The aftermath of the 2012 Supreme Court judgement on the rights of transgender individuals saw a surge in discourse clamouring for better rights for transgender individuals. This sentiment spilled over into the legislative domain as well, with PPP Senator Babar Awan introducing the Transgender Persons (Protection of Rights) Bill-2017 as private member bill in the Senate in January 2017.
Civil society activists and certain senators raised concerns about the bill which meant the bill failed to garner enough votes to pass. The major concerns regarding the bill rested on the provisions calling for screening of transgender persons by concerned district screening committees to verify their gender. This clause was considered a violation of an individual’s privacy under international human rights.
In light of the failed bill, the National Commission for Human Rights has recently drafted a new bill “Protection of Fundamental Rights of Transgender Persons” which shall be enforced in Islamabad Capital Territory. Despite the bill providing basic rights to transgender individuals such as the right to acquire an education, the right to vote, and the right to own property, the bill still fails on multiple fronts to end discrimination against the transgender community.
Section 15 (1) of chapter 5 of the draft bill provides transgender persons the right to enter public places, but limits these public places by excluding places of worship. In effect, this deprives the transgender community from professing their religion because they can be refused entry into religious places of their faith. This clause starkly violates Article 20 of the Constitution which guarantees the right of every person to profess his or her religion. Even the inherent caveat of Article 20 which subjects this right to law, public order and morality does not deprive transgender persons from enjoying the right to profess their religion; because such conditions such as law, public order and morality attached with the right to profess religion do not mention or include the word gender.
The draft bill also fails to provide security to transgender persons who are threatened by their families or forced to leave their homes due to family pressure. Notably, the bill presented by Senator Babar Awan included a provision on this matter which read, “No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such person”.
The current bill, on the other hand, has no clauses which would penalize the separation of transgender persons from their parents and their forced eviction from their parents’ homes. Unless such a clause is added to the bill, a large number of our transgender community will continue to suffer from the emotional scars and material losses caused by forced separation from their parents and eviction from their homes.
The draft bill protects basic rights of education, vote, and property ownership to transgender individuals, but it still fails on multiple fronts to end discrimination against the community
The struggle for the rights of the transgender community must not be limited to our legislature, however. Simply because of the stigma attached with identifying as a transgender individual, many transgender persons are forced to live lives of misery and want. It is necessary, therefore, that the bill have a section on raising awareness regarding the plight of transgender individuals, and the bill must ensure transgender individuals are accorded due respect from society and from government officials-especially the police.
The draft bill also provides for the creation of the institution of Ombudsman to record and address the grievances of transgender persons. Unfortunately, due to the weak culture of administrative justice in Pakistan, judicial and semi judicial mechanisms are considered the panacea to most of our problems. The provision of the draft bill which establishes the institution of the Ombudsman reflects a similar dilemma.
In addition to this, the various institutions of Ombudsman in Pakistan have not successfully delivered on their promises in the past. It is crucial, therefore, that the bill must guarantee the rights and lives of transgender citizens both through the office of the Ombudsman and through the departments of administrative justice, such as the police.
Any law which promotes discrimination is against the concept and spirit of human rights. Hence, it is crucial that legislators fundamentally revise the present bill to ensure freedom of religion for the transgender community. The clause which proscribes transgender individuals from entering places of worship must be removed; since non-discrimination stands at the centre of human rights doctrine.
The writer has a master’s degree in human rights and democratization from the University of Sydney
Published in Daily Times, June 21st, 2017.