Transgender Legislation

Given the widespread discrimination and harassment against them, a large number of transgender children end up dropping out of schools

Transgender Legislation


In the shadows of grand game of snakes and ladder in the country, a small step has been taken by the legislature, which if successful, will be a giant leap towards the emancipation of transgender people in Pakistan. It comprises of a private member bill, for the protection and welfare of transgender people, submitted to the Human Rights Committee in the Senate of Pakistan.

Carrying the stamp of approval of all the major political parties, the Transgender Persons (Protection of Rights) Act 2017 has been drafted by the National Commission on Human Rights (NCHR), and amended by the legislators and experts, after wide ranging consultations with all the stake holders, held at the secretariat of Federal Ombudsman, which included government representatives, lawyers, doctors, NGOs, human right activists and transgender people.

The proposed bill is an attempt to protect the marginalised segments of society that have been unfairly criminalised by the colonial legacy of Pakistani laws

In line with international legal vocabulary, the proposed legislation employs the term “transgender” as an umbrella term to include a range of gender expressions and gene mutations. The British colonial laws used the misleading term “eunuch”, a castrated male, to refer to a diverse group of transgender people, with their special needs.

Until the results of decennial census are released next year, there are no reliable figures of the transgender population in Pakistan, comprising of transsexuals, transvestites, eunuchs, hermaphrodites among others. What is urgently needed is a detailed mapping of transgender populationin in all the provinces along with detailed documentation of their skills set and the challenges they face, which will enable the government to take corrective measures to improve the quality of life of transgender people.

Given the known cases of discrimination and harassment faced by transgender children in their education, a large number of transgender people drop out of school. Even a tiny minority that survives the unending cycle of shame and abuse at the hands of fellow students as well as teachers to get a degree, the prospects for getting a white collar job are marginal. An environment of social apathy has led to the exclusion of the transgender people from social, cultural and economic life of the nation. They continue to be deprived of basic human rights including respectable access to services like education, health and job opportunities.

The proposed bill to empower the transgender community carries the legacy of the path breaking judgment of the Supreme Court in 2009, which granted the transgenders people the right to register as the “third gender”, a national identity card, the right to vote and hold a public office. The bill covers the fundamental rights of transgender people including the right to education, employment, health, inheritance property and assembly. In line with the past Supreme Court judgments, their rights to hold a public office, take part in elections and access to public places are also secured in the bill. To stop the exploitation of transgender people at the hands of law enforcement agencies, a number of amendments have also been proposed in the Criminal Law Amendment Act 2017. The criminal law amendment bill proposes action against the abduction of transgender people, sexual assault and assault or criminal force with intent to outrage their modesty.

The sources and motivation for current drive for transgender rights are diverse but it is important to individually acknowledge the progressive agents of social change in our society for inspiration. The legislators especially Senator Rubina Khalid, Senator Farhatullah Babar, and Nighat Orakzai must be credited for leading the initiative. Federal Ombudsman, Salman Farooqui and his staff members Ejaz Qureshi and Syeda Viquar and Justice (retd.) Ali Nawaz Chohan and his legal team at NCHR must be acknowledged for their substantive input into the bill. Above all, the respected elders of transgender community, such as Bubli Malik, Farzana Jan, Bindyia Rana, and Janat Ali and human right activists such as Qamar Naseem and Sabhat Rizvi deserve an honorable mention for their keen observation and meticulous amendments to the proposed bill.

Some quarters are trying to muddle the discourse and misreading the proposed bill as an attempt to legitimatise lesbian and gay lifestyles. Far from that, the proposed bill is an attempt to protect the marginalised segments of society, who have been unfairly criminalised by the colonial legacy of Pakistani laws. For instance, the khwajasira has no right to assembly by law, therefore, to hold their community gatherings, their gurus have to seek permission from the office of the District Magistrate. Otherwise, police raid their homes to break their birthday parties and take them into custody for violating the law. No such discriminatory laws exist against public gathering of Pakistani men or women, be they lesbian, gay or straight citizens.

In a patriarchal society, steeped in the norms of hyper masculinity,the very phenomenon of a transgender person is a universal lexicon of male insult. Leading the life of a khwajasira in our society is equivalent to walking on the burning coals of fire. Those who enter the transgender community and adopt the lifestyle of khwajasira pay an enormous social, economic, emotional and moral cost, a cost too high for any person to bear, without deep unconscious psychological drives. Therefore, the right to hold a gender identity other than one ascribed at birth, so painfully claimed by the transgender souls should be respected by the mainstream society.

 

The writer is an anthropologist based in Islamabad and serves as an advisor to the Centre for Culture and Development

 

 

Published in Daily Times, July 17th , 2017.