Transgender Rights And Their Legal Standing

By: Shan e Fatima

Abstract

This article trends to discuss the evolution of the legal status of Transgender community in Pakistan. What laws has been passed in Pakistan and how their rights are infringed. What should be blueprint to develop medium-to long-term strategies to ensure that they are no more marginalized communities in Pakistan. This article exchange views on Trans community in general.

The term "trans" describes a wide spectrum of people who do not identify with the gender they were given at birth. People who identify as transgender utilize a variety of words to describe their gender identification, accepting the diversity of identity. Therefore, transgender people can be either male or female. Transgender people are frequently referred to as “khuwaja sira” in Pakistan. These people are other marginalized community in Pakistan that face discrimination and violence. They are the most vulnerable community in Pakistan, they live on the periphery of society and are frequently rejected by their families and larger communities. They endure a great deal of physical and emotional abuse as well as discrimination. As a result, individuals frequently lack access to basic human rights such as; education, employment healthcare and much more.

Transgender people enjoyed a particular place in society during the Mughal era when they were employed as "Zanan Khana" protectors in palaces, according to the history of the transgender in the subcontinent. They were also regarded by society for superstitious as well as religious grounds because it was generally accepted that their prayers would be accepted because they had not engaged in any basic sins. Furthermore, it used to be a common practice throughout the sub-continent for Khwaja Saras to dance in celebration to welcome the infant. People used to reward them with money or in-kind donations, which was the primary function at that time.

Transgender people's socio-economic and political status in the subcontinent has radically changed throughout time. The Criminal Tribes Act of 1871, passed during the British era, which classified the transgender people as criminal tribes and socially alienated them, served as a significant impetus for it. It was in effect until 1947, when the local legislatures decided to repeal it. The increasing emergence of the middle class and technological advancements over time brought about alternatives to the entertainment and other social functions that transgender people had historically filled. As a result, their economic prospects were reduced, and given their already stereotypical social standing as living an abnormal life, they began to turn to begging for money on the streets.

Transgender community current condition in the Pakistani culture is still in flux because of persistent stereotyped taboos and conventions that have been established over time. Lack of social acceptance and awareness of the issue has led to violence against transgender people on the mental, physical, and emotional levels. The constitution of Pakistan has given equal rights to all the citizens of Pakistan. The Right to education, privacy, reputation, equality, property, dignity are some fundamental rights available for everyone. The Article 9 of Constitution is Right To Life which is declined to them though discrimination by the society. Article 14 Right To Dignity, Article 25 Right To Equality, Article 23 Right To Property and Article 25-A Right To Education have been unaccessible to them since decades.  

In Pakistan, transgender people did not begin to receive their basic constitutional rights until 2009. The landmark ruling DR MUHAMMAD ASLAM KHAKI VS. S.S.P RAWALPINDI (PLD 2013 SC 188) in favor of the transgender community of Pakistan felt like the first drop of rain for this extremely marginalized section of society, and 2009 ended up being a miraculous year for this community. The brutal attack on transgender people who were performing at a private event in Taxila served as the inspiration for the petition. They were robbed and subjected to sexual abuse by the police. According to the petition, the government of Pakistan has done little to defend the rights of transgender people, leaving them open to abuse from both common people and government employees. The petition demanded that transgender individuals in Pakistan have their constitutionally granted rights to security (Article 9), human dignity (Article 14), property (Article 24), and equality (Article 25) recognized and protected. The Supreme Court issued a number of Orders in response to the petition between November 2009 and September 2012, with the final Order being delivered on September 25, 2012.

Moreover, another historical mark taken by Pakistan government for these innocent people was Transgender Act 2018. The Supreme Court Orders were effective in drawing attention to the precarious situation of transgender rights and igniting a movement for reform. This ultimately resulted in the National Assembly of Pakistan passing the Transgender Persons (Protection of Rights) Act in 2018. The act corrects several issues with the jurisprudence established by the courts and is based on current understandings of transgender people and gender identity. It also offers a framework for the development of a comprehensive rights system for transgender individuals in Pakistan, if it is carried out appropriately. The Transgender (Protection of Rights) Act, 2018, IS created to offer protection, relief, and rehabilitation for transgender people's rights. The rights secured to the transgender community under the 2018 Act are the right to education (Section 8), the right to employment (Section 9), the right to security for sexual harassment (Section 5), the right to safe space and separate prison cells (Section 14), right to hold public office (Section 11), right to inheritance (Section 7), right to health (Section 12), right to vote (Section 10), right to assembly (Section 13), and right to property (Section 15). Moreover, Pakistan is one of only 12 nations in the world that recognizes transgender status on national ID cards.  Anyone who deprives a transgender person of any rights granted under this act, or who forcibly hires or compels him to beg, or who uses him for any illicit and illegal purpose, shall be guilty of an offense under this act, according to Section 17 of the legislation, which outlines offenses and sanctions.

The law, bill, or Act that conflicts with Pakistan's Islamic law cannot be passed, according to the Islamic Republic of Pakistan's Constitution. The bill makes no recognition on a marriage-related right. These ideas and the bill have been misread throughout. According to certain misconceptions, the law would allow for homosexuality, which is against Islamic edicts, and this has led to criticism of the measure from various religious organizations. There have been grievances against these religious organizations based on the idea that same-sex marriages may be prohibited without proper justification. No mention of same-sex marriages is made in the measure, throughout in the bill. Providing protection, relief, and rehabilitation for transgender people is all that is necessary to increase their legal rights specified in the Act.

Despite all these laws and enactments, according to Amnesty International, 18 transgender people were reportedly killed in Pakistan between September 2021 and October 2022. A group that extorts money from trans individuals shot Alisha, a 23-year-old trans rights activist in Khyber Pakhtunkhwa, seven times in 2016, according to local sources. She was taken to a hospital in Peshawar right away, but the staff couldn't agree on whether to put her in the women's or men's ward. According to acquaintances, Alisha died after bleeding to death while being teased by a gang of males. Despite the fact that they are protected by Pakistani law, transgender individuals frequently face discrimination and violence.

It is heartbreaking to see how widespread the problem of transgender people has grown. The general public needs to be aware that just as a man has no control over becoming a man and a girl has no control over becoming a girl, a transgender person has no control over becoming transgender. Every person should be treated with respect because they are all just people. All of the problems and difficulties the transgender population faces are socially constructed, and a socially conscious and responsible society will quickly do away with all of the absurd taboos and standards. The sooner the transgender community in Pakistan accepts people as they are, the better for society.