A growing and coordinated attack on the rights of transgender people is taking place through the bill regarding Intersex Persons (Protection of Rights) (Amendment) Bill 2022, which aims to make changes to the existing Transgender Persons (Protection of Rights) Act 2018, and sadly it is receiving support from people across Islamist parties and the political spectrum. The attack is successful because its proponents are using myths and misconceptions about transgender persons to cloak their efforts under a veneer of same-sex marriage and concerns about Islamic injunctions. In reality, this attack threatens the well-being and lives of not only the transgender community, particularly the youth, which is one of the most vulnerable communities in our society but also of all of us.
To understand, a transgender (often abbreviated as trans) person is someone whose gender identity or gender expression does not correspond with their sex assigned at birth. Lesbian (a woman with same-sex attraction) and gay (men with same-sex attraction) are different concepts entirely. So from the definitions there is a clear distinction and difference between transgender persons, lesbians, and gays—same-sex marriage does not fall in the transgender category.
It is pertinent to mention here that a transgender person is of the opposite gender—they do not have same-sex attraction or marriages within their community. So, the controversy and baseless criticism from the different segments of society is a failure to understand the equality of citizens and fundamental rights. The Quran, the holy book of Islam, indicates that both men and women are equal. The bill which is being criticised also elaborated that the term “transgender” was launched by an American psychiatrist in 1965. It was essentially meant for persons who experienced sexual orientation against their sex at birth. It is primarily a disordered mental state where a man might feel like a woman or a woman felt like a man or sometimes even might have “fluid gender perceptions” which was called “non-binary” gender. It was a psychological/psychiatric state of mind and could not be equated to “intersex”. Therefore, it seeks to change the title of the Act to The Intersex Persons (Protection of Rights) (Amendment) Bill, 2022. The 2018 Act defined the identity of the gender minority, prohibited discrimination against them, and conferred rights upon transgender persons recognised as such and a right to self-perceived gender identity, among other things. The law ensured issuing of a certificate of identity to transgender persons, provided that no establishment shall discriminate against transgender persons in matters relating to employment, recruitment, promotion, and other related issues, and provided for a grievance redressal mechanism in each establishment. Section 3(2) of the Act read that a person recognised as transgender under sub-section (l) shall have a right to get himself or herself registered as per “self-perceived gender” identity with all government departments including, but not limited to, the National Database and Registration Authority (NADRA).
Under the Constitution of Pakistan 1973, Article 25-A clearly states that: (1) All citizens are equal before the law and are entitled to equal protection of the law. (2) There shall be no discrimination based on sex. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. Unfortunately, the same article of the constitution has been violated since its insertion.
It is necessary also to see the state of affairs when it comes to women, children, transgender persons, and minorities’ rights as our collective failure as a society. The Noor Mukaddam murder, which features in the HRCP’s report, was emblematic of inhuman violence and brutalities women are often subjected to by people they know, yet legislation against domestic violence was scuttled by the Council of Islamic Ideology based on its narrow interpretation of the law. The CII also opposed a bill on forced conversion, despite the abduction and conversion of young, non-Muslim women, often minors, remaining a major rights issue.
Moreover, Islamist parties and CII also oppose the recent transgender bill passed by the parliament Likewise, a recent spate of killings of transgender persons in Khyber Pakhtunkhwa and all over the state highlights that much remains to be done till members of the community are to be considered equal humans by society, let alone equal citizens of the state.
Violence in Pakistan and the extremist conflict with the government have heightened humanitarian problems in the country. With the legislation enacted in 2018, Pakistan appeared to cut through that morass, allowing people to designate their gender unhindered and to live without discrimination. To many people, it was an extension of South Asia’s centuries-old history of transgender—or “third gender,” a term some now reject—people living openly, with relatively greater acceptance than in much of the world. But enforcement of the law has been inconsistent in the country’s provinces, which are responsible for local implementation of federal policies across fields like health, education, security, and family law.
It is reiterated that if the State offers protection to the transgender community along with women and children under Article 25 of the Constitution, they could be further protected as any negative discrimination against them would be a violation of the Constitution. The law bounds the Government to “take steps to provide free and compulsory education to transgender persons as guaranteed under Article 25A”. “It is the education that is making a difference and helping the community to fight the harsh perceptions about them,”.
In Pakistan, same-sex sexual activity is not only illegal, as it is in dozens of countries, but it can also be punishable by execution. How that applies to transgender people remains murky, but some Pakistani courts and Muslim clerics have said that a transgender person can marry, as long as the two partners have different gender expressions. Even so, some public figures have pushed back hard against the expansion of transgender rights.
Gender identity is one of the most fundamental aspects of life which refer to a person’s intrinsic sense of being male, female, or transgender. Everyone is entitled to enjoy all human rights without discrimination based on gender identity. Everyone has the right to recognition everywhere as a person before the law. It is high time to change our mindset and society and to realise that a person of diverse gender identity shall also enjoy legal capacity in all aspects of life.
Transgenders are as respectable and dignified citizens of this country as any other person and they are also entitled to all fundamental rights including the right to education, property, and right of life which include quality of life and livelihood. They cannot be deprived of their rights for the mere reason that they are transgenders and do not know the whereabouts of their parents, without any fault of their own. Public functionaries and policymakers are expected to be more sensitive toward restoring the dignity of the transgender community rather than adding to their existing plight.