Advocate Shafaq Farooq
28 July 2023
The Islamic Republic of Pakistan is not a secular state and perhaps religion is of utmost importance in the country. Any law which seems to be in contradiction with the Islamic principles / injunctions, is promptly declared null and void. The Transgender Persons (Protection of Rights) Act, 2018 (hereafter as “Transgender Act”) has been criticized as certain stakeholders of society surmise it to be out of the ambit of Islamic principles. This article tends to explore the issues faced by the transgender community in Pakistan. It will also dig into critically analyzing the provisions of the Act in terms of positive and negative impacts such provisions can have on the society and in-depth findings in the form of interviews from public and medico-legal experts shall be shared, so that solutions can be devised to the emerging problems because of non-implementation of the current Transgender Act. It is pertinent to mention that there is a clear distinction between transgender and intersex since one is a sexual condition and the other is a gender problem. Therefore, research on this aspect is important since it is the first paper to objectively evaluate the Transgender Act, and will make a fruitful comparative analysis of both the terms in this regard. There aren't many articles elucidating on the difficulties affecting transgender community. Hence, this article will indulge in providing recommendations as to what kind of amendments should be made in the Act.
Every individual in a state has fundamental rights which includes having equal status irrespective of gender. The biggest paradox of our society is that not only are the rights of third-gender pertaining to equality denied; but they are also disrespected in multiple ways. Transgender is an umbrella term for persons whose gender identity (masculine, feminine, other) is different from their sex (male, female) at birth and they decide to transform their gender through medical procedures (Centre for Disease Control and Prevention, 2023).
In Pakistan, the intersex community is almost 0.24 percent (Shamail, 2021). Considering their ratio, the Transgender Act was drafted by the Government which discusses both, intersex people and transgenders. Stakeholders in our country, comparatively, recognize the status and rights of intersex people (known as “Khawaja Sera”) but the concept of transgender is still a taboo and is often debated to be anti-Islamic.
One-third of 50 children in a recent study on transgender sex were found to have obvious chronic tendencies or potential (Abdullah, Hali & Iftikhar, 2020). To put it another way, transgenderism affects roughly 2% of Pakistan's population (Akhtar, 2016). Firstborn's third gender is decided by the family. Families initially grow enraged and want to kill them or exclude them from their group because they feel ashamed to be related to them. Therefore, it makes sense why Hijras experienced lowborn prejudice in every aspect of life, including family, community, social organizations, schools, and society. (Saddique, Kamran & Gang, Chen & Mirbehar, Sindhu & Batool, Hassan & Ahmad, Intikhab, 2017).
Efforts were made to provide equal rights to the transgender community in 2013 by the Supreme Court of Pakistan. They were granted the fundamental rights to employment, education, health care, and employment in various government offices for a comparable amount of time. However, still there were some major loopholes within it and hence, the Transgender Act was introduced.
The main aim is to critically analyze the provisions of the Transgender Act in order to highlight the shortcomings: 3.1 Section 2 The section outlines fourteen definitions of the terms used in the Act. It attempts to define the term ‘transgender person’ in 2(n). In Pakistan this term is widely misunderstood and misinterpreted. Both the classes of Pakistan, may it be the liberals or the conservatives, are unable to understand the term transgender person. The legislators while defining the term ‘transgender person’ have failed miserably as they have created an ambiguity by including the term ‘intersex’ in the definition. As per the provision, a person may be identified as transgender if; a) The person is intersex. b) The person has undergone any genital excision or castration. c) The person has a different gender identity.
Including the term ‘intersex’ in the definition of transgender person is the major lacuna of this Act as both are different categories of gender. Transgender relates to an individual’s sense of personal identity which may not correspond to the gender assigned to him at birth. Whereas, intersex is identified as any individual who is born with such sexual anatomy which does not fall in the category of male or female (Leonard, 2021).
Advocate Abdul Rahman, who was part of the proceedings in the Federal Shariat Court and addressed the issues raised against the Act, gave the following statement:
“In Section 2(n) transgender person’s definition is mentioned. The copy downloaded from the parliament’s website mentions intersex as “khusra” in section 2(n) whereas the gazetted draft of the same act includes “khunsa” which are both different in meaning. The biological children who have both male and female organs are khunsa but the individuals who are born as male and their male organs have been castrated, are regarded as khusra. And the word transgender is an umbrella term which includes all such genders other than males and females. Hence, these terms are not defined in the act separately and have resulted in confusion”. Therefore, the addition of the term intersex in the definition of transgender is a major mistake and the legislators should have looked in-depth at the concepts before incorporating.
3.2 Section 3
The section deals with recognition of transgender person’s identity based on his or her self-perception. The term ‘self-perceived identity’ used in this provision is also very ambiguous. The literal meaning of this term is an individual’s emotional and behavioral interpretations about themselves (Leonard, 2021). The problem is that the provision explicitly says that a person has a complete right to be recognized as per his or her self-perceived identity without any criteria. What will be the criteria or grounds of one’s self-perception? What will be the limitation of one’s self-perception? What tests will be applied to check an individual’s reasonableness to determine his gender as per his self-perception? All these questions and ambiguities arise from this loosely legislated provision.
As stated by one of our subject:
“In UN women conferences, the respective organizations now claim that there is an agenda of sexual rights which will rule the world in near times. From 2006-12, UN General Assembly and Human Rights Council declarations were put forward, and sexual rights and sexual orientations were introduced. It is the same propaganda which can be seen in the latest Transgender Protection Act which is against Islam.”
3.3 Section 4 & 5
The sections deal with transgenders rights to not be discriminated against in fields of education, employment or healthcare etc. Further states, harassment is a serious issue and a person cannot be harassed on the basis of sex or gender identity. The provisions have no problem. However, the term transgender used in the entire Act itself is the major lacuna.
3.4 Section 6
The section deals with the role and responsibilities of the Government to protect and ensure participation of transgender community in the society. The provision is detailed but the only subject it lacks to include is acceptance of such people in the society. Government should take necessary steps to educate and create awareness in society regarding transgenders, intersex people and other related concepts.
3.5 Section 7, 8, 9 & 10
The sections deal with right to inherit, right to education, right to employment and right to vote respectively. It states that every transgender person shall have the right to vote during national, provincial and/or local government elections, if they are a citizen of Pakistan. The term ‘gender declared’ is a bit contradictory as it shows that the person first shall identify themselves on their CNIC to be able to vote. Otherwise, these provisions are justified as they talk about basic fundamental rights.
3.6 Section 11 & 12
The section states that a transgender person shall not be discriminated against on the basis of sex, gender identity and expression if they want to hold a public office. The word “discrimination” overall is very vague in the Act as it does not define what constitutes discrimination. Moreover, Section 12 deals with the right to health. This provision puts responsibility on the Government to ensure that no discrimination is faced by transgenders while they are attaining medical status. This provision has no problem.
3.7 Section 13
The section enunciates that the transgender persons have the right to assembly. It further states that it is the responsibility of the Government that transgenders’ freedom of assembly must be ensured according to Article 16 of the Constitution of Islamic Republic of Pakistan 1973, which talks about the same. This section has no issues.
3.8 Section 14
The section deals with ensuring access of transgender people to different public places. Some other places mentioned in it are entertainment and religious. This provision imposes an obligation on the Government to ensure that transgenders have the right in light of Article 26 of the Constitution of Islamic Republic of Pakistan 1973, which emphasizes on non-discrimination principle with regards to the access to public places. The basic purpose for this provision was to prevent the scornful attitude of people towards transgenders as they are treated with disrespect when they enter public spaces to earn money.
However, the main issue is that transgender people still do not have access to some of the public places such as public restrooms or washrooms. This provision should have added an obligation on the Government to build separate washrooms or restrooms for these people within the public places because they cannot access the male or female associated places which is of a major concern.
3.9 Section 15 & 16
The sections provide the right to hold property and states that discrimination should not be made on the basis of sex, gender identity and expression. Moreover, states that other fundamental rights stated within the Constitution of Islamic Republic of Pakistan are also made available to transgender people. There is no problem within the text of these sections.
3.10 Section 17
The section states that employing, pressuring, or utilizing any transgender person for begging is now a crime which carries a penalty of up to six months in jail or Rs. 50,000 fine. The law covers both the intentional activities of transgender community, which can be suggested by the phrases "employing" or "using," as well as the forced usage of a transgender person for begging. The clause makes the majority of the community's job illegal and widens another economic inequality. These words have again given a right to police and other law enforcement officers to threaten, harass, and imprison them. This can have a significant negative impact on the community's economic situation because begging and collecting alms had been their main sources of income. The clause disregards the distinctive traditions, ties to family, and social structure of the transgender group. Most transgender people have a master who gives them shelter, teaches them about local customs. Their "structure of relatedness" is harmed by these laws making the community open to outside interference and assault.
3.11 Section 18
The section talks about the “Enforcement Mechanism” which says that if any transgender faces any issues in getting their basic rights which are assured in the Act then they can approach the Federal Ombudsman, National Commission for Status of Women and National Commission of Human Rights for the remedies under Constitution of Islamic Republic of Pakistan 1973, Pakistan Penal Code 1860 (hereafter referred as “PPC”), Civil Procedure Code 1908 (hereafter referred as “CPC”) and Code of Criminal Procedure 1898 (hereafter referred as “CrPC”). This provision was added to strengthen the position of transgenders and to make sure they can exercise their rights freely, without societal pressures.
3.12 Section 19, 20 & 21
The sections state that the provisions of this Act shall prevail in any case and it supersedes all the previous laws. It gives the Government an authority that it can make any laws and rules under this Act via a notification. Furthermore, states that if any issue arises or if people are not satisfied with any provision as it causes conflicts in the society, then the Government has the power to remove or add any provision within a duration of two years from the date of Acts’ implementation.
The Transgender Act has been considered a milestone as it ensures and recognizes the basic fundamental rights of the third-gender, which were not previously guaranteed. As the Act explicitly guarantees freedom, equality and provides protection against harassment, it is now an obligation on the Government to allocate special programs to increase employment opportunities for them, provide medical and legal facilities followed by proper counselling.
In the words of one of the community members: “Before the Act was passed, we used to stay silent and did not fight for our rights, as there was no law for us. People used to mistreat and disrespect us. With the enactment of this Act, we could claim our rights and lodge FIR against the oppressors. Now we use law as a tool to protect our rights.”
According to the community members and activists, the Act has enabled transgenders to access their official documents (including passport, driving license, identity card etc.) in their name and the identity of their choice. NADRA being a government institution, is not much supportive in this regard but now they can at least have a protected right which can be challenged if violated by any authority, in the courts of law.
A transgender named Shahzadi Rai during the interview said: “The officials of NADRA were also hesitant in providing identity cards but our continuous efforts bore fruit and we were able to make CNICs for our community.”
One positive aspect is that the Act provides legal protection to those who previously were known as beggars or sex workers. Previous activities of transgender community were a taboo for society. But giving electoral representation and voting rights to this community has changed their perspective in the society.
Legal experts, religious scholars and the student body strongly declare the Act to be anti-Islamic - a propaganda to promote homosexuality. Being an Islamic country, the laws in Pakistan cannot be inconsistent with the Islamic ideologies. Even though, western states have adopted the concept of homosexuality but it is impermissible in Islam. The “right to self-identify” is considered an ambiguous right as it gives the right to a male or female to identify oneself of the gender, which one perceives to be part of.
As per an academic expert; “The Act requires an amendment and a proper elaboration on what gender is; what intersex vs. transgender is. Self-perceived identities are not a scientific approach to what gender is. It will impact the society at a huge level and moral values will further degrade.”
One of our interviewees shared his opinion by stating: “According to the June-July 2018 report of the Senate, out of 28, 723 people, about 16000 men converted to women and 12000 women turned to men, only 9 transgenders had changed their identity in one month. It has promoted the culture of same-sex marriages. The relevant case is Syed Amjad Hussain Shah v. Ali Akbar alias Asma bibi and 5 others. In the instant case, 2 girls married each other. Medical board was constituted to investigate the matter but one of them absconded. In this way, the petition was disposed of, leaving no evidence of same sex marriages.”
With recent advancements, a debate has been generated that there is no requirement of medical check-up in the Act to determine sex / gender. The experts assert that medical tests should be the criteria to decide the gender of an individual. They say that only the requirement of medical tests can put an end to the expected chaos, arising due to gender conversion and the idea that males can marry male and females can marry the females of their choice. Changing the gender willingly, is not allowed in our legal system as per the precepts of Islamic ideology. It will result in women converting to men, to get double share in inheritance. Biologically males who are appearing to be females after gender conversion can rape another woman and share private spaces of women which will ultimately increase crime rate in Pakistan. It will also increase chances of same sex marriages which is not acceptable.
As highlighted by one of our testifiers, it was said: “As far as the procedure of accepting the bill in parliament is concerned, it was accepted by all the stakeholders but drafted by international drafters who used these ambiguous terms to misguide Muslims. The Islamic Ideology Council had never accepted this bill and was never consulted. The number of people in the Parliament was very less, when the respective bill was passed. State is under obligation to repeal this law under Article 230 of the Constitution of Pakistan as it is against Islamic injunctions.”
The Act is undoubtedly a very progressive step toward ensuring integration of transgenders in the society while protecting their own traditions, customs, and social structures from colonial anxieties (Redding, 2019). However, there are a number of issues.
First of all, the language of the Act is questionable because there was the chance to educate the public about appropriate pronouns for transgender people but the opportunity has not been availed properly. Instead of using the gender-neutral word "they," the Act refers to transgenders as "him or her”. Moreover, the word "his" has been used in parts addressing the rights of transgender individuals to vote, to work, to be in public places, and to own property, which is a flagrant error on the part of the legislative body because the pronoun "him" relates only to men and women as according to the Pakistan Penal Code (PPC), not to any other gender in whose defense the Act was passed.
The Act has also lost the chance to control gender confirmation surgery. There is no relevant law in Pakistan at the moment with respect to it. In Section 12(c), the Act mentions gender treatment but it makes no specific or extensive provisions for gender confirmation surgery. Despite some doubt regarding the compatibility of gender confirmation surgery with Islamic principles in Pakistan, the majority of Muslim scholars hold that Sharia law permits such procedures, which are lawfully performed in a number of Muslim nations, including Iran, Egypt, and Syria (Mohydin, 2019).
Moreover, the Act requires the government to develop a thorough framework for the betterment and protection of transgenders, particularly relating to fundamental rights. However, neither a detailed roadmap nor any provisions for evaluating the implementation of such improvements have been laid out. It gives the Government free rein to develop strategies for achieving these goals and this is where most reform initiatives in Pakistan fail.
Although the transgender community has the ability to inherit, it nonetheless adheres to the Islamic custom that gives women the equivalent of half of a man's inheritance. Hence, transgenders do not want to register as trans women because doing so would require them to forfeit half of their inheritance. Furthermore, transgenders from religious minorities are not permitted to hold the highest public office, which theoretically increases the stigma they will experience as members of two minority groups (Abdullah, Hali, & Iftikhar, 2020).
On record, since there is not enough data on the population size of transgender community, there isn't a specific quota for the transgenders in higher education institutions, legislative bodies, or employment prospects. However, a quota should have been maintained. Otherwise, it is impractical to offer a marginalized minority a spot in the educational or career section due to unfair competition in today’s time.
For the transgender population to be mainstream and included in national decision-making, which is not guaranteed by this Act, reserved seats must be provided. International human law recognizes the right to marry and engage in consenting relationships among adults as fundamental human rights. The Transgender Act does not grant these rights to the transgender population, and this appears to be impossible within the current constitutional system, which is governed by religion.
Furthermore, the Act does not recognize the right to employment in the military. Also, Human Immunodeficiency Virus (HIV), which affects 7.1% of transgenders nationwide, is not identified as a specific health requirement (Khan, 2021). Lastly, the Act does not provide transgenders the access to any kind of special protection or health insurance.
Despite the flaws in the Transgender Act, numerous banks and microfinance organizations have developed low or no interest rate loan schemes for transgenders after the Act was passed by two-third majority in the Parliament (Rashid & Rashid, 2022). This has been a step forward in improving the economic situation of the country.
In 2018, the Transgender Persons Welfare Policy was also adopted by the Punjab Social Protection Authority to address the needs of transgenders in Punjab. The actual execution of the policy is still troublesome because there is little to no data to evaluate its effects. Additionally, there is no analogous policy adopted by any other provinces, and the Punjab Welfare Policy exclusively applies in Punjab only.
Conclusively, though the Act marked a turning point in history, it still needs to be improved in order to address the problems of transgenders in a sensible manner. Additionally, the Federal Government is required to plan and finance an effective implementation strategy for the Act. Only then Pakistan will be able to approach the rights of transgenders pertaining to equality in a comprehensive manner.
Following are the recommendations by Council of Islamic Ideology and some general recommendations to be made in the Act in order to ensure that the transgender community is properly facilitated:
1. Government was urged to establish a committee made up of Council of Islamic Ideology members, religious scholars, legal and medical experts to study the law because it was said that multiple terms and provisions used in the Act have been influenced by western culture. Hence, are inconsistent with Islamic principles.
2. The Council of Islamic Ideology requested a revision. They proposed to substitute the word intersex with transgender in the Act by stating that the Senate Standing Committee on Human Rights hastily used the term intersex without having a true understanding of what gender is and reduced gender to a biological issue only.
1. The language used in the Act should be clear and concise. There should be no ambiguity, in both meaning and structure overall. For example, the Act defines the term transgender as someone who is intersex. Even though both the terms have various similarities, still they are very different in nature. Therefore, the definition should be amended to remove any confusion between transgender and intersex people.
2. Name of the Act should be revised and amended by legislators as it confuses the term ‘intersex’ with ‘transgender’. The word ‘transgender’ should be replaced by the word ‘intersex’ as it is the appropriate word and is recognized in Islam. Whereas, transgender is an umbrella term used for people claiming to have different gender identity as to what they were assigned at birth. This is an entire separate group of people and there is no evidence of self-perceived identity in Islam.
3. Section 3 allows any person to get registered as per their self-perceived identity but it does not mention the category of ‘X’. This is a very major flow and can create a lot of confusion in the society. The category of ‘X’ should be defined in the Act and it should be mentioned in the provisions.
4. Government should formulate a framework of rules and policies for legal gender recognition procedures which would assist in preventing gender discrimination and also to ensure that the transgender people have access to their basic rights e.g. health, education, etc.
5. Interpretation of the term “discrimination” is ambiguous as it does not specify what constitutes discrimination under the Act. There are no alternative remedies, penalties or any procedure mentioned to be followed in case discrimination is committed. For such situations, penal provisions should be added in the law so that the transgender community does not face discrimination and hate crimes.
6. Other laws including the PPC and CrPC should be reviewed again in accordance with the Act to ensure that the rights of transgenders are protected in their true sense. The provisions of other laws should have gender neutral terms so that they are applicable to all genders.
7. Government should establish separate commissions to protect rights of transgender and intersex people, both at federal and provincial level. Robust legislation should be enacted so that the law is fully and properly implemented.
The Transgender Act recognizes the legal status of transgender community and allows them to determine their own gender identity and expression, ensuring their fundamental rights. However, the Act has limitations in addressing substantive equality, providing alternative remedies or penal provisions, or ensuring representation for the transgender community in legislative bodies. Thus, the Act needs further improvements / amendments to address the highlighted concerns in order to ensure effective implementation.
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