The Oppressed Truth

The Oppressed Truth: The Story of Shumail and Shahzina

After General-President Musharraf dismissed Pakistan's chief justice, who has been publicly critical of his policies, on unconfirmed allegations of misconduct in March, the nation's judiciary constantly made the news. Every day the headlines carried word of another street protest in another major city with overwhelming support among Pakistan's liberal elite for the judiciary despite the violence and upheaval. Since then, Chief Justice Iftikhar Mohammad Chaudhry has been reinstated by the Supreme Court, in a seeming statement of justice prevailing over dictatorship. While this struggle has been going on, there has been another cause for spotlight on Pakistan's judiciary—one that reveals that the courts in Pakistan are still quite capable of spewing out their usual (in)justices in a land where laws get enforced creatively and selectively.

I am talking about the case of Shahzina Tariq and Shumail Raj, which has woken up the Pakistani liberals and grabbed the attention of the queer Muslim community at large. The couple from Faisalabad was charged by the high court of the city of Lahore with the act of lying to the police and the courts about who they "actually" are; Shumail was born female and underwent a sex change operation before marrying his cousin Shahzina. It is undisputed that Shahzina was aware of Shumail's sex change at the time of their marriage. It has been reported that theirs was a marriage of convenience as well as love—Shahzina was also to be sold into union to her father's debt collector. The couple had commenced the marriage rites in accordance with Islam's requirements, but had not obtained the blessings of their parents, which is not so much an Islamic rite as it is a cultural appendix. As in many elopements, Shahzina and Shumail did not have an easy time; they were hounded and harassed by the bride's male family members. After appealing for intervention by the police, the couple found that instead they had become the targets of the investigation—for perjury and an "unnatural act" (under Section 377 of the Pakistan Penal Code).

According to Rana Sajjad Hussain, the lawyer heading the defense team for the couple, Pakistan does not currently have any laws on the books that punish same-sex unions (though this was not even such a union). As such, the Court did not ultimately find the couple guilty of any "unnatural act." Instead, the Court got creative and implicated the couple on charges of perjury, stating that Shumail had "lied" to the Court about his gender designation, and thereby indirectly ruling and punishing the two as a "same sex" couple. The couple was sentenced to three years in prison and fined Rs. 10,000. To add insult to injury, Shumail was confined to a women's cell block until his mother was able to post bail on his behalf.

It seems to me that the case has also been tried by another judge and jury—the public and the media. The debate among the Pakistani literate elite (in lieu of an organized and influential Pakistani queer community) through numerous newspaper articles and the opining of television personalities has not been framed along gender identity so much as sexual identity. The usual "liberal" bias of these specific publications, (i.e. Dawn and Daily Times) notwithstanding, the terminology used ("she-couple, "same-sex couple") has mistakenly ascribed homosexual identities to the couple rather than the gender identity which is at issue. A few articles have used the outdated term, "transsexual" and the derogatory term "transvestite" (the accepted terms are "transgender" or "transman" which apply here and "cross-dresser," which does not apply here). For example, Fatima Bhutto wrote in The News (International), "They [the couple] chose not men, but each other." She further stated, "The prisons would be full if we were to make a precedent of jailing people for lying!" The few supporters of Shumail Raj, including some medical professionals, have compromised the gender identity of Shumail Raj by making the concession that he had told a lie or by framing his situation as a "disorder." In an article for Dawn, Farhat Moazam, M.D. professor and chairperson of the Centre of Biomedical Ethics and Culture (CBEC) at the Sindh Institute of Urology and Transplantation stated, "Based on my experience as a pediatric surgeon, newspaper reports I have read suggest a strong possibility that Raj may have been born a male pseudohermaphrodite with ambiguous genitalia, in other words, an intersex individual. The other possibility, of course, is that Raj has a transgender condition [italics added for emphasis]."

What is so perplexing about this situation is not the imposition of western colonial homophobic and transphobic laws and attitudes (even among the "educated," which tends to imply "educated according to western philosophy") nor is it the expected conflict between gender expression and Islamic tradition. Shiite legal theory supports female-to-male and male-to-female gender transitions. It is not even the double messages sent by the General-President about "modernization and enlightenment" as he ignores human rights issues. What I am so damn perplexed by is the definition of "lying."

It is conceding defeat if we acknowledge that whatever the couple had said was a "white lie," told for the sake of love. This unfortunately is a misleading argument, no matter from which "liberal" or "elite" corner it originates. Indeed, the couple never lied, and Shumail and Shahzina should fight for the right to a fair trial and judgment. Whatever the headlines and whatever the Lahore High Court may call them, they were not a "same sex" couple. Shumail Raj may have been born and designated a "woman," but he underwent a gender transition, both mentally and physically, in order to become what he felt he already was—a man. This is the truth and no one, not even the court, has the right to deny this truth.

It doesn't require studying the modes of oppression at great length to understand that this case delineates the cross section of transphobia, sexism and classism. It is easy to connect the dots. What are the rights of the transgendered in a poor nation like Pakistan? Surely, it was justice enough that the couple was not hanged (by the same institutions that were meant to protect them)? Some would say, "Live and let live." What they mean is, "We will let you live as long as you don't make any noise." But then, we as a society would already be conceding defeat—what is the point of "Live and let live," when we "Let live" in persecution and humiliation?

On June 28, 2007, the couple was granted bail. Shumail and Shahzina now wait for their appeal to be heard by the Supreme Court, where the Chief Justice has since been reinstated. It will be interesting to see whether a country rocked by protests over the fate of the judiciary is likely to give much thought or support to the plight of one wrongly humiliated, tortured and imprisoned couple. Perhaps, Iftikhar Mohammad Chaudhry's Supreme Court will do well to remember what it's like to be falsely accused and creatively punished.

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