Daily Times

After a prolonged struggle of the transgender community and the transgender rights activists in Pakistan, the Transgender Persons (Protection of Rights) Act was passed in 2018. Besides specifically defining a transgender person, the Act pronounces some of the important rights for transgender community such as the right to choose gender and the right to inherit property. On the inheritance of property, the Act specifically dilates upon the determination of share as well on the basis of gender. For the execution of these and other rights that are enshrined in the Transgender Persons (Protection of Rights) Act 2018, three new forums namely the Office of the Federal Ombudsman, National Human Rights Commission and the National Commission on Status of Women are provided. These are in addition to the existing civil and criminal remedies under the Code of Civil Procedure 1908, Code of Criminal Procedure 1989, Pakistan Penal Code 1860 and the Constitution of Pakistan, 1973.

However, it is important to realize that the major issues that transgender community faces derive roots from family dis-ownership – something that has been completely neglected in the Transgender Persons (Protection of Rights) Act of 2018. The family dis-ownership that the transgender persons face from their early years leads to all the infringements and violations of their basic human rights, also called fundamental rights as per the Pakistani Constitution. The same family dis-ownership has led to creation of a parallel family structure within the transgender community in the form of Guru System. The Gurus within eunuchs are considered as the family heads and they suffer from the same economic, political and social marginalisation as their “cheelas” or the subordinates. The Guru and Cheela system is recognized under the Pakistani Law as well since 2018, when the Lahore High Court in PLD 2018 LHC 54 said that the Gurus shall be treated as parents in cases of the transgender persons whose parentage is not traceable.

The culture of families disowning their transgender children is one of the primary issues facing the implementation of the Transgender Persons (Protection of Rights) Act 2018 because this is the first step where denial to property, education, dignity, health and other fundamental rights begins

The culture of families disowning their transgender children is one of the primary issues facing the implementation of the Transgender Persons (Protection of Rights) Act 2018 because this is the first step where denial to property, education, dignity, health and other fundamental rights begins. If the Act is given a closer look, it becomes evident that it is nothing but a repetition of the Article 8 to 27 of the Constitution of Pakistan 1973, also known as the fundamental rights. Almost all the rights that this Act articulates are the same as given under the Constitution to every citizen of Pakistan, including the transgender citizens. What gap does this Act fill then? The recognition of transgender persons within their families is the fundamental issue that needs to be addressed but remains completely untouched in the special law legislated for the protection of transgender persons’ rights. The fundamental rights of the transgender persons cannot be executed neither can the Act be implemented in its true letter and spirit unless the transgender persons are accepted, respected and treated as a normal child within their own family fabric. To ensure this, it was imperative to highlight this issue as a root cause within the Act and create penal liabilities upon families for dis-owning their transgender children. Violations of transgender persons rights’ begins from their families and continue within society. Hence, it is pertinent to hit the cause where it starts however the Act is completely silent about the family structure and recognition of the transgender persons therein.

If a normal family life is ensured to the transgender persons, most of their rights such a dignity and equality would be automatically protected. This will also lead to an end of the alternative family system for transgender persons which itself is a manifestation of discrimination and marginalization.

The writer is a lawyer, social activist and researcher