Pakistan: Transgender man and his wife imprisoned in Pakistan

Below is the latest and most comprehensive report on the case from Shirkat Gah in Pakistan. It transpires that it was only after the couple filed a writ petition to stop Shahzina's family harassing them, that the father told the court that Shamail was a transsexual. Then the court decided that Shamail had committed perjury as he had said he was a man. Under British common law that Pakistan would have inherited, the charge of perjury can only be brought against a claimant or defendent if they knowingly lie. As Shumail believes he is a man, he cannot have perjured. However, the court in this case is relying on medical reports that conclude he is not a man because although he has had a mastectomy and a hysterectomy, he does not have male genitals. This case clearly has nothing to do with Islam, as the father initially opposed the marriage on purely financial grounds and only played the transgender card when he had failed to harass the couple into a divorce. The question is whether Pakistani law is willing to recognise the right of a transgender person to be the gender they believe they are.

From www.wluml.org
5/06/2007:
A Lahore High Court judge sent Shamial Raj, 31, who had a sex change operation 16 years ago, to Central Jail Kot Lakhpat in Lahore, while his wife Shahzina Tariq, 26, was sent to the female ward of Faisalabad district jail. On the 28th of May the Court decided that there was insufficient evidence to charge Shahzina and Shamial under section 377 (unnatural offences) but they have both been sentenced to three years imprisonment on lesser charges [of perjury].
"In September 2006 Shahzina Tariq and Shamial Raj got married in a medium large city, Faisalabad, in the Punjab. Both of them knew each other since they are cousins. Since they were mutually committed to each other and determined to spend their lives together they decided to strengthen this commitment by framing it within a marital bond. This was to them the most ‘natural’ thing to do. This decision was also precipitated by Shahzina’s father Tariq Hussain since he was determined to marry Shahzima to someone he owed considerable money to.
Despite the marriage, or because of it, Tariq Hussain and the rest of Shahzina’s family continued to harass them and filed several charges against Shamial Raj for kidnapping his daughter and for a number of offences such as fraud. The two of them then approached a lower court in Faisalabad to prevent such harassment. The lower court decided in their favour since they produced their marriage certificate and because both of them were adults. The family continued to harass them to a point where they thought that their lives might be at stake.
Shahzina and Shamial then came to Lahore and found a lawyer, Rana Sajjad Hussain, Advocate High Court, to file a writ petition on their behalf to the High Court to put a stop to such harassment. The case was put before the Kh. Mohammad Sharif Judge of the High Court and the first hearing was set for the 3rd of May 2007. On the 4th of May the father of Shahzina appeared before the Court and gave testimony that Shamial was actually a woman. Shahzina and Shamial did not come to this hearing “because”, their counsel submitted, “they had been threatened the previous night and thought they may be murdered if they appeared in court”. The Judge ordered a physical examination to be done by a five member medical team at the government Services Hospital. The report was to be submitted on the 8th of May.
The medical team reported that while Shamial “is a well built muscular person with moustache and beard and has a hoarse voice” that physically he is a woman. They did however propose additional tests. This report changed the nature of the writ application turning the complainants into defendants. Frightened the two went into hiding. When they didn’t appear on the 9th the Judge ordered the police to arrest them on the grounds that Shamial had stated in Court that he “was a boy” but that the medical examination had proved that he was “a girl” and that therefore he has sworn a wrong affidavit. Further that during his physical examination and later in Court Shamial has admitted that he was a woman. The Court gave notice under Section 193 of the Pakistan Penal Code (perjury) for both Shamial and Shahzina to show cause as to why they should not be prosecuted under this section.
As Shamial tells his story he was born a female but that within himself he knew himself as a man. He has told the doctors, the Court and his lawyers that in his mind and his heart he is a man trapped in a woman’s body. He always felt this way and when at the age of 15 he started developing breasts (as he also started growing a beard) he felt that his life thus far had been spent as a man that he would get a mastectomy. This he had done in Faisalabad by a medical team supported by a psychologist. In 2006 he decided also to have a hysterectomy.
Later that year Shamial and Shahzina got married. Shahzina knew as Shamial says that he is a “transsexual” but both decided that their love and support for each other transcended this. They just wanted to be together. They still want to be together even, as they say, “together in the same jail cell”. Any separation is for them “a death” and they would sooner die than be torn apart.
Shahzina and Shamial ‘disappeared’ after the Court order on the 9th of May. Having missed two hearing of the High Court the Judge issued non-bailable arrest warrants for them. They were arrested by the police soon after and Shamial was interned in the Kot Lakpath jail in Lahore while Shahzina was sent to the Central jail in Faisalabad the city in which her parent live. They were produced in Court on the 22nd of May. The Judge asked them to show cause why they should not be charged under PPC193 (perjury) and section 377 (unnatural offences). The Court directed them to do this by the 25th of May. Since their lawyer Mr. Rana Sajjad Hussain, was not allowed by the jail authorities to meet with them he requested the Court to enforce his clients’ rights to counsel and asked for further time in which he could consult with them. The Court gave him until the 28th of May.
Under section 193 of the PPC (which gives a sentence of up to 7 years) the charges are framed and decided immediately. Charges for section 377 of the PPC, goes for trial. At no point have they been charged or tried for ‘lesbianism’ and nor for their marriage. The law in Pakistan is silent on such relationships and defines no penalties. Islam we are informed while implicitly not sanctioning relationships that are not clearly heterosexual also does not prescribe any penalties. The nikah, or marriage contract in Islam is also a civil contract, that can be withdrawn or annulled by the parties in contract with each other.
On the 28th of May the Court decided that there was insufficient evidence to charge Shahzina and Shamial under section 377 (unnatural offences) and while there were mitigation circumstances under which perjury was committed it would still give (a lesser) sentence on that charge. They were given 3 years each. Shahzina is to be interned in the Central Jail Faisalabad and Shamial in Kot Lakpath jail Lahore. The Court has also ordered that Shamial be examined by a psychiatrist in a private hospital where he is to stay for 4 days.
Shahzina and Shamial will appeal the decision either in an inter court appeal or to the Supreme Court. They will do this as soon as we who are assisting them can give reasonable advice as to which court we suggest they go to. They are of course at a complete loss and stunned with what has happened and the speed at which it has happened. From filing a writ petition on the 3rd of May against them being harassed by Shahzina’s father they find themselves sentence to jail for three years within 25 days.
This case highlights the question of gender identity. Shamial insists that he is a man and Shahzina believes that he is one. That he said under medical examination and in court on one occasion that he is a woman is because as he says that he himself got confused as to what to say under medical examination and because everyone around him confused him. The doctors’ report also mentions him as both a ‘she’ and a ‘he’, and the court orders lists him as’ he/she’ or ‘she/he’. The media in Pakistan has also sensationalized his gender identity and has repeatedly written of this as a “she couple” or “she marriage”. The media questions to him in this vein has as he says only added to his confusion on what to say.
The Judge referred to this a precedent case as indeed it would be in most parts of the world and most people including lawyers have tried to keep their distance with the exception of their lawyer Mr. Rana Sajjad Hussain who has maintained their right to a fair trial. However since it is now such a high profile case and since the law is silent on this issue of late several lawyers have offered assistance. The last Court hearing on the 28th of May was argued by Mr. Zahid Husain Bokhari an advocate of the Supreme Court. Both Rana Sajjad Hussain who has been with them as their lawyer form the beginning and Zahid Husain Bokhari have assisted pro bono as will those who will be appearing in the Supreme Court.
Shamail himself is very clear of his gender identity as is Shahzina. “His soul” as he says “ is male” and that is the only gender he can be no matter how the law and society see him. “It is just that I am imprisoned in the wrong body”. The question for them is how they are to convince a court that their conflicting testimony was not intentional. At the same time both are anxious that Shahzina’s father who has unlimited access to her in Faisalabad jail, will continue to try and pressure or hoodwink Shahzina into making a statement against Shamial. Shahzina continues to say in Court, to the press and to her legal council that she is with Shamail because she loves him and that she cannot live without him. He insists that he cannot live without her. Their commitment to each other in the face of extreme adversity and temptation to take the easy way out should stand as an example of courage for those of us who uphold the right for anyone to live their lives according to their own inclinations and their own sense of being. Shahzina and Shamial need to be heard. They need to be supported and they need to know that they are supported. It is their only sustenance in their respective aloneness. Even if they win the battle in court as they and those of us supporting them hope, they will still need our commitment to ensure that their future is safe and that they can live out their commitment to each other."
Shamial and Shahzina urgently need letters of support and solidarity addressed to them. Your show of support is urgent for them at this time and also for them to use later if and when they need to make a legal appeal.
You can send your letters of support to Shahzina and Shamial and any information that may assist in their appeal (relevant to confusions that may arise in the face of adversity in the lives of transgender or multiple gender identities) via sgah@sgah.org.pk

Shirkat Gah Women’s Resource Centre
Please also write directly to Nighat Said Khan who will take your letters to Shamial and Shahzima in prison:
nskhan46@yahoo.com
nskhan@brain.net.pk
asr@brain.net.pk