistic way in which Islam is deployed and—crucially—how it is discarded when it becomes inconvenient. So, for example, honor killings are justified not through a recourse to Islam, but to 'tradition' and 'custom' as it was done in the Pakistani Senate in 1999. What this framework also missed is that, in fact, sometimes the rights given to women under Islamic law render them more vulnerable to customary practices. There is, for example, the custom of haq bakhshwana in rural Punjab wherein the daughter of a propertied family is 'married' to the Quran—or, in some cases, to a tree—so as to prevent her share of the family property transferring to her husband's family. This custom arises only because, under Islamic law, women have rights in family property. In this case, the issue of property as it pertains to women is explicit. In fact, I like to refer to it as the problematic of 'women and/as property': that the status of Pakistani women lies at the nexus of the fact that they are both the property of their kin (symbolically and sometimes literally) while having rights to property themselves. What this means is that, at the very least, we need to switch to a framework that understands religion, like culture, as an ideological toolbox alongside other ideological toolboxes.

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