The neglected sex
HUMAN rights are inalienable for all individuals, but in Pakistan, they are restricted to sex. The legalization of transgender rights has always been the centrepiece for Pakistan’s society to be at loggerheads.
From time to time, the authorities take steps to grant rights to transgenders, and gradually the same egg on the debate among the masses.
Similarly, the controversy is raised again pertaining to the ‘Transgender Persons (Protection of Rights) Act, 2018’.
Before expanding, it is pertinent to touch upon the ill-treatment and exploitation the transgenders go through in Pakistan.
Haplessly, society treats transgenders as neglected and unwanted sex. This persecution bolsters the other ills under their umbrella.
Mostly, they are socially isolated, face stigma, and acute discrimination, and are coerced to work as prostitutes, beg, and dance to earn money and serve their masters.
Worst still, they are denied all basic human rights. Moreover, having a transgender son, friend, mate, employee, and neighbour brings mockery.
Thus, in a binary model world, where everything from power corridors to language is gendered, the transgender community goes through abysmal oppression.
Unequivocally, the Universal Declaration of Human Rights, ICESCR, ICCPR, grants rights to all human beings and doesn’t limit them to any sex.
Notwithstanding, Article 25 maintains equality of citizens before the law and dissuades discrimination based on sex; the existing laws in Pakistan itself discriminate against transgenders.
Section 8 of the Pakistan Penal Code while defining “gender” restricts it to males and females.
Section 20 of PPC defines the words man and woman as male and female and doesn’t consider the transgenders in the whole Code.
Above and beyond, Article 17 of the Qanoon-e-Shahadat Order 1984 only enables men and women to give evidence in matters related to financial or future obligations.
In a society where such horrors are prevalent, the ‘Transgender Persons (Protection of Rights) Act, 2018’ is a ray of hope for the marginalized minority.
The initial step toward the bill lies in the landmark judgment of 2012 of the Supreme Court in Dr. Muhammad Aslam Khaki’s case.
In this case, the apex court held that transgender people are entitled to the rights granted by the Constitution of Pakistan.
Moreover, it gave legal recognition to the transgender community of Pakistan by directing National Database and Registration Authority (NADRA) to register transgender persons as “third sex”.
Following that, the bill was tabled in 2018 and was passed by the National Assembly on 8th May 2018.
Furthermore, the directions and recommendations were also made to the Social Welfare Department and Provincial and Federal government to introduce policies for transgenders, their inclusion in educational institutions, and providing employment opportunities, among others.
The object and purpose of the said act are to facilitate transgenders and end discrimination against them.
The act prohibits long-drawn discrimination against transgenders. It grants the right to be recognized as self-perceived gender identity and to register the same with NADRA.
Over and above, it provides transgenders with the right to inheritance based on gender identity, the right to education as per Article 25A of the Constitution, the right to employment as per article 18 of the Constitution, and the right to assemble, property, cast vote, and to contest elections.
In addition to this, the act holds the overriding effect over all other existing laws and allows additional remedies for the transgenders to make a complaint before Federal Ombudsman, National Commission for Status of Women, and National Commission of Human Rights (NCHR), in the case of infringement of any right guaranteed.
The amendments were made in the bill with the object of bringing this act in conformity with the Injunctions of Shariah and impeding the legalization of homosexual marriages.
The amendment stressed limiting the bill and conferring rights only on intersex (khunsa) and not to those who go through excision or alterations.
The notion behind is that an intersex is an inborn person who has multiplicative characteristics of male and female, and Islam recognizes such persons.
However, the process of excision, alteration, or declaration of gender on self-perception is inconsistent with Islam.
It was proposed that rather than self-perception, a medical board must be created for the assignment of gender identity.
Above and beyond, section 7 must be omitted and the right to inheritance should not be granted as the Holy Quran under Surah Nisa recognize male and female for it.
Lastly, the amended bill proposes to prohibit gender reassignment surgery based on psychological disorders or gender dysphoria.
As the act is discussed, the misconception of legalising homosexual marriages through this act is currently up for discussion among the masses and netizens.
The said debate is the new normal in Pakistan between liberals and conservatives.
Pakistan was made in the name of Islam and was decolonised from Britain which has influenced the country throughout and kept it in the lurch.
Pakistan’s laws are a mixture of Islamic laws and British laws. As a society, Pakistan is divided. It works under the pressure of liberal and conservative forces.
In the mid of all this, the vulnerable and marginalised segment – transgenders – remains oppressed and inaccessible to fundamental rights.
—The writer is practising lawyer, based in Islamabad.