The Parliament of Pakistan had passed the Transgender Persons (Protection of Rights) Act in May 2018 and it might be worth revisiting and appraising this Act. This is because it was a pivotal piece of legislation aimed at securing rights for a community which had largely remained ostracised by mainstream society. The Transgender community had faced recurring violence and discrimination since the inception of Pakistan, alongside being forced into begging, sex work or dancing just to survive. A 2017 national census counted 10,418 transgender people out of 207 million in the country, but rights group TransAction estimated there are at least 500,000. Only recently in 2012, Pakistan’s Supreme Court, in Khaki v Rawalpindi, had ruled for the first time that transgender persons had equal rights with all citizens of Pakistan. The court ordered that a “third gender” category was to be included on national identity cards which made it possible for them to vote.
The Transgender Persons (Protection of Rights) Act went further than this. Section 3 of this Act allows self-identification, so that a transgender person has the right to determine their own self-perceived gender. Sections 4 and 5 expressly make both discrimination towards and harassment of transgender persons unlawful. Passing this law has therefore been an ambitious move, especially since the ill-treatment towards transgender persons has echoed from the time of British colonial rule in the sub-continent. The Criminal Tribes Act, 1871 at this time referred to transgender people as “a criminal tribe” which meant they were be treated under the law as habitual criminals.
One of the important questions that arises from the enforcement of this law is that of how far self-determination of one’s gender under section 3 will be compatible with broader LGBTQ+ rights in a country where there are strict criminal penalties attached for homosexual acts. Article 377 of the Pakistan Penal Code directly prohibits homosexual acts, deeming them “unnatural offences” whereas Part II of the Pakistan Constitution indirectly prohibits these, by demanding adherence to Islamic principles which do not allow same-sex marriages. One clear manifestation of this problem is the recent case in Pakistan where the Lahore High Court ordered the formation of a medical board to do a “gender test” on a trans man who was accused of changing his gender to marry a woman.
Another matter to examine has been the scope of impact of Sections 4 and 5, which prohibit harassment and discrimination of transgender persons. The International Commission of Jurist reported problems in the implementation and enforcement of the Act in these areas. The Good Thinkers Organization also reported that 51% of the transgender community in Punjab in 2020 have been inflicted with mental, physical and sexual abuse and that 10% were getting unfair treatment from government departments. Also, there have been numerous reports of individual cases of violence and humiliation around the country. On the other hand, we see some positive developments towards inclusivity too. Recently Pakistan welcomed Nisha Rao, its first transgender lawyer, who went from begging to fighting in court, and Marvia Malik, its first transgender TV anchor. It established for the transgender community 5% of jobs in the Sindh police force, gave Muhammad Zahid alias Nomi, a transgender person a job in the federal government for the first time, and even saw its first transgender madrasa in the capital city to show acceptance and assimilation for transgenders into society, away from the streets and brothels which previously were the only places which welcomed them.
Despite the problems highlighted and the fact that the Act is still in its formative years and being studied in a landscape complicated by delays due to the Covid-19 pandemic, we do see the promising start of progress in legal and judicial approaches to the transgender community in Pakistan. In Faizullah (PLD 2021 Lahore 284), for example, Justice Faisal Zaman recognised the need to look into formulating more comprehensive policies to ensure rights of transgender persons in “both letter and spirit.”