Daily Times

In this article, the focus is limited on the following five categories of the rights of transgender persons. It analyses the provisions of the Act related to them.

Right to identity
The marginalisation of transgender persons is considered to have been rooted in the persistent denial of the most fundamental right of gender identity. Although the Pakistani Constitution prohibited any discrimination based on gender alone, however, for transgender persons, the essential issue had been the absence of alternative gender identity in a gender binary society.
Realising the need to address this issue, the Act has laid down greater emphasis on the recognition of the identity of transgender persons by providing it as a right under a dedicated chapter. It is because the right to identity is the founding right from which all other rights flow out.
Section 3 of the Act grants the right to a transgender person to be recognised as per his or her self-perceived gender identity. It is important to note that the right to recognition of identity as a transgender person is restricted to the self-perceived gender identity. It does not include gender expression, based on the perception by others. Moreover, the Act also guarantees the protection to the identity of transgender persons against harassment under Section 5, whereby the harassment of transgender persons, both within and outside the home, based on their sex, gender identity and gender expressions, has been prohibited.

Right to education
Lack of access to education, arising out of the societal neglect and social stigmas, has inhibited the mainstreaming of the transgender community in Pakistan. The transgender persons in Pakistan have customarily been living in their communities under the guardianship of their Gurus as they are usually abandoned by their parents at tender ages. Therefore, the constitutional rights to education, guaranteed under Article 25A of the Constitution of the Islamic Republic of Pakistan for free and compulsory education, required re-affirmation under the Act vis-à-vis the transgender persons, especially after the legal recognition to transgender identity by the Supreme. In that context, the Act, under Section 8, prohibits any discrimination against transgender persons in acquiring admission in any educational institutions, public or private, subject to fulfilment of the prescribed requirements. Additionally, under the same section of the Act, prohibitions against discrimination have been imposed on any opportunities for sports, recreation, leisure activities and any other positive externalities associated with the education, based on person’s sex, gender identity and expression. Under Section 4 of the Act, it has also been prohibited to discriminate against a transgender person and deny, discontinue of, or treat him or her unfairly in educational institutions and services thereof.

Right to employment
According to a study conducted by LEAD Pakistan, social discrimination in employment is one of the main factors of involvement of the transgender persons in sex work. Unfortunate but inevitable entrapment of many Khawaja Saras in prostitution reinforces the stigmatisation of the whole community as outcasts. Abandoned by the family, unable to obtain proper documentation, education and employment, many transgender children take up sex work to survive in an unfriendly environment. In that contextual framework, the Act under Section 9, builds upon the right to employment guaranteed under Article 18 of the Constitution of the Islamic Republic of Pakistan by re-affirming the non-discrimination against any transgender person relating to matters connected with the employment including, but not limited to, recruitment, promotion, appointment, transfer and other incidental issues. It also protects the adoption of any lawful profession or occupation and conduct of any lawful trade or business by the transgender persons. Moreover, under Section 4 of the Act, safeguards have been provided for discrimination against transgender persons in denial of access to any opportunities of employment or any unfair treatment in government or private establishments, organisations, institutions, departments and centres.

Right to health
To respond to the need for equal access to healthcare facilities, the Act, under Section 4(d) prohibits the denial or discontinuation of, or unfair treatment in, healthcare services. Moreover, Section 12 of the Act categorically calls upon the Government to review the medical curriculum and improve research for doctors and nursing staff to address specific health issues of transgender persons in cooperation with the PMDC, facilitate access of transgender persons by providing them a safe and enabling environment in hospitals and ensure transgender persons access to all necessary medical and psychological gender corrective treatment.

Right to inheritance & property
One of the key themes dealt by the Supreme Court of Pakistan while hearing the Constitutional Petition was its decision on the grant of inheritance rights to transgender persons under the relevant laws and calling for the Government of Pakistan to undertake proactive measures to ensure that. In continuation to that, the Act, under Section 7, has re-affirmed the right to inherit the due share in the property by transgender persons under the law of inheritance as per the gender declared on their Computerized National Identity Card (CNIC). The same section of the Act also lays down the procedure for the determination of their share

To Be Continued

The writer has done MPA and is associated with Public Policy Think Tank