Pakistan is in the grip of homophobia after the same sex couple was imprisoned for three years for perjury. The sensational response that this incident received in Urdu and English newspapers highlights our homophobic attitudes, Issues surrounding gender identity and lack of empathy as human beings. Many draw reference to Islamic Laws as well as Pakistani laws dealing with homosexuality. Homophobia is not unique to Pakistan; Western societies are equally unable to grapple with the complexity of related socio-legal issues and social attitudes towards same sex relationships.

Comments suggesting homosexuality as a western issue, outside our social norms & spectrum or a psychological problem needs to be referred to specialists rather than leaving to people who lack compassion for fellow human beings and have a very narrow view of human psychology and issues. People born without a defined male or female biological and psychological identity may suppress their feelings and continue to live with the socially assigned gender identity. However, Pakistani socity seems to lack the capacity to deal with these issues in a humane manner. Generally, such people become social outcasts and this was reflected through the language used by newspapers as she-couple etc.

Keeping our social attitudes aside for a moment, we need to contextualize the question of homosexuality. It's not a new phenomenon and religions have similar views on homosexuality - the only accepted form of gender relations is between a man and a woman and procreation being the prime driving force. Quran has referred to homosexuality on three different occasions:

What! do you come to the males from among the creatures. And leave what your Lord has created for you of your wives? Nay, you are a people exceeding limits.
(Al-Shuara, V: 165-166)

What! do you indeed approach men lustfully rather than women? Nay, you are a people who act ignorantly. (Al-Naml, V: 55)

And (We sent) Lut when he said to his people: Most surely you are guilty of an indecency which none of the nations has ever done before you. What! do you come to the males and commit robbery on the highway, and you commit evil deeds in your assemblies? But nothing was the answer of his people except that they said: Bring on us Allah's punishment, if you are one of the truthful. (Al-Ankaboot, V: 28- 29)

Two important things need to be kept in mind, the accepted and prevalent form of sexual relationship is heterosexual therefore refers to gays and not lesbians. The act of penetration is not involved in this situation therefore; previous works refrained from penalizing or criminalizing lesbian relationships. Current Pakistani laws do not deal with such issues and need serious debate not hastily made moral judgments on issues as well as people concerned. It would be unwise, even to suggest that courts can give capital punishment or life imprisonment in such cases without examining the issues involved. Homosexuality neither is a curse, nor vulgarity spread by local media, or obscenity preventable through prayer and Friday sermons.

Many areas in Pakistan have historically been known homosexuality, therefore suggesting that this is a new phenomenon, is distortion of our own social realities. If religion leaves few things outside the purview of laws, society should also learn to leave people alone and not judge them because they have different choices in life. Hardly have we heard voices of reason, compassion and love, and need to stop punishing people just because they have the capacity to love differently.

In September 2006 Shahzima Tariq and Shamial Raj got married in a medium large city, Faisalabad,in the Punjab, Pakistan. 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 Shahzima’s father Tariq Hussain since he was determined to marry Shahazina to someone he owed considerable money to.

Despite the marriage, or because of it, Tariq Hussain and the rest of Shahzima’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.

Shahzima 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 Shahzima appeared before the Court and gave testimony that Shamial was actually a woman. Shahzima 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, his lawyers and myself that in his mind and his heart he is a woman 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 his 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.

Shahzima and Shamial ‘disappeard’ 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 I am 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 and 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 Shahzima 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. Shahzima 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.

Shahzima 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 Shahzima’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 Shahzima 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. Expenses are still nevertheless high but so far I have been able to withstand it these. Unfortunately human and women’s rights groups have also been silent on the issue as have the ‘liberal/progressive’ intelligentsia, and no feminist lawyers been willing to assist with the case on behalf of Shahzima and Shamial.

Shamail himself is very clear of his gender identity as is Shahzima. “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 Shahzima’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. Shahzima continues to say in Court, to the press, to her legal council and to me 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 a 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. Shahzima 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.

You can send your 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) through the lawyers at;

 nskhan46@yahoo.com
 nskhan@brain.net.pk
 asr@brain.net.pk