This is an update on the legal status of Shumail Raj, a female to male transgender man and Shahzina Tariq, his wife, who were imprisoned by Pakistani authorities. IGLHRC has followed this case closely and been in regular contact with Nighat Khan, a women’s right’s activist in Pakistan who has been supporting Shumail and Shahzina from the time they were arrested. The following observations are based on information provided by Ms. Khan.
Shumail, 31, had undergone two surgeries to remove breasts and uterus and lived for 16 years as a man. He and his longtime sweetheart, Shahzina Tariq, 26, were married in September last year. Shahzina’s father, Tariq Hussain, who had planned to sell her into marriage to another man to settle a family gambling debt, rejected the marriage and used police officers from their hometown to harass the couple. Shumail and Shahzina sought and received protection from the court but the father’s harassment continued. With the help of a lawyer, the couple went to the High Court for help, at which point, Shahzina’s father informed the judge that Shumail was not a man. Judge, Khawaja Sharif ordered a medical examination, following which he censured the couple for “lying” about Shumail’s gender and consequently also lying about the legality of their marriage (same-sex marriages are not allowed in Pakistan). On May 28, 2007, Shumail and Shahzina were each sentenced to three years in prison and fined 10,000 rupees ($166).
On June 22, an appeal was filed by a Supreme Court lawyer, Babar Awan, who argued that since Shumail had undergone gender re-assignment surgery and his physical characteristics conformed to social and cultural expectations of masculinity, there was no perjury. On June 28, the Supreme Court agreed to hear the case and ordered the couple released on bail set at 50,000 rupees ($825) each.
The Question of Identity
Shahzina’s father, Tariq Hussain, filed a First Information Report (FIR) with the Faisalabad police against Shumail for “kidnapping and inducement to marriage,” “fraud,” “false evidence,” “cheating,” “dishonesty” and “forgery.” He continues to accuse Shumail of deceiving his daughter into a fraudulent marriage although he accepted from Shumail the dowry of 10,000 rupees with a promise of another 100,000 rupees. He has filed a lawsuit against Shumail to nullify the marriage. At the last hearing on July 6, he renewed this plea for annulment. The hearing on this lawsuit is planned for after the summer break.
Ms. Khan explains, “I have tried to the best of my ability to get the charge for “kidnapping and inducement to marry” quashed but so far have only managed to get Shahzina’s testimony to the magistrate in Faisalabad that she was not kidnapped. The other charges of fraud and false evidence brought by the father are still in process. I have asked the lawyer, Senator Babar Awan to help with this but Shumail seems to want to do it through his partner in Faisalabad who knows the police investigation officer.”
The Question of Perjury
The judge in the High Court of Lahore did not accept that Shumail was a man because he lacked male genitals. This rejection of Shumail’s transgender identity justified the perjury charge – that he lied about being a man. The judge then assumed that this was a same-sex relationship which led him to ask both Shumail and Shahzina to show cause as to why they should not be charged for “unnatural offenses” under 377 of the Penal Code which criminalizes homosexuality. This charge was later withdrawn. However, because the judge could not see Shumail as a man, he also could not see the legitimacy of their marriage – another reason to charge the couple for giving conflicting statements in court amounting to perjury.
Nighat Khan observes, “The appeals hearing was a dramatic first because gender identities were being discussed by the Supreme Court.”
Reactions Within Pakistan
In response to an international call for letters of support by various individual activists and organizations, including IGLHRC, Shazina and Shumail received over 800 letters of support, 43 from within Pakistan including12 from local feminist activists.
Some individuals working for human rights and women’s rights non-governmental organizations (NGOs) generated email articles and letters to the media. However, most of the moral support has come from psychiatrists, psychologists and medical practitioners, some of whom have held seminars and meetings, written articles and letters to the press, and participated in three discussions on television. Individuals working for media and the general public have also been sympathetic.
Ms. Khan notes, “If this level of support and momentum is kept up, this could become something of a campaign. Those giving support are very committed to a public debate on gender identities, a debate which in many ways has already started.”
Total expenses related to the case now exceed 10,000 US dollars. According to Ms. Khan, “The appeals lawyer, Babar Awan is handling the cases pro bono but at all levels there are court and other fees and often, even bribes. Most of the costs have been borne by me and the ASR Resource Center (of which Ms. Khan is the executive director). Two members of Women’s Action Forum and young ‘friends’ of Shahzina and Shumail in Lahore donated about $1500. Some others have promised funds.”
Another lawyer, Zahid Hussain Bokhari, hired by Ms. Khan to defend the couple from the perjury charges also provided pro bono services. Unfortunately, as Ms. Khan notes, the lawyer who Shumail and Shahzina hired initially to help them get court protection from Shahzina’s father has taken a substantial amount of money in fees and other costs. She adds, “I am hoping that friends and supporters in Pakistan will contribute… It’s going to be a long haul. ASR and myself are continuing to support their living and other expenses as of now but we cannot do this for much longer.”
Shumail’s and Shahzina’s future is uncertain. The Supreme Court appeal regarding the perjury penalties will take its own course. Doctors and psychiatrists are willing to help with further surgery if Shumail wants it.
The troubling question is whether the couple can stay married. If the Supreme Court chooses not to recognize Shumail’s transgender identity and therefore the legality of the marriage, Shahzina can chose to live away from her family if she wants. There is also no law in Pakistan that says, two “women” cannot live together. But as Ms. Khan cautions, “They need to be very quiet about this. If they are not married and if they are woman and man then society could have a problem.”
Meanwhile, the father who was forcing marriage on Shahzina has not been held accountable by the authorities, and continues to file law suits against Shumail and continues to deny his daughter the right to choose her marital partner.
As Ms. Khan warns, there is danger even after the court makes a ruling. She urges human rights and women’s rights activists in Pakistan to break their silences and address the complex multiplicity of issues that have surfaced because of the case.
Published on August 1, 2007 | OutRight Action International an LGBT human rights organization