Transgender is is an umbrella term which have different connotations globally used to represent and define people whose gender identity and sexual expression differ from their gender at birth . It describes the diversity of the individual , genders and sexual identities that do not conform to the general idea of the gender binary system. This approach considers transgender person as one whose gender identity is different from physical , sex gender at birth . The other global approach has a wider connotation . It uses transgender as an umbrella term that encompasses all gender queer behaviors . It also includes transsexual, cross dressing individuals ( those undergoing sex reassignment surgery and bi sexual .Cultural definition of transgender is ‘ neither male nor female .
The Hijra / Khusra is a South Asian identity and a subculture which prescribes to its own norms , mores , values and tradition . They are also referred to as Khawaja Siras, or third genders. The total population of
The transgender community in Pakistan in 1998 was 10, 418 , in 2015 , the Health Ministry indicated the number of transgenders as 150 , 000. In some studies it has been indicated upto 300, 000 .Trans gender community has faced multiple levels of serious legal , institutional and societal discrimination and harassment .Since the colonial era they have been victims of social exclusion and public ridicule , Due to widespread abuse and and harassment ,many transgender engage in sexual activity in extremely insecure environment and fall prey to diseases and are often gang raped . This abuse causes despair . distress and mental anguish. Resultantly, many survivors become addicted to drugs and alcohol . Absence of medical care further aggravates their situation and they become transmitters of sexually transmitted diseases . Even
after years of struggle for their social inclusion ,transgender community in Pakistan has been suffering from perceptible marginalization, stigma and social exclusion . They have faced phenomenal dangers from police , family , community and religious authorities . The family itself disowns, humiliates , and in most cases banishes the child from home .Losing the family net means losing much of their social entitlements and protection. Hence they become an easy prey of sexual abuse, and harassment, physical assault ,and go through psycho social trauma. Khawaja Seras isolate themselves in self sustaining close knit groups, where a leader or a guru adopts transgender children after they have been rejected and disowned by their parents at a young age . For decades transgender people struggled for social acceptance and legal recognition of their gender identity. The plight of the transgender community in Pakistan went unnoticed by the executive , judiciary and wider civil society for more than Six decades ,which changed their abysmal condition in 2009 through a Supreme Court case law
The Supreme Court Orders In a Case Law.
Almas iBobi President of shemale rights in Pakistan along with lawyer Aslam kahkii filed a petition under Article 184 (3) of the Constitution in Supreme Court in 2009 against molestation and wide spread humiliation of transgender individuals, while performing at a private function at Taxila they were robbed and sexually assaulted by the police . It was argued that state had failed to protect the rights of the transgender. The petition asked for the protection of the constitutionally guaranteed rights to security (Article 9), right to human dignity (Article 14), Right to property (Article24), Right to equality (Article 25)
The petition resulted in series of orders by the Supreme Court between 2009 and 2012. The gist of the orders is as Under:
1)The Supreme Court ordered the Attorney General to prepare a framework for federal and Provincial governments to take steps to ensure that transgender individuals should be given their right to security and property rights( Nov 2009 )
In the second and third ruling it reiterated that families cannot deprive transgenders of their legal inheritance by disowning them ..The court directed National Data Base and Registration Authority (NADRA) to devise a strategy to record exact status of transgender individuals on passport and National Identity Cards after conducting ‘medical test’s based on hormones ‘ The court also ordered that the names of the transgenders be registered in electoral lists to enable them to cast a vote.It also ordered the Ministries to provide respectable jobs and social status to transgender individuals. In the third order the government was directed to devise a policy to ensure that transgender people have access to education and vocational policies .Moreover ,
Supreme Court ruling in 2009 highlighted that no Pakistani law provides room to dis enfranchise ‘ eunuchs ‘ from their fundamental rights. Hence NADRA was directed to issue them National Identity cards after essential tests and thereafter , NADRA began issuing cards with the sex as ‘ Khawaja-Sira’. The landmark ruling further observed that the names of ‘eunuchs’ be added to electoral rolls to enable them to exercise their right to vote. pursuant to the ruling the transgender community took part in the political process of the country. With sex as male khawaja Sira , female Khawaja Sira ,or Mukhannas .The first one grants the same legal status as males , with similar share in property, second one provides a status similar to that of women, while there is no legal clarity on the third . The identity card requirements in some areas asked the transgenders to change their fathers name with that of their gurus . It may be highlighted that The Supreme court’s judgement does not grant social security, welfare and protection of human rights to ‘eunuchs’ hence it only scratched the surface of a major problem. Nevertheless , Supreme courts ruling was a major milestone in the lives of trans gender community . The order represented the first success of arduous activism for transgender rights . It helped them to find some jobs in govt departments ie social welfare department , Appointmet for revenue collection, local market rates checklist, polio vaccination teams. However , these opportunities are very limited because of lack of education in the trans gender community . In addition to recognizing transgender identity and rights .it also cleared the path for them to fall back on case laws in Supreme Court . The momentum generated by the orders made enactment of 2018 Act possible .
The transgender protection of Rights Act( 2018)
In order to address the plight of the transgender persons the (transgender persons protection of rights Act 2018 ) was enacted by Government of Pakistan to legally provide equality to transgender peoples and to safe guard their rights . This law allows the transgenders to legally have the same rights as cis gender people This law was hailed as a progressive law on trans gender rights globally, by the International Commission of jurists.
Pakistan according to AlJazeera is one of the first nations that legally recognized Transgender .
The Act defined ‘transgender person as a person who is intersex ( Khusra ) with a mixture of female and male genital features or congenital ambiguities.’
B) Eunuch assigned male at birth but undergoes genital excision or castration or
C ). A transgender man , transgender woman, khawaja Sira any person whose gender identity/ and gender expression differs from the social norms and cultural expectations based on the sex they are assigned at the time of their birth .
Being a Significant land mark ,for safeguarding gender rights in Pakistan , this act requires to be examined in some detail . The main features of the Act are as under:
Definition:
Section 2 (n) of 2018 act defines transgender as :
1)Intersex Khusra with a mixture of male and female genital features or congenital ambiguities.
2)eunuch assigned male at birth but undergoes genital excision , or castration
3)A transgender man, transgender woman , khawaja Sira or any person whose identity/ expression differs from social norms and cultural expectations based on the sex they are assigned at the time of their birth .
The other clauses of the Act empowering the transgender community are as follows:
1)Every transgender person being the citizen of Pakistan shall have the right to get herself / himself registered with NADRA on CINC driving license and passport in accordance with the provisions of NADRA ordinance2000.
2. Transgender people may change their gender in National Data base and Registration Authority ( NADRA) records as per his or her self perceived gender identity with all government departments including Nadra .
Chapter 111 of the Act specifically deals with prohibition against discrimination and unfair treatment in educational institutions, healthcare and other services , employment, trade and occupation .It gives the transgender community the right to free movement , travel and use of public facilities . It also gives the transgenders the right of inheritance , in chapter 5 of the act by specifying that’ there shall be no discrimination against them in acquiring the rightful share of property as prescribed under law of inheritance’ for transgender male the inheritance share will be that of a man, and for female transgender it will be that of a woman . The Act also gave the trans genders the
right to vote during National , Provincial and local government elections and the right to hold public office. In addition the Act bestowed fundamental rights as depicted in the Constitution to the transgender community and highlighted that their shall be no discrimination for any person on the basis of sex , or gender identity . Thus the Protection of transgender persons Rights Act of 2018 is fairly comprehensive if practiced in letter and spirit . The Act ,in addition to the recognition of gender Community started a set of legal reforms for them .Following its enactment several banks and micro finance institutions created low income schemes for transgender individuals . Moreover the Punjab government created Transgender persons Welfare policy . It may be highlighted that both the Act and the Supreme Court orders recognized the rights of transgenders to participate in the electoral process . Hence number of candidates took part in 2018 elections. Hence 2018 Act has the potential to provide comprehensive protection to the rights of transgender people in Pakistan .
Nevertheless, the visible gap in the Act is that it did not provide for a comprehensive policy and affirmative actions, which could have included employment quotas , financial uplifting schemes, as in the case of other vulnerable groups .
Regrettably, however,
this progressive Act of 2018 , become a prey to opposition four years later . The opponents of the law claim that the provision to choose or change one’s gender is UnIslamic and could open the door to same sex marriage prohibited in Islam. There was wide range opposition from conservative politicians, Islamic jurists and general public who deemed this law to be contradictory to Islamic provisions on law of inheritance and promoting nonconformist behavior .The country’s Federal Shariat court is also reviewing arguments in favor and against the 2018 law .
An amended bill presented in the Senate has been referred to the relevant Standing Committee . Hence fate of the bill hangs in a balance.
As is evident from above,even
after enactment of the Act , the condition and treatment of trans gender remains much to be desired Which is an outcome of social taboo and stigma attached to them .
The transgender community remains one of the most marginalized communities in Pakistan ,living on the fringes of the society.They face immense discrimination and violence both physical and mental in addition to socio economic and legal problems.However against all odds , many transgender people are working towards creating inclusive spaces for themselves.
Recommendations :
1 )The major failure in reforms efforts has been the inability to change the attitude of society towards transgender people , which is a societal mindset , and a persistent malaise .
2 ) In order to improve the status of transgender people in Pakistan , government would need to create wide scale public awareness about their plight and improve their treatment.
Section (6) of 2018 Act imposes an obligation on the government to launch sensitization and awareness campaigns for government officials and the general public. Both Federal and Provincial governments have failed in this regard. Significantly, NGO’s like sub Rang , ( are working in the Areas of Awareness Advocacy and economics empowerment)Akhuwat, Khawaja Sira Society and BeGhar continue their efforts in advocating and advancing transgender rights, without adequate government support. However ,changing social perception about transgender people continues to be extremely slow and difficult .
3. There is need to reform law of inheritance, effective regulation on sex change procedures, need for consistent efforts to change social perceptions about transgender people and improvement in their treatment by government officers especially the police .
4) Accessibility of mental health Services and peer support is crucial for transgender people because societal pressures and discrimination is an ongoing ordeal.
5 )It should be ensured that transgenders have access to essential services which as per WHO were lacking .
6. There is dire need for active efforts of the Provincial governments for ensuring proper implementation of these reforms, otherwise transgender people in Pakistan will continue to face stigma, discrimination, harassment and violence and the state will continue to fail one of its most vulnerable and marginalized groups .