Policy loopholes continue to remain a stagnating factor in transgender persons’ welfare
lthough transgender persons are theoretically protected by progressive laws in Pakistan, there has still been an increase in anti-transgender violence in recent years. Nayab Ali, a well-known transgender activist, was attacked at her Islamabad home by two men armed with knives last November. She was assaulted and robbed while being held captive for three hours.
“They believe that putting an end to the activists is the only way to silence the transgender community. Thus, the rise in violence,” said Ali.
As I evaluate the implementation activities of the Transgender Welfare Policy (2018), the“equality plan” seems somewhat deceptive. The Supreme Court passed a landmark judgment regarding the rights of the transgender community, although the subsequent orders had major flaws. The main issue was that the court only formally recognised the transgender community’s right to equality, claiming that the community’s problems stemmed from a breakdown in communication with the government and that this problem could be resolved by the appointment of a focal person who would unambiguously represent the community’s claims. In this case, the court made the incorrect assumption that transsexual people had the same social standing as other citizens.
Encouragement of government organisations to collaborate with the transgender community was only a part of the solution, for this reason. The right thing to do would have been to instruct the government to concentrate on taking preventative measures to overcome the prejudice and subordination pervasive in the society. It is indisputable that a panel of 17 unelected persons awarded the transgender community rights without any legitimate democratic backing. The general populace felt that it was under no obligation to accept the decision. In Pakistan’s lengthy and complex history of judicial activism, the verdict on transgender rights is but a small episode.
In Pakistan’s lengthy and complex history of judicial activism, the verdict on transgender rights is but a small episode.
The Act’s occasional use of the word “he” rather than the preferred pronoun “they“ for transgender people is an inconsistency.
In sections addressing transgender people’s rights to property, employment and access to public spaces, the pronoun “his” has been used. Both the Code of Criminal Procedure, 1898 (Act V of 1898) and the Pakistan Penal Code (PPC), 1860 (Act XLV of 1860), respectively, accord any word that is not specifically defined in the Act’s defining clause the same meaning.
Furthermore, according to the PPC, “any individual, whether male or female, may be referred to by the pronoun he and its variants.” For the purposes of the Act’s protection, “him” applies to men and women; it does not pertain to any other gender. The legislative assembly made a serious error of judgment with this. This mistake won’t have any substantial legal ramifications if the courts interpret the Act liberally, but if they do, it might be theoretically impossible to grant the rights to the transgender community because they do not fit into the gender binary. There is a risk that intersex people will be excluded if these rights are limited to transgender people whose identities most closely mirror those of men or women. According to the Transgender Persons Act, intersex people have “a combination of male and female genital traits or a congenital ambiguity.”
There is a need to revisit the inconsistency in the usage of pronouns and the problems with the Supreme Court judgment, guiding policymakers and members of parliament on how the act can be strengthened further.
The writer is an MPhil scholar at the ITU