The right to recognition as a person before the law is guaranteed in numerous international human rights conventions, and is a fundamental aspect of affirming the dignity and worth of each person. Legal gender recognition is also an essential element of other fundamental rights including privacy, freedom of expression, to be free from arbitrary arrest, and rights related to employment, education, health, security, access to justice, and the ability to move freely.
The transgender community of South Asia has undoubtedly faced deplorable discrimination. However, recently the Supreme Courts of India and Pakistan have attempted to transcend the traditional gender binary by recognizing their distinct gender identity as the ‘third sex’. In 2012, the Chief Justice of the Supreme Court of Pakistan issued a landmark judgment in Dr. Muhammad Aslam Khaki v S.S.P. (Operations) Rawalpindi which gives legal recognition to the transgender community in Pakistan as belonging to the ‘third sex’.
Such a definitive inclusion of a traditionally excluded community under the legal umbrella was expected to gradually debunk the gender stereotypes that have historically functioned to marginalize the transgender community in Pakistan. However, for all practical purposes, the judgment has changed little.
Read more: Rights of Transgenders in Pakistan
Their bodies continue to be the chief site of contestation, problematized by family, society, and the state apparatus, all of which reinforce the rigid gender binary. In contrast, a similar judgment issued by the Indian Supreme Court has had a comparatively positive influence on the social status of hijras in India.
Transgender: Understanding the terminology
It is essentially a word of western origin and is now used as an umbrella term in the sense that it refers to all gender-variant people and includes many different identities. A National Aids Control Organization (NACO) Report considers the term ‘transgender as the symbolic representation of crossing the boundaries, and it has been derived from the two different languages; the Latin word ‘trans’ and the English word ‘gender’.‘Transgender’ has been defined as:
“An umbrella term that refers to all identities or practices that cross over, cut across, move between, or otherwise queer socially constructed sex/gender binaries. The term includes, but is not limited to, transexuality, heterosexual transvestism, gay drag, butch lesbianism, and such non-europian identities as the Native American berdache or the Indian Hijra.“
A report prepared by the United Nations Development Program (UNDP) enunciates that the term transgender is wide enough to include pre-operative, post-operative, and nonoperative ‘transsexual’ people (who strongly identify with the gender opposite to their biological sex), male and female ‘cross-dressers’ and men and women, regardless of sexual orientation, whose appearance or characteristics are perceived to be gender-atypical.
In India, transgender people include Hijra, Kinnar (eunuchs), shiv-shakti, jogappas, sakhi, Jogtas, and Aradhis. Scholars have expressed that in fact, there are many who do not belong to any of the groups but are transgender persons individually. Transgender people may live full-or-part time in the gender role opposite to their biological sex.
The transgender community in Pakistan has faced multiple levels of legal, institutional, and societal discrimination. While, the Constitution of Pakistan protects all citizens by safeguarding their rights, dignity, and status; these rights are not translated into laws and protection mechanisms at the state level with respect to vulnerable groups and specifically the transgender community.
The situation is further compounded by the lack of respect and acceptance for these groups making them social outcasts and depriving them of their fundamental rights and subjecting them to multiple discrimination, harassment and violence simply on the basis of their gender and identity.
Despite the Supreme Court of Pakistan’s ruling in 2009 that ‘transgender be given equal inheritance and job opportunity rights, amongst others’; no proactive action has been undertaken to this end.
In the South Asian context, much of the male-to-male sex is framed within a gendered dynamic and sexual role, where self-identities are based, not so much on sexual orientation, but rather on gender performance and sexual receptivity. Thus the feminized and sexually penetrated partners, perceive themselves, and are perceived to be, “less than men”.
They usually identify themselves with terms like kothi (India), meti (Nepal), or zenana (Pakistan). Their sexually penetrating partners, in most cases, are perceived, and perceive themselves as “real men”, normal “heterosexuals”.
Pakistan, as a Muslim-identified country, has defined homosexual behaviors as against Sharia law. The issue of male-to-male sex is highly stigmatized in society; MSM is socially excluded, deeply vulnerable, and at risk from HIV and AIDS and other health and social issues due to unsafe sexual practices, along with certain identity characteristics and significant levels of poverty.
Homosexuality and cross-dressing are widely seen as taboo and immoral acts in Pakistani society based on traditional Islamic morality. The national criminal code punishes acts of sodomy with a possible life sentence and has other provisions that impact the human rights of LGBTI Pakistanis.
History of gender variance
The term transgender is used for people whose gender identity, expression, or behavior is different from those typically associated with their assigned sex at birth. Two strands of meaning are associated with ‘transgender’, the first, which describes as the original meaning, refers to people who cross genders without seeking sex reassignment surgery.
The second depicts transgender as a far more diverse and expansive umbrella term ‘that refers to all identities or practices that cross over, cut across, move between, or otherwise queer socially constructed sex/ gender boundaries.
Some cultural diversity for transgender in explaining that it ‘includes, but is not limited to, transsexuality, heterosexual transvestism, gay drag, butch lesbianism, and such non-European identities as the Native American berdache or the Indian Hijra’ Transgender phenomenon is as old as history itself, it has been understood in its many different forms at various periods of times.
It was believed that blurred gender possessed some greater insight, they were considered to be very special with an extraordinary sense of wisdom, unlike traditionally gendered i.e. men & women people. Civilizations transformed sometimes influenced by culture, other by religions, and power roles of traditionally gendered people also kept on changing as societies moved from matrilineal and communal societies into male-driven or patriarchal.
In earliest civilizations, throughout Europe, Asia, the Middle East, and Northern Africa, tribes of different types venerated what they often identified as “The Great Mother”. In nearly all of these traditions, male to female (MTF) priestesses (often castrated or with some form of eunuchs, which included a number of different body modifications of the time) presided, and the cultures were primarily communal systems that held women (venerated as a source of life) in high esteem.
Everything revolves around economics and therefore it is believed that when men-driven societies took over the power role from women they also tried to crush the role of transgender or blurred gendered people to discourage their role and also to keep them refrain from monetary affairs such as land, wealth and property.
The transgender community has been equally active in ancient history from the Middle East to Africa, Asia to Europe, and North America to South America. It was believed that a transgender or eunuch is dually gifted and dually respected in all eras.
Read more: Trump’s transgender ban: a distraction?
Transgenders, referred to in South Asia as khwaja-seras in polite company, and hijras or khusras otherwise, are biological males who take on female identities, choosing to publicly dress and behave like women. The transgender population has a long history in the subcontinent, serving as the caretakers of Mughal harems and making significant contributions to art, music, and poetry.
Ancient legend has it that khwaja sera’s prayers and bad-dua are answered by God, bestowing them with the unique ability to bring good fortune and fertility. Despite their once respectable position in society, their status has significantly deteriorated over the years, forcing many into begging and prostitution.
The transgender/Hijra community in South Asia had been suffering from much marginalization, stigma, and social exclusion after the Mughal emperor and Harem culture extinct. But recent history has seen a revival of transgender community status in South Asia where India and Nepal build on a number of legal and policy reforms.
In 2007, Nepal’s Supreme Court was the first in the region to recognize the third gender category. Pakistan’s Supreme Court followed in 2009. In Bangladesh, the ability to identify as a third gender was achieved in 2013 when the government approved a proposal of the Ministry of Social Welfare.
In an April 2014 decision, India’s Supreme Court for the first time recognized a third gender category, giving transgender individuals formal recognition, legal status, and protection under the law. Pakistan’s transgender community was granted the right to vote in a 2011 Supreme Court decision that was first implemented in 2012, and several transgender candidates ran in Pakistan’s 2013 general election.
These initiatives by the Indian court turned to be very beneficial and effective for the Indian transgender community and Madhu, 35, belonging to the Dalit community, is the first transgender woman to get elected as mayor of Chhattisgarh’s Raigarh Municipal Corporation.
Transgenderism: Through the lens of Pakistani law
In Pakistan, the law in relation to transgenders is governed by the Transgender Persons (Protection of Rights) Act, 2018. It is an act designed to “provide for the protection, relief, and rehabilitation of rights of the transgender persons and their welfare and for matters connected therewith and incidental thereto”.
Section 2 (n) of the Transgender Persons (Protection of Rights) Act, 2018 defines the term ‘transgender person’ as a person who is “intersex (khusra) with a mixture of male and female genital features or congenital ambiguities: or (ii) eunuch assigned male at birth, but undergoes genital excision or castration; or (iii) a transgender man, transgender woman, Kha’ania Sira or any person whose gender identity or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth”.
The Act provides extensive rights to transgenders such as the right to education, the right to vote, the right to hold public office, the right to health, the right to assembly, the right to access to public places, the right to property, the right to employment, the right to education, the right to inherit.
The Act also recognizes the identity of a transgender person. It also protects transgenders against any kind of discrimination. The Act also provides protection to transgenders against harassment.
As per Section 17 of the Transgender Persons (Protection of Rights) Act, 2018 “whoever employs, compels, or uses any transgender person for begging shall be punishable with imprisonment which may extend to six months or with fine which may extend to fifty thousand rupees or both”. Chapter XVI-B, Section 377 (A-Q) of the Pakistan Penal Code 1860 deals with “offenses against a transgender person”.
An Indian perspective on rights of transgenders
Like in Pakistan, the rights of transgenders are also protected in India as well. In India, the rights of transgenders stand protected under the Transgender Persons (Protection of Rights) Act, 2019. It is an Act that has been designed to “provide for the protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto”.
Section 2 (k) of the Transgender Persons (Protection of Rights) Act, 2019 defines the term ‘transgender person’ as a person “whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta”.
The Act provides extensive rights to transgenders such as the right to education, the right of residence, the right to non-discrimination in employment, recognition of the identity of a transgender person, a prohibition against discrimination, the right to social security, the right to vocational training, the right to healthcare facilities.
As per Section 18 of the Transgender Persons (Protection of Rights) Act, 2019, “Whoever, compels or entices a transgender person to indulge in the act of forced or bonded labor other than any compulsory service for public purposes imposed by Government; denies a transgender person the right of passage to a public place or obstructs such person from using or having access to a public place to which other members have access to or a right to use; forces or causes a transgender person to leave the household, village, or other places of residence; and harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.
Rights of transgenders from a judicial perspective
The rights of transgenders have come under judicial scrutiny time and again. The rights of transgenders came under judicial scrutiny before a Two Bench of the Supreme Court of Pakistan in the case titled “Dr. Muhammad Aslam Khaki & Another Versus S.S.P. (Operation), Rawalpindi & Others” reported as 2013 SCMR 187 wherein a Two Member Bench of the Supreme Court of Pakistan was pleased to hold that “Fundamental rights of eunuchs were to be fully protected in terms of Art.184(3) of the Constitution.
“Eunuchs in their own right were citizens of Pakistan and subject to the Constitution and their rights, obligations, including the right to life and dignity, were equally protected. No discrimination for any reason was possible against eunuchs as far as their rights and obligations were concerned. Federal and Provincial Governments were equally responsible for recognizing rights of eunuchs and Government functionaries, both at Federal and Provincial levels, were bound to provide them the protection of life and property and secure their dignity”.
Similarly, in the case titled “Dr. Muhammad Aslam Khaki & Another Versus S.S.P. (Operation), Rawalpindi & Others” reported as PLD 2013 SC 188 the rights of transgenders were given recognition by a Full Bench of the Supreme Court of Pakistan wherein a Full Bench of the Apex Court was pleased to hold that, “Present petition was instituted for the enforcement of fundamental rights of eunuchs, guaranteed under the Constitution including the security of life and property, as they were more vulnerable amongst citizens.
“Rights of eunuchs were fully protected under the Constitution including the right to inherit property. Eunuchs were not to be deprived of their legitimate right to movable and immovable property, their right to get an education, and their right to franchise. Participation jobs of eunuchs in all walks of life had to be ensured and they should not be intervened either by their relatives or by any other functionary.
“Eunuchs enjoyed the same rights under the Constitution and were entitled to be respected by all segments of the society and they should be treated equally with other citizens. Supreme Court observed that in the past eunuchs were not treated at par with other citizens but now with the cooperation of the Federal and Provincial Governments and other organizations, eunuchs were being respected as citizens of the country. The constitutional petition was disposed of accordingly.”
More recently, the Lahore High Court was seized of with a matter pertaining to transgender rights and a Single Bench of the Lahore High Court in the case titled “Faizulllah Versus Punjab Public Service Commission through Secretary and 4 others” reported as PLD 2021 (Lahore High Court) 284 was pleased to hold that “First and foremost duty/responsibility (moral and legal) of Provincial Government was to implement provisions of Transgender Persons (Protection of Rights) Act, 2018, in letter and spirit by not letting government department discriminate between male, female and transgender persons.
“A transgender person was neither an option nor a preference but a recognized and respectable third gender all over the world. High Court directed Provincial Government to make a comprehensive policy at the earliest for implementing Transgender Persons (Protection of Rights) Act, 2018, in letter and spirit and to ensure that rights of transgender persons were protected like any other citizen of Pakistan. High Court set aside order passed by Punjab Public Service Commission and petitioner was allowed to have participated in the recruitment process. The constitutional petition was allowed, in circumstances”.
Similarly, in the case titled “Ghulam Mustafa Versus Judge Family Court & Another” reported as CLC 2021 (Lahore High Court) 204 a Single Bench of the Lahore High Court while interpreting the provisions of the Transgender Persons (Protection of Rights) Act, 2018 was pleased to recognize transgender’s rights.
Likewise, in the case titled “Mian Asia Versus Federation of Pakistan” reported as PLD 2018 (Lahore High Court) 54 a Single Bench of the Lahore High Court was seized of with a matter pertaining to the issuance of computerized National Identity Cards (CNIC) to the Petitioner on account of expiry of previous CNIC. A Single Bench of the Lahore High Court was pleased to allow the Writ Petition and recognize the rights of transgenders to obtain CNIC or citizenship. The right to education, the right to property, the right to life was also given recognition by the learned Lahore High Court.
In the case titled “National Legal Services Authority Versus Union of India and others” reported as AIR 2014 SC 1863 the Supreme Court of India was pleased to recognize transgender’s rights by holding that “Hijras, Eunuchs, apart from binary gender, be treated as the third gender for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
“The transgender persons’ right to decide their self-identified gender was also upheld and the Centre and State Governments were directed to grant legal recognition of their gender identity such as male, female or as the third gender”.
Reviewing the Transgender Persons Act
There have been multiple efforts in Pakistan to guarantee the provision of fundamental rights to the transgender community. The main right in this regard is the right to equality as transgender persons have faced discrimination since the colonial era in the sub-continent. However, the transgender community and the right to equality in Pakistan, Review of the Transgender Persons Act 2018 trajectory, Pakistan has adopted to solve this issue and is defective.
To the most extent, both the Supreme Court and the Parliament have focused on granting formal equality while the focus should have been on substantive equality. As long as the social, economic, and political discrimination against transgender persons persists, the State cannot claim meritocracy for them.
There is a need to bring the transgender community at par with the rest of the population through affirmative action by the State, as while the Transgender Persons Act prohibits discrimination, there is little to no mention of any positive measures which the State can adopt, such as quotas for transgender persons.
Recently, in Sindh, transgender persons were allowed to join the police force as regular duty officers, this is a positive initiative that should be followed in other provinces, and at a federal level as well. Transgender persons should also have separate representations in the legislative bodies as they are now considered to be the separate third gender. This is the only way their concerns can be properly heard.
The Act allows them to contest elections, but it is almost impossible for them to win from a general seat. Thus, while the Transgender Persons Act was a historic move as the transgender community was acknowledged and owned on a national level by the chosen representatives of the population, a proper analysis of the Act showed that it is lacking at several points and leaves much to be desired.
The Act should be further amended so these and other concerns can be properly dealt with. Furthermore, the government needs to come up with a proper policy for the implementation of this Act and needs to allocate funding for it, and the provinces also need to come up with their own versions of the Act. Only then would there be a holistic approach towards the right to equality for the transgender community in Pakistan.
May Allah help and guide us all!
The writer is an advocate high court practicing in Lahore and is a founding partner of Ahmed & Pansota (Advocates & Legal Consultants). He started his career with Cornelius, Lane & Mufti after doing Bar-at-Law from Inns of Court School Law, London, and was called to the bar at Lincolns Inn, London, in the year 2005. Barrister Pansota also figures as a legal analyst in a weekly talk show called Zanjeer-e-Adal on Capital TV and appears on other national TV channels. He also writes for various newspapers on current legal issues. He tweets @pansota1.
The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.