Gender identity is perhaps the most important aspect which determines the psycho-social behavior of humans. A gender identity crisis not only leads to a problematic social life but also lowers the self-esteem of an individual, which may potentially lead to his socio-economic and political alienation. Normalcy is defined as conformity to prevalent norms of the majority.
The binary gender definitions serve the purpose of the dominant majority and hence, the third gender, the transgender, do not fit in the binary gender mainstream. The struggle for mainstreaming the transgender persons is an on-going phenomenon around the world. However, their full-fledged acceptance into the gender codes remains to be achieved.
Efforts for mainstreaming the transgender persons in Pakistan have shown some progress in recent years through judicial decisions and legislative instruments. However, despite fundamental guarantees under the Constitution of Pakistan, which prohibits discrimination based on gender, special laws have had to be enacted calling for affirmative action by the government.
It used to be a regular tradition all across the sub-continent at the birth of a child Khwaja Saras used to celebrate by dancing to welcome the newborn. People used to reward them in cash or kind that used to be the primary source of their livelihood.
This alludes to misplaced state priorities regarding affairs of the transgender community. Moreover, it also shows that the societal will as represented in the Constitution, is perhaps, no more than a theoretical aspiration because how society treats transgender persons in real life is very different.
If we look at the history of the transgender community in the sub-continent, known by the term ‘Khwaja Sara,’ they held a special recognition in the society during the Mughal period, when they were employed as guardians of the ‘Zanan Khana’ in palaces. Moreover, they were also respected by the community, for superstitious as well as religious reasons.
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It was generally believed that their prayers would not be turned down since they were devoid of committing basic sins. Furthermore, it used to be a regular tradition all across the sub-continent at the birth of a child Khwaja Saras used to celebrate by dancing to welcome the newborn. People used to reward them in cash or kind that used to be the primary source of their livelihood.
Although it was not social mainstreaming in the strict sense of the term, however, the societal response towards transgender persons was probably more receptive, and their life was proportionately less stigmatized as compared to today. Over time, the socio-economic and political role of the transgender community in the sub-continent changed drastically.
A significant stimulus was the passage of the Criminal Tribes Act, 1871, during the British era, which placed the transgender communities in the category of criminal tribes, thereby, alienating them socially. It remained in force till 1947 after which, the respective legislatures repealed it.
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Simultaneously, the gradual rise of the middle class and technological innovations over time brought in alternatives to entertainment and other social roles which used to be traditionally taken up by the transgender persons. This curtailed their economic prospects, and given their already clichéd social status of an anomalous existence; some resorted to earning their living through beggary, becoming drug peddlers and even selling sex.
It is in this context that the transgender community in Pakistan has raised its voice to seek to mainstream. They have asked to be provided socio-economic, and political rights, from the state and acceptance of their identity, by the society at large, as equal citizens of the state.
Constitutional Petition No. 43 of 2009
The general provisions of the fundamental rights which are given under the Pakistani Constitution can only be enforced through the courts. Therefore, the first and the most profound court judgment which explicitly recognized rights of transgender persons in Pakistan was given by Supreme Court in 2011, in the Constitutional Petition No.43 of 2009 titled Dr. Aslam Khaki vs. SSP (Operations) Rawalpindi.
This judgment emphatically provided legal recognition to transgender persons who are commonly known as eunuchs in Pakistan. It recognized their need for separate identity as the third gender and directed the National Database and Registration Authority (NADRA), Pakistan, for registering them with their distinct identity beyond the gender binary.
The gradual rise of the middle class and technological innovations over time brought in alternatives to entertainment and other social roles which used to be traditionally taken up by the transgender persons. This curtailed their economic prospects, and given their already clichéd social status of an anomalous existence; some resorted to earning their living through beggary, becoming drug peddlers and even selling sex.
The Supreme Court of Pakistan also recognized their marginalization and called upon federal and provincial governments to take necessary measures. These were to be done on a priority basis, to address issues of transgender persons related to their socio-political and economic rights.
It also directed to provide mechanisms for the welfare of transgender persons to mainstream them into society. Though the judgment was declaratory in nature; however, it specifically decided upon two fundamental points of law. First, it provided for the separate recognition of transgender identity by the state authorities.
Second, it specifically granted the transgender persons the right to inherit their rightful share in both movable and immovable properties. It called upon the concerned state functionaries to ensure its enforcement by taking proactive measures in this regard.
The Transgender Persons (Protection of Rights) Act, 2018
Within this context, Pakistan’s parliament legislated upon these matters and passed a bill which became an act of parliament on May 18, 2018. It received the assent of the president and was published in The Gazette of Pakistan on May 24, 2018. The Act contains seven chapters and 21 sections.
The definitions given under the Act are exhaustively comprehensive and cover nearly all categories of transgender identities. The Act contains rights of transgender persons under chapters II, III and V. The second chapter solely focuses upon the right to recognition of the identity of transgender persons. The third chapter enlists specific prohibitions against discrimination towards transgender persons.
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Chapter V of the Act provides for transgender persons’ rights: the right to inherit, right to education, right to employment, right to vote, right to hold public office, right to health, right to access public offices and right to property.
Moreover, section 16 of the Act re-affirms the unequivocal availability of any of the fundamental rights given under Part II of Chapter I of the Constitution of the Islamic Republic of Pakistan, to transgender persons. This article focuses on the following five categories of rights of transgender persons and analyzes the provisions of the Act related to them.
Right to identity
The marginalization of transgender persons is considered to be rooted in the persistent denial of the most fundamental right of gender identity. While, the Pakistani Constitution prohibits any discrimination on the basis of gender; however, for transgender persons, the essential issue had been the absence of alternative gender identity in a gender binary society.
Realizing the need to address this issue, the Act has laid down greater emphasis on the recognition of the status of transgender persons. It has provided their right of identity under a dedicated chapter; this is the founding right from which all other rights flow out. Section 3 of the Act grants the right to a transgender person to be recognized as per his or her self-perceived gender identity.
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It is important to note that the right to recognition of identity as a transgender person is restricted to the self-perceived gender identity and does not include the gender expression, which is based on the perception by others.
Moreover, the Act also guarantees the protection to the identity of transgender persons against harassment under section 5 whereby, harassment of transgender persons both within and outside the home, based on their sex, gender identity, and gender expressions has been prohibited.
Right to education
Lack of access to education arising out of the societal neglect and social stigmas has inhibited the mainstreaming of the transgender community in Pakistan. Transgender persons in Pakistan customarily live in their own communities under the guardianship of their Gurus, as their parents often abandon them at tender ages.
Therefore, the constitutional rights to education guaranteed under Article 25-A of the Constitution for free and compulsory education required re-affirmation under the Act vis-Ã -vis the transgender persons especially after the legal recognition to transgender identity by the Supreme Court in the Constitutional petition No. 43 of 2009.
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In that context, the Act, under section 8, prohibits any discrimination against transgender persons in acquiring admission in any educational institutions, public or private, subject to fulfillment of the prescribed requirements.
Additionally, under the same section of the Act, prohibitions against discrimination have been imposed on any opportunities for sports, recreation, leisure activities and any other positive externalities associated with education, based on person’s sex, gender identity, and expression. Under section 4 of the Act, it is prohibited to discriminate against a transgender person and deny, discontinue of, or treat him or her unfairly in educational institutions and services thereof.
Right to employment
According to a study conducted by LEAD Pakistan, social discrimination in employment is one of the main factors of involvement of the transgender persons in sex work. Unfortunately, the inevitable entrapment of many Khawaja Saras in prostitution reinforces the stigmatization of the whole community as outcasts.
Abandoned by the family, unable to obtain proper documentation, education, and employment, many transgender children take up sex work to survive in an inhospitable environment. In that contextual framework, the Act under section 9, builds upon the right to employment guaranteed under Article 18 of the Constitution by re-affirming the non-discrimination against any transgender person relating to matters connected with the employment including, but not limited to, recruitment, promotion, appointment, transfer, and other incidental issues.
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It also protects the adoption of any lawful profession or occupation and conduct of any legal trade or business by the transgender persons. Moreover, under section 4 of the Act, safeguards have been provided for discrimination against transgender persons in denial of access to any opportunities of employment or any unfair treatment in government or private establishments, organizations, institutions, departments, and centers.
Right to health
To respond to the need for equal access to healthcare facilities, the Act, under section 4(d) prohibits the denial or discontinuation of, or unfair treatment in, healthcare services. Section 12 of the Act, categorically calls upon the government to review the medical curriculum and improve research for doctors and nursing staff to address specific health issues of transgender persons in cooperation with the PMDC.
The government has been asked to facilitate the access of transgender persons, by providing them a safe and enabling environment in hospitals, and ensuring transgender persons get access to all necessary medical and psychological gender corrective treatment.
Right to inheritance & property
One of the critical issues dealt by the Supreme Court, while hearing the Constitutional petition No.43 of 2009, was its decision on granting inheritance rights to transgender persons under the relevant laws and calling on the government to undertake proactive measures to ensure implementation.
In continuation to that, the Act, under section 7, has re-affirmed their right to inherit the due share in the property under the law of inheritance as per the gender declared on their Computerized National Identity Card (CNIC). The same section of the Act also lays down the procedure for the determination of their share.
Enforcement Mechanisms
Since the higher courts in Pakistan are empowered under the Writ Jurisdiction to enforce all fundamental human rights guaranteed under the Constitution, therefore, the ultimate enforcement of transgender rights, remain vested in the High Courts and the Supreme Court of Pakistan.
However, judgments of the higher courts and provisions of the Act of 2018 have repeatedly called for the government functionaries to take affirmative actions for safeguarding rights of transgender persons. Some enforcement channels evolved on the executive side, as derivatives from the court judgments and implications of legislative provisions on the subject.
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For the purpose of this study, it may be appropriate to discuss these enforcement mechanisms under two categories. Firstly, those institutions which have been specifically tasked to perform functions of enforcement of rights of transgender persons under the Act; and secondly, all other enforcement channels which have emerged as derivatives from the court judgments, the Act of 2018 and other policy directions of the federal or any of the provincial governments.
While looking into the domain of provincial governments, we shall only restrict ourselves to the province of Punjab as the referral point for the scope of this article.
The Transgender Persons (Protection of Rights) Act, 2018
In chapter VI titled Enforcement Mechanism, if we breakdown different parts of section 18 of the Act, it is clear that while three specific enforcement institutions have been designated, all other constitutional, criminal or civil remedies that are available to all citizens of Pakistan under respective laws, the transgender persons are also equally entitled to them.
Provisions of section 18 of the Act are widespread, but, it may be appropriate to briefly describe the institutions which have been mentioned explicitly as designated enforcement bodies for safeguarding rights of transgender persons.
Federal Ombudsman
According to the Presidential Order No.1 of 1983, the Federal Ombudsman is mandated to diagnose, investigate, redress and rectify the injustice done to any person from maladministration of an agency of the federal government which includes a ministry, division, department, commission or office of the federal government or statutory body, corporation or other institution established or controlled by the federal government, but does not include the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court.
While the Act of 2018 has specifically mentioned the Federal Ombudsman as one of the three enforcing bodies for safeguarding rights of transgender persons, however, the institution does not have any dedicated institutional setup to deal with grievances of transgender persons.
National Commission on Status of Women
A permanent National Commission on Status of Women (NCSW) was established through a presidential ordinance in 2000. Subsequently, the National Commission on Status of Women Act was passed in 2012. The role of NCSW is to promote social, economic, political and legal rights of women as provided in the Constitution and in accordance with international declarations, conventions, treaties, covenants, and agreements relating to women.
Although the Act of 2018 has provided for the role of NCSW, to act as the enforcement body for rights of transgender persons, there is no institutional arrangement available in the commission to assume that role.
National Commission for Human Rights
The National Commission for Human Rights (NCHR) was created through an act of the parliament in 2012. NCHR published an interim report in January 2017, on mainstreaming of the transgender persons and safeguarding their rights by calling for the need to bring in comprehensive legislation.
Similarly, another report published by the NCHR, on the marginalized segments of Pakistani society also finds special mention of the alienation of the transgender community. From the analysis of legal provisions of transgender rights in Pakistan, and their assessment carried out in the international context, we can safely draw conclusions that the legal corpus of Pakistan affirmatively, through special legislation, covers all the essential aspects of transgender rights.
The Act, under section 7, has re-affirmed their right to inherit the due share in the property under the law of inheritance as per the gender declared on their Computerized National Identity Card (CNIC).
The entire legal framework in Pakistan offers some of the most progressive legal guarantees available to the transgender community around the world. Instead of getting into controversies of LGBT movements and their demands which go contrary to the religious narrative and attract penalties under the criminal laws of the country, Pakistani law has solidified its grounds on the basis of historical evidence of transgender rights in Islam on principles of social equity.
This has led to legal provisions for recognizing not only the identity of transgender persons but also an elaborate procedure for the determination of their share in the inheritance of family properties.
Gaps in the Implementation of transgender rights
Although the sufficiency of rights of transgender persons in Pakistan leads us to believe that theoretical foundations of the subject are correctly laid, however, these have not translated into enforceable rights as yet. Such gaps have occurred due to the ineffectiveness of enforcement mechanisms provided under the Act of 2018.
It is observed that neither the National Commission for Human Rights nor the office of Federal Ombudsman or the National Commission on Status of Women have designed any enforcement tools specifically for transgender persons, to which they can take recourse for enforcement of their rights.
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The absence of devising any proactive methods to ensure rights of transgender persons is further necessitated, because hardly any members of the transgender community have familiarity with these organizations, as shown in results obtained through a community survey conducted in Lahore. Perhaps, it is one of those flawed provisions of the Act of 2018, in which, these bodies have been wrongly declared as enforcement channels, merely on a presumption of their complaint management responsibilities in case of violations of rights.
It is to be understood that the enforcement of rights is a proactive exercise, and redressing widespread violations is ordinarily reactive. Therefore, these organizations are not primarily designed as enforcement or implementing agencies.
The situational analysis of the enforcement of transgender persons’ rights in the province of Punjab, through its executive arrangements in the shape of high-level cum multi-departmental monitoring committees at the provincial level and district implementation committees, are positive signs that the subject issue is finally getting its due recognition in the government.
However, these institutional designs are still ad hoc arrangements, which may not yield any positive outcomes until, and unless some permanent body is set up to achieve objectives of the Act of 2018, for mainstreaming the transgender community.
Recommendations
The following recommendations are made to fill in gaps identified through this study, which may lead to bringing about improvements in the existing situation.
- Chapter VI, Section 18 of the Transgender Persons (Protection of Rights) Act, 2018, which enlists the enforcement mechanisms may be suitably amended. There is a need to either provide for a National Transgender Council such as the one given in the Transgender Persons (Protection of Rights) Bill, 2016, of India or identify more potent government agencies such as the provincial departments of the social welfare and designate them as the statutory-bound enforcement agencies for rights of transgender persons in Pakistan. Federal Ministry of Human Rights in Pakistan has an administrative tribunal for disadvantaged persons, as one of its attached arms. One policy option is to declare the transgender persons as disadvantaged persons under the respective laws and activate the tribunal to function as the prime body for enforcement of their rights under the Act of 2018.
- There is a definite requirement to sensitize stakeholder departments at federal, provincial and district levels, particularly the health, education, and the land revenue departments. They need to assume roles assigned to them under the Act of 2018, relating to the right to education, health, and inheritance of transgender persons in Pakistan, in a more proactive fashion.
- All the stakeholder departments need to be pressed upon to reach out to the transgender communities proactively. A historically marginalized segment, their familiarity and access to public facilities are compromised due to persistent collective neglect of the society.
- Transgender sensitive advocacy campaigns and training need to be imparted to officials who have direct or indirect responsibilities of enforcing transgender rights. The training should highlight the specific physical, psychological, and other social needs of transgender persons; so that officials handling their matters are equipped with the right information to win the confidence of the community.
- Decades of alienation will take time to be addressed. In the meantime, the government should introduce social protection schemes exclusively for transgender persons, in order to alleviate their sufferings, until such time that their socio-economic rights become effectively enforceable.
Saud Bin Ahsen is associated with a public policy think tank institute and has done Master of Public Administration (MPA) from the Institute of Administrative Sciences (IAS) Punjab University, Lahore. He is interested in Comparative Public Administration, Post-Colonial Literature, and South Asian Politics. He can be reached at saudzafar5@gmail.com.
The views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.Â