Global Currents article

Fighting Transphobia: Analyzing the Pakistani Fatwa on Transgender Marriage

The human is a vulnerable category. Constantly policed and regulated by state and non-state actors, this category shelters some human bodies but not others. Disrespect and discrimination based on bodily reality are symptoms of social evils and phobias, ranging from racism to transphobia. While local context matters, globalizing impulses and virtual media reify these evils and phobias across national boundaries. Dislike of and discrimination against transgender persons is an international disaster besetting local contexts. Transphobia is alive in North Carolina with its absurd bathroom laws as it is in Pakistan with its systematic stigmatization of transgender bodies. The heartbreaking story of Alisha illustrates my point about Pakistan, my country of birth.

Who was Alisha? Alisha was an energetic social activist whose gender was illegible in her local context of Pakistan’s Khyber-Pakhtunkhwa Province. The lack of recognition did not keep her from struggling for the rights of sexual minorities, including the struggle to gain legal provisions for transgender persons. But for Alisha this struggle came at a mortal cost. In May of 2016 she was gunned down by a local gang known for harassing and exploiting the transgender (hijra) community. She later died of multiple gunshot wounds in a hospital that was unable to provide her urgent care. The hospital staff delayed her treatment because of confusion about her gender identity. They debated whether her body was to be admitted into the male or the female ward. The fact that human bodies in general move across maleness and femaleness totally escaped them.

This incident reveals the vulnerability of transgender bodies in the Islamic Republic of Pakistan. The tragedy makes one wonder: does Islam condemn or condone such discrimination and disgust? Does Muslim legal teaching care for all bodies? Do Muslim theologians show compassion for all persons?

These questions were met with answers shortly after Alisha’s death. The replies came in the form of a press statement released by a group of Pakistani clerics, namely, Tanzim-i Ittihad-i Ummat (Organization for the Unity of Muslims). The statement endorsed a single Muslim jurist’s legal opinion (fatwa) that contended certain rights, including the right to marriage, extended to transgendered persons within Islamic law. About fifty additional local jurists and theologians signed the fatwa. This statement caught the attention of the international news and social media, where sometimes it was framed as a positive, even a progressive, development. But the media framing hardly paid attention to the substance of this fatwa. It is important to understand what the fifty or so Pakistani clerics signed off on before condemning, condoning, or remaining indifferent to their juro-moral position.

Let us list and then examine the various points communicated by the aforementioned press statement and the attendant fatwa:

  1. According to Islamic law, marriage is permissible between a hijra (khwajasara) with bodily signs of maleness and a hijra (khwajasara) with bodily signs of femaleness.
  2. Ordinary men and women, too, are permitted to marry khwajasaras with unambiguous signs of a single sex.
  3. It is absolutely impermissible for any man or woman to marry hijras (khwajasaras) with bodily signs of both sexes (the khuntha mushkil in Islamic legal terminology).
  4. Islamic law grants inheritance rights to hijras and Parents who disown their hijra children, or those parents who throw them out of their houses, will incur God’s anger and chastisement. Moreover, the local government should also take action against such parents.
  5. Islamic law strictly prohibits the following behavior with respect to hijras and khwajasaras: taunting them, insulting them, mocking them, and debasing them. These behaviors are prohibited because they amount to denigrating God’s creation.
  6. Muslims should perform the funeral prayers for deceased hijras and khwajasaras, just as these prayers are to be performed for ordinary Muslims.
  7. Hijras and khwajasaras are forewarned to observe the divine commandments and to abstain from all evil [lewd] acts.

These seven points sum up the fatwa’s juro-moral position. In general, articulating and disseminating these norms is certainly a step in the right direction. The signatories of the original fatwa issued by Mufti Imran Hanafi Qadiri answered the call of justice with reference to a beleaguered and marginalized community. They extended a gesture of inclusion toward hijras and khwajasaras.

When read symptomatically, the above list of moral directives identifies certain social practices that are especially associated with transphobia in Pakistan: kinship, injurious behavior, rituals of death and mourning, and sexual conduct. These are the places—the home, the street, the graveyard, and the brothel—where members of the hijra community viscerally experience the brunt of a hyper-masculinist and heteronormative social order. By condemning discrimination against transgender bodies in these social arenas, the signatories of this fatwa censured transphobia. They in fact took a positive step.

Yet, this fatwa also bears the mark of the same logic of heteronormativity that authorizes transphobia. The fatwa evaluates transgender bodies using the rubric of male and female bodily signs. It circumscribes the fluidity of the body within the gender binary. While it offers provisional social recognition that becomes available through the institution of marriage to hijra bodies leaning heavily toward maleness or femaleness, the fatwa fails to extend this social recognition to bodies that refuse the gender binary altogether. The fatwa hardly moves beyond the epistemological hysteria of the medieval jurists (from whose legal lexicon it cites the term, khuntha mushkil, or “problematically intersexed”).

But there is hope, even if melancholic. To start with, Muslim jurists and theologians might benefit by studying the complexity of human bodies writ large. This does not necessarily involve reading books by Judith Butler or Susan Stryker. It instead entails cultivating a flexible and creative mode of engagement with local knowledge traditions where Muslim jurists and theologians will encounter both reifications and disruptions of the gender binary. A courageous engagement with tradition—an engagement that sometimes retains, sometimes reconfigures, and sometimes renounces the tradition—is needed in order to make sense of and to appreciate shifting embodiments of sex, gender, and sexuality in the contemporary world.

The turn to the body within Muslim juro-moral thought would necessitate questioning attitudes and assumptions about maleness and femaleness, and how these cultural constructions color a society’s ideas about biology and nature, and therefore of law and ethics. It would also involve moving beyond medieval legal jargon, especially the category of the khuntha mushkil, and listening to how people identify themselves and how they relate to their bodies. These additional steps can make fatwa-authoring organizations more effective allies in fighting transphobia.

 


Photo credit: Wikimedia Commons – a Hijra protest in Islamabad, Pakistan in May, 2008.

Ali Altaf Mian

Ali Altaf Mian is Assistant Professor of Islamic Studies at Seattle University. His fields of research include South Asian Islam, the history of Muslim legal thought and practice, gender and sexuality in contemporary Islam, Sufism and comparative mysticism, continental philosophy, comparative religion, and theory and method in the study of religion.


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