The government needs to take a number of measures for the full integration of transgender people into the society
he state is responsible for protecting the beleaguered transgender community in the country. Article 25 of the constitution envisages equality among citizens regardless of their gender. The pronouncement and directives of the Supreme Court to protect and safeguard the life and interests of transgender people must be implemented to integrate them as productive members of the society. Federal and provincial governments have an equal duty in recognising the rights of the transgender community. Government functionaries, both on the federal and provincial levels, have largely failed to provide the constitutionally mandated protection of life and property and secure their dignity.
Human rights violations and discrimination on account of their gender identity are still prevalent in much of Pakistan. The transgender people face even more of stigma, discrimination and violence than other marginalised groups. Transgender people face harassment, mistreatment and exclusion from society, from the public health care system, education system and employment. They face various forms of abuse, ranging from exclusion to brutal murder and are subject to trafficking, extortion and forced prostitution. Things started changing after the Trans Rights Protection Act of 2018 but the change has been slow. For a full integration of transgender people into the society, the government has to take a number of measures.
In Pakistan, transgender people are ostracised by the society; sometimes they are also disowned by their families. Most of them live in groups to avoid abuse and extortion. Some of them engage in sex work in extremely unsafe circumstances. Many of them face physical and sexual abuse. The abuse causes severe emotional distress and mental agony. Some of the survivors then resort to self-harm or use narcotics.
Some of the transgender individuals have to financially support their biological families. In some cases these families resort to abuse, violence and torture to maintain control over them. Forced marriages and physical and emotional torture are frequent. The families tend also to pardon those guilty of violence against transgender persons.
Most transgender people in Pakistan get support from their peers only. In the absence of regular medical care, some relief comes from community members.
The Transgender Persons (Protection of Rights) Act, 2018, provides limited protection. Most transgender people continue to suffer discrimination in many spheres of their lives and violence. In a 2021 judgment (PLC (CS) 1091), the Lahore High Court directed the government to ensure full implementation of The Transgender Persons (Protection of Rights) Act, 2018, as its foremost duty.The government, the court noted, cannot discriminate between male, female and transgender persons. It said being transgender was neither an option nor a preference. The court also directed the government to draft a comprehensive policy for a full implementation of the Act in letter and spirit and ensure that the rights of transgender persons were protected.
The NADRA started registering transgender people in 2012. However, it is estimated that nearly 90 percent of them remain unregistered. A 2 percent quota in government jobs was also announced. The promise has remained unfulfilled.
It is estimated that there are 500,000 ‘third gender’ citizens in Pakistan. It wasn’t until 2012 that a three-member tribunal of the Supreme Court, headed by then chief justice Iftikhar Muhammad Chaudhry, ruled that the transgender community had the same rights as guaranteed in the constitution for other citizens. These include the right to inheritance, work opportunities, free education and medical care. In a landmark judgement (PLD 2013 Supreme Court 188) it ruled that the transgender citizens had the right to vote and to inheritance. The NADRA started registering transgender people in 2012 following the Supreme Court verdict. However, approximately 90 percent of transgender people remain unregistered. The landmark judgement seemed to open many doors for the community. Sadly, it was never fully implemented. The government had also announced a 2 percent quota in state jobs but the promise has not been fulfilled.
Trans-phobia can result in denial of legal, political, socio-economic and health care rights of the marginalised community. UNDP-Pakistan has been actively involved in lobbying for the 2030 Agenda of Leave No One Behind. International support and local activism culminated inthe legislation of the Transgender Persons (Protection of Rights) Act, 2018.
It was reported recently that the Central Prison in Karachi, one of the oldest and largest jails in Pakistan, there are no separate barracks for transgender people. In a report submitted to the Sindh High Courtits senior superintendent submitted that, “as such there is no separate barrack for transgender persons in this prison.The prison is already over populated.The sanctioned capacity of the prison is 2,400 prisoners whereas its current population is 4,633. The admission ratio of transgender persons stands at .001 percent. Therefore, a separate barrack for transgender prisoners is impracticable.”
Pursuant to the 2018 Act, the rules governing the administration of the prison guarantee separate barracks for transgender prisoners, but the prison officials have failed to implement those. Section 38 (d) of the Sindh Prisons Rules and Correction Services Act 2019 provides that “transgender prisoners shall be kept separate from female and male prisoners.” The absence of separate barracks therefore represents a failure of the government in discharging its duty. Rule 38 (d) clears creates a mandatory obligation. The Transgender Persons (Protection of Rights) Act, 2018 also puts the government under an obligation under Section 6 (b) of the Act to “Establish separate prisons, jails, confinement cells, etc for the Transgender persons involved in any kind of offence or offences.”
The law allows transgender persons equal rights to education, basic health facilities, acknowledgement of their transgender identity on their identity cards and passports, besides the right to vote and contest elections. Some religious parties have recently criticised the law and condemned it as an attempt to provide legal protection to homosexuality. The Act does not mention or allow any kind of sex change. It was passed to “protect the marginalised transgender community, and to safeguard their rights to education, inheritance, heath care and employment.” Intersex childrens’ genitals are different and may change over the course of their life. This point was made in the Transgender Rights Act, which states that every transgender person can choose their preferred gender identity upon reaching the age of 18.
Apart from the ruling of Supreme Court of Pakistan in 2009 on the recognition of transgender as a third gender, there is no legal or social protection for the transgender community in exercise of their basic human rights as a citizen. As a community we have to advocate an inclusive and participatory approach.The transgender community should be meaningfully empowered to participate in the development of laws, policies and programmes being devised to improve their lives. This can only be achieved through, first, the implementation of laws/policies to ensure social inclusion of transgender people; and second, meaningful recognitionof their rights in a social context.
Although no law or policy excludes or discriminates against the transgender community on the basis of sex or gender directly, there is also no other law reduce discourage their marginalisation and exclusion from mainstream of society.
There is need also for reviewing the laws, policies and practices of the justice system to deal with sexual and physical assaults against transgender people.
The writer is an advocate of the High Court and a PhD scholar