Gender identity is, perhaps, the most important aspect, which determines the psycho-social behaviour of humans. A gender identity crisis not only leads to a problematic social life but also lowers the self-esteem of an individual, which may potentially lead to his socio-economic and political alienation.
Normalcy is conformity to prevalent norms of the majority. The binary gender definitions serve the purpose of the dominant majority. Hence, the third gender, transgenders and the gender queer do not fit in the binary gender mainstream. The struggle for mainstreaming the transgender persons is an on-going phenomenon around the world. However, their full-fledged acceptance in the gender codes remains to be achieved. Efforts for mainstreaming the transgender persons in Pakistan have shown some progress in recent years through judicial decisions and legislative instruments.
However, despite fundamental guarantees protected under the constitution of Pakistan, which prohibits discrimination based on gender, special laws had to be enacted to call for affirmative action by the government.
This alludes to misplaced state priorities regarding affairs of the transgender community. Moreover, it also shows the societal will, as represented in the constitution, is perhaps, no more than a theoretical aspiration because the transgender persons are heavily grieved by how society treats them in the real life.
If we look at the history of the transgender community in the sub-continent, it is observed that transgender persons known by the term ‘Khwaja Sara’ held a special recognition in the society during the Mughal period when they were employed as guardians of the ‘Zanan Khana in palaces. Moreover, they were also respected by the society, for superstitious as well as religious reasons; for it was generally believed that their prayers would not be turned down since they were devoid of committing basic sins. Furthermore, it used to be a regular tradition all across the sub-continent at the birth of a child where Khwaja Saras used to celebrate by dancing to welcome the newborn. People used to reward them in cash or kind that used to be the main source of their livelihood. Although it was not their social mainstreaming in the strict sense of the term, however, the societal response towards transgender persons was probably more receptive and their life was proportionately less stigmatised as it appears today.
Over time, the socio-economic and political role of the transgender community in the sub-continent changed drastically. A major stimulus to it was the passage of the Criminal Tribes Act, 1871 during the British era which placed the transgender communities in the category of criminal tribes, thereby, alienating them socially. It remained in force till 1947 after which it was repealed by the respective legislatures. Simultaneously, the gradual rise of the middle class and technological innovations made over time brought in alternatives to entertainment and other social roles which used to be traditionally taken up by the transgender persons. This led to minimising their economic prospects and given their already clichéd social status of an anomalous existence, they started resorting to earn their livelihoods using beggary, selling sex and becoming drug peddlers. It is in this context that the transgender communities in Pakistan have been raising their voices to seek their mainstreaming through the provision of socio-economic and political rights, by the state authorities and the acceptance of their identity, by the society at large, as equal citizens of the state.
Efforts for mainstreaming the transgender persons in Pakistan have shown some progress in recent years through judicial decisions and legislative instruments
Constitutional Petition 43 of 2009
Since the general provisions of fundamental rights given under the Pakistani constitution could only be re-affirmed or enforced through the Court, therefore, first and the most profound Court judgment which specifically pronounced rights of TG persons in Pakistan was given by Supreme Court in 2011 in the Constitutional Petition No 43 of 2009 titled Dr Aslam Khaki vs SSP (Operations) Rawalpindi. This judgment was emphatic because it provided legal recognition to TG persons who are commonly known as eunuchs in Pakistan. It recognised their need for separate identity as the third gender and directed the National Database and Registration Authority (NADRA), Pakistan, for registering them with their separate identity beyond the gender binary. The Supreme Court of Pakistan also recognised their marginalisation and called upon the concerned authorities in the Federal and all Provincial Governments to take necessary measures, on a priority basis, to address issues of transgender persons related to their socio-political and economic rights. It also directed to provide mechanisms for the welfare of TG persons to mainstream them into society.
Though the judgment was declaratory, however, it specifically decided upon two fundamental points of law. Firstly, it provided for the separate recognition of transgender identity by the State authorities. Secondly, it specifically granted the transgender persons, the right to inherit their legal share in both movable and immovable properties and called upon the concerned State functionaries to ensure its enforcement by taking proactive measures in this regard.
The Transgender Persons (Protection of Rights) Act, 2018
With the above pretext, Pakistan’s Parliament legislated upon these matters and passed a Bill which became an Act of the Parliament on May 18, 2018, after receiving the assent of the President it was published in The Gazette of Pakistan on May 24, 2018. The Act contains seven chapters and 21 sections.
These exhaustively comprehensive definitions cover nearly all categories of transgender identities. The Act contains rights of transgender persons under Chapters II, III and V. The second chapter is solely confined to emphasise upon the right to recognition of the identity of transgender persons. The third chapter enlists certain prohibitions against discrimination towards TG persons. Under Chapter V of the Act, protections for transgender persons for the right to inherit, right to education, right to employment, right to vote, right to hold public office, right to health, right to access public offices and right to property have been provided. Moreover, Section 16 of the Act re-affirms the unequivocal availability of any of the fundamental rights given under Part II of Chapter I of the Constitution of the Islamic Republic of Pakistan, to transgender persons
To be Continued
The writer is a freelancer and can be reached at saudzafar5@ gmail.com.