Transgender Rights in Pakistan: The Challenges of Implementing Progressive Legislation

In 2018, the Pakistan National Assembly passed the Transgender Persons (Protection of Rights) Act. At the time, it was seen as an acknowledgment of transgender people’s suffering and was celebrated as a leap toward addressing the issues related to the transgender community. Even the International Commission of Jurists hailed it as a much-needed step in the right direction.

However, as of late, the act has become a cause for a great deal of controversy.

What is the Transgender Persons Act?

The act speaks about the rights that a transgender person would have, which include most fundamental rights matching those of any other citizen protected under the Constitution, placing a specific emphasis on protecting them from gender-based discrimination and harassment.

Most interesting, though, is the way the act has chosen to define transgender persons. It has divided the word transgender to encompass three groups of people: Firstly, Intersex persons, those born with a mixture of male and female genital features or congenital ambiguities; Secondly, Eunuchs born male but that have undergone castration; Thirdly, any person whose gender identity or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth.

This act gives anyone the right to change their gender from male or female to transgender female or transgender male. One need only go to NADRA and change the gender on their CNIC, Driving License, and Passport to their “self-perceived” gender.

So, Why the Outrage?

While the mention of Intersex persons is fine, the other two groups mentioned in the act have ruffled some feathers among conservatives who argue that voluntarily changing one’s gender or even imitating the opposite gender is not allowed in Islam. The greatest opposition to the act comes from Senator Mushtaq Ahmad Khan of the Jumaat-e-Islami. He has two primary concerns; that the gender change would cause disputes in inheritance; and that the act may be abused to allow for homosexuality. Earlier, the Council on Islamic Ideology, a constitutional body that reviews Pakistan’s laws in the light of the Quran and the Prophet Muhammad’s (SAW) teachings, declared the law unIslamic.

An amended bill has been submitted to Parliament, which excludes the provisions for change according to self-perceived gender and keeps only those for intersex persons. A case has also been filed on behalf of the JUI against the act in the Federal Shariat Court, which has been clubbed with the dozen other cases already under process. The court is yet to give a decision on the matter.

And the Reaction to the Outrage?

Transgender rights activists have vehemently opposed the arguments and have termed them political tactics for these parties to enter back into the limelight. They also claim that the act was a step towards reducing violence and discrimination against the transgender community, but the situation has worsened since the opposition began. Pakistan’s Law Minister has termed the claims baseless propaganda but says the Federal Shariat Court’s decision would be final and binding.

The Counter Arguments

In response to the arguments, they say that Pakistan has no means through which a person’s “truly trans” status may be medically verified. The act also does not advocate homosexuality, as there is no mention of transgender marriages or any other law in Pakistan. Also, the gender change in NADRA documents does not show a clear switch to the other side of the binary gender division; rather, it changes from M or F to X to signify a transgender person of either gender identity.

The Underlying Causes

It has been four years since the Transgender Persons Act was published in the official Gazette. It was passed through both houses of the Parliament with a sweeping majority and little to no opposition. Interestingly, it is stirring up such controversy four years later. Even the Federal Shariat Court could not help but ask the JUI lawyer why the case had been brought for review this late and why they voted to favor the act in Parliament.

While both sides have been at each other’s throats for a while, there has been little to no debate. That has consisted of much more than political statements and emotional arguments meant to spark public reactions, which has led to more confusion than it has brought forth solutions. However, the blame for this discourse must go deeper than upsetting politicians and underprivileged groups.

Who or What do we Blame?

Legislation is a very sensitive job. Any vagueness, ambiguity, or mistakes may bring chaotic consequences further down the line; unfortunately, this act is riddled with all three. On the surface, it seems like a breath of fresh air for the historically oppressed transgender community, a political cash cow, in other words. This would make more sense when it is considered that the act was passed towards the end of the PMLN government, and every political party latched on so as not to make themselves look bad in the public eye just before elections.

What Happens When Legislation is Not Thought Out

Now, while the rights of this community can be better protected under this act, the question of who exactly is a part of this community should not be an issue at all, but when legislators copy whatever definitions they may find from Western legislation, they fail to consider the most significant difference; our Constitution requires all our laws to conform with Islamic principles, and they say that a person cannot switch their gender or even impersonate the opposite gender without underlying medical causes. This immediately makes the two definitions, other than that including the intersex, unconstitutional, and it does not help that most of the rules are based on a person’s “self-perceived” gender. Even for the intersex, the issue of surgical gender reassignment is conveniently avoided altogether. Finally, the number one concern of the opposition, same-sex marriage, is left completely open due to a lack of mention of transgender marriage in any statute across Pakistani law.

Much of this would have been avoided if the word “transgender” itself, which is LGBT terminology, was avoided altogether, and the act was confined to the true gender non-binary group; the intersex. The Federal Shariat Court is yet to decide on the matter, and once it does, its directives will be binding on the legislature.

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