Huzaima Bukhari

“We just wanted to help people understand that it’s okay to be a transgender, and they’re just like everyone else”—Jazz Jennings

In February 2019, my article titled ‘Transgender dilemma’ was published which was although appreciated by the ones who feel for their plight, but left me thinking that by merely writing on the issue, had I absolved myself from all humanistic duties? Do I not owe it to these complex human beings to find ways and means so that they too can enjoy a minimal level of respect from society? To put my idea into action, I sent one of my staff members to the transgender locality to find someone young, who was willing to learn some skill to enable her (preferred form of address) to lead a decent life. I was ready to provide employment in one of our offices. However, he returned dejected by the way the guru treated him. The guru found the whole idea quite abominable, casting doubts on our good intentions. For her, just like others, perhaps it was difficult to perceive that a transgender could be seen as a respectable person and not merely a sexual object.

In the West there is tremendous awareness about this critical problem and to some extent, transgender people are not seen as unusual or unfit to lead normal lives.

In Pakistan, the situation is quite different. Being highly marginalized, their assimilation in our society has yet to see the light of day. Questions keep popping up in mind that if the procreative ability is missing from the lives of transgender or Khwaja Sira as they are popularly known here, then how come this community boasts of almost 400,000 members (and not 10,000 plus as per government statistics)? After all, women beget them then how do they end up in specific localities? Who are their parents who mercilessly discard their offspring to lead a most unthinkable and miserable life? How do the young ones end up in tutelage of a guru?

Agitated by these questions and browsing the web for answers, I came across the website of Gender Interactive Alliance Pakistan, a non-governmental organization formed in 2002 that is actively working for the welfare of transgender persons in Pakistan. This provided me with a golden opportunity to learn some hard facts directly from its president, the very vibrant Bindiya Rana. Fully motivated to revolutionize the Pakistani transgender persons’ destiny, she is actively engaged in politics and various projects pertaining to the general welfare of her people. She rightfully claims that they are part of the human community then yet there is so much discrimination and resentment that they are forced to live in exclusive colonies which she likens to a zoo as if they are altogether a separate specie like other exotic animals. Indeed, a very valid point!

On inquiring about how the community multiplies, I was told that when a transgender individual is born in a family, the mothers are usually the ones to own her but siblings and other relatives feel uncomfortable and insist on sending such a person away. In many cases, the traumatized children flee homes and take shelter with sympathetic gurus, who eagerly welcome them with open arms, provide them with a home and parental love. Depending on the guru’s own credentials, these children can either become beggars or as I was informed, there are some double masters and skillful persons ably running their own businesses. Bindiya informed me that in Baluchistan and some rural areas, families cherish their transgender offspring whom they engage in farming and related activities. This means that not all such humans are abandoned or disowned by their blood relations, which is quite comforting.

According to Bindiya, there is a dire need to allow her community to get access to good educational institutions for creating awareness among the younger generation and allow them to attain high standard education to cast off that stigma because of which they are unable to adjust in the normal society. Employers must be more understanding and not demand change of appearance as a precondition for giving jobs. If a she-male feels happy in a woman’s attire, she should not be forced to cut her hair and wear men’s clothes. In other words, form must not be made an excuse for not accommodating a transgender job-seeker. People must learn to appreciate them for who they are and desist from making fun of them or talk to them in a nasty manner.

Bindiya’s quest for basic entitlements has brought her to the political forefront. She has to her credit, the passage of The Pakistan Transgender Persons (Protection of Rights) Act of 2018 (the Act) in May 2018 following nine years of continuous struggle to secure certain rights from the government. Prior to the Act, a transgender person was dealt with in a grotesquely inhuman manner, being denied the right to education, to inheritance, to vote, to intermingle freely with other members of the society, to hold public office etc. This Act is quite a major break-through for the community, ignored by successive governments because of which it has suffered since long and has unfortunately remained a target for ridicule and abuse by people without a conscience. Perhaps the best thing this Act has done is to allow a transgender person to determine his/her sex according to his/her self-perception rather than the gender assigned at birth—section 2(n).

Now the next move is to secure a seat in the Parliament to address transgender issues in a more emphatic way. The governments have deliberately declared a low population figure of transgender community to prevent them from becoming a pressure group but with this new alignment, challenges have taken a positive turn in that a better level of consciousness among the transgender community has compelled the government to face them with a seriousness never observed before. The Act has been a major milestone for the Pakistani transgender people who for the first time in decades have achieved a much deserved recognition.

The most intriguing thing that I have learnt from my interaction with this community is that it considers its members as plain human beings without any discrimination on account of caste, creed, faith, religion and sect, which are of least concern to it. Its main objective is to lend support to its people and stand united against any form of maltreatment or violation of their rights.

A transgender person is not born out of choice nor is s/he an outcome of the parents’ fault. A genetic mutation cannot be attributed to human error therefore we honestly need to correct our perceptions and attitude towards these harmless human beings. Just because they do not fit in our set standards does not mean that they are to be abandoned or left unprotected. They should be cherished, cared for and loved with the same passion as our own children and above all, their honour should be guarded as befitting a human being. They may be different but they are definitely not the scum of this earth—for that we have plentiful ‘real’ men and women.   

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The writer, lawyer and author, is an Adjunct Faculty at Lahore University of Management Sciences (LUMS)

How Constitution of Pakistan protects rights of transgender individuals

Members of the transgender community hold signs against the anti-begging law for the transgender community, during a protest demanding jobs in Karachi, Pakistan on April 10, 2019. — Akhtar Soomro / Reuters

In the words of Justice A K Sikri “equality not only implies preventing discrimination but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action, and reasonable accommodation.”

Seldom does our society realise or care to realise the trauma, agony and pain that the members of the transgender community undergo, nor appreciate the innate feelings of the members of the transgender community, especially of those whose mind and body disown their biological sex.

Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, and hospitals, they are sidelined and treated as untouchables.

We forget the fact that moral failure lies in society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change. It goes without saying that we are all Allah Almighty’s creation. There is a misconception about members of the transgender community that they are deviants and unworthy of respect and dignity. People often forget that they are created by Allah and, like any human being, are not given the option to select their gender while they are being created.

In this article, I intend to shed some light on problems being faced by transgender individuals in a country like Pakistan.

Constitutional dilemma for transgender individuals

For ages, transgender individuals have faced deplorable discrimination and extreme abhorrence from society. The right to dignity, privacy, reputation, equality, liberty, property and education, among other fundamental rights, have all been unavailable to them.

Even the foremost right of all —  the right to life enshrined in Article 9 of our august Constitution —  is declined to them through discrimination and ignorance by society. The right to dignity enshrined under Article 14, the right to equality under Article 25, the right to property under Article 23, and the right to education under Article 25-A, have all been unavailable to them for decades.

Aslam Khaki case: a blessing in disguise for transgender individuals

It was not until the year 2009 that transgender individuals started receiving their basic fundamental rights. In fact, 2009 turned out to be a miraculous year for the transgender community of Pakistan when the landmark judgment in the case of Dr Muhammad Aslam Khaki Versus SSP (Operations) Rawalpindi reported as 2013 SCMR 187, PLD 2013 SC 188 in favour of the transgender community of Pakistan felt like the first drop of rain for this extremely marginalised section of society. 

The Supreme Court directed for the transgender community to be treated equally as other citizens in the country and relish the same rights under the Constitution of the Islamic Republic of Pakistan, 1973.

The decision of the court was praised but the trauma, agony, and pain that the members of the transgender community had to undergo continued unabated. In this case, the apex court recognised and upheld the importance of the issuance of computerised national identity cards (CNIC) for the enforcement of the fundamental rights of the transgender community.

How courts came to rescue of transgender individuals?

Ever since the landmark judgment in the case of Dr Muhammad Aslam Khaki Versus SSP (Operations) Rawalpindi, the courts in Pakistan have been safeguarding the rights and interests of transgender individuals time and again. 

Just recently, in a case titled “Zarmeen Abid Versus National Database and Registration Authority Islamabad” through chairman and five others reported as PLD 2022 Lahore 39 — a case pertaining to the issuance of CNIC to eunuchs — a single bench of the Lahore High Court while re-iterating and re-affirming its earlier view on the subject in the case titled Mian Asia vs Federation of Pakistan through secretary finance and two others PLD 2018 Lahore 54 was pleased to hold that “the denial of a CNIC to eunuchs is a blatant violation of the right to identity as such denial is an unlawful interference with the said right”.

Likewise, in the case titled “Faizullah Versus Punjab Public Service Commission” through secretary and four others reported as PLD 2021 Lahore 284, a single bench of the Lahore High Court was pleased to recognise the status of transgender individuals by holding that “transgender person was neither an option nor a preference but a recognised and respectable third gender all over the world”.

Some recent developments in respect of transgender individuals

In the year 2018, the National Assembly of Pakistan was pleased to pass the Transgender Persons (Protection of Rights) Act, 2018, which was designed to provide protection, relief, and rehabilitation of rights of the transgender persons and their welfare and for matters connected therewith and incidental thereto. 

As the transgender community has suffered badly at the hands of society, this act was an effort to undo the oppression and to change the mindset of the people toward trans-identities. This act also provides protection and relief to transgender people by securing their rights – the rights that are already given to them by the Constitution, thus nothing new is to be rejected on any grounds.

What exactly are the rights available to transgender individuals under the 2018 Act?

The right guaranteed to the transgender community under the 2018 act comprises the right to education (Article 8), the right to employment (Article 9), the right to security for sexual harassment (Article 5), the right to safe space and separate prison cells (Article 14), right to hold public office (Article 11), right to inheritance (Article 7), right to health (Article 12), right to vote (Article 10), right to assembly (Article 13), and right to property (Article 15).

How does the 2018 Act protect the rights of transgender individuals?

Article 17 of the act provides for offences and punishments and states that whoever deprives any transgender person of any right conferred under this act or forcefully employs or compels for begging or uses his person for any illicit and illegal purpose shall commit an offence under this act.

Why are people opposing this act, claiming it encourages same-sex marriages?

The starting point for us should be the Constitution of the Islamic Republic of Pakistan, and no law/bill/act can be passed which is in contradiction with the Islamic injunctions of Pakistan.

Nowhere in the bill, it mentions any right to marriage. People throughout have misunderstood these concepts and the bill. The bill is criticised by certain religious parties based on some misconceptions that this law would open doors for homosexuality, which is against Islamic injunctions.

Complaints of these religious groups are from the perspective that there is the possibility of it being misused in terms of same-sex marriages. However, nothing in the bill entertains the notion of same-sex marriages. It is only about strengthening the rights of transgender individuals by providing them with protection relief and rehabilitation of the rights of transgender persons.

This legislation is a revolutionary step towards providing inheritance rights to transgender citizens and to provide them with discrimination-free health care treatment, access to education and jobs. The entire act has no mention of transgender marriage.

This is indeed a step in the right direction for all times to come.