Corrective Measures For The Safeguard Of Transgenders
“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”.
These powerful words of Justice A.K. Sikri were used for the prosperity of transgenders, back in 2014 in India.
Death of 25-year-old Alisha (a transgender) on May 21, 2016, was allegedly caused by negligence of the hospital which failed to provide her medication on time after she was shot 6 times. Who knows if it was the negligence of the hospital or the eternal doomed fate of a transgender? But this isn’t the story of Alisha only. There have been many reported and unreported cases of the atrocities and brutalities towards transgenders like the incident of gang-rape and murder of two others in Swabi. The victim, Kashi, was shot in the thigh when three armed men broke into her home in Mansehra and attempted to rape her. A recent attack on a transgender in Sialkot, the murder of four transgenders in Peshawar, and graveyard authorities not providing the burial to a transgender and denying to perform burial rites of transgender people are other examples. The tale goes on.
Transgenders have faced deplorable discrimination and extreme abhorrence since ages. The right to dignity, privacy, reputation, equality, liberty, property, education etc. have all been unavailable to them. Even the biggest of all, the right to life enshrined in Article 9 of our august Constitution, is declined to them by such discrimination and ignorance of society. 2009 was thought to be a miraculous year for the transgender community of Pakistan when the landmark Aslam Khaki judgmentin favour of the trans community felt like the first drop of rain on miserably poor souls. The Supreme Court held that eunuchs should be treated equally as other citizens in this country and relish the same rights under the Constitution of Islamic Republic of Pakistan, 1973’. The august Supreme Court directed the chair of National Database and Registration Authority (NADRA) to ensure that a new gender category be created for eunuchs and emphasized that they should be provided Computerized National Identity Cards (CNICs) so that their respective fundamental rights may be enforced. This decision of the court was praised but the trauma, agony and pain, which members of the transgender community have to undergo continued unabated. The reason is that the court addressed the issue from a very strict formalistic lens by saying that they should be granted identity cards while not taking a holistic approach and understanding the complications in the whole process of granting CNICs.
As the court itself upheld the importance of CNICs for the enforcement of fundamental rights, pondering upon the language of our Constitution, one finds that almost 12 out of 24 articles regarding fundamental rights begin with the word ‘every citizen’. Same is used in several articles of principles of policy. So who is a citizen? As per the Citizenship Act of Pakistan, the eclectic category under which many of us fall is regarding those who are ‘born in the territory of Pakistan’. The Citizenship Act also defines citizenship for married women, foreign residents and minors. But nowhere has it defined citizenship for transgender people in particular. In the category of ‘every person’, almost all beings are included. However, in the category of ‘citizens,’ only those who fulfil the criteria of citizenship are included. So what about those who are unable to fulfil that criterion? Among all parameters of acquiring citizenship, the first and foremost thing is to get a birth certificate. Any person claiming citizenship shall apply for Form ‘B’ in duplicate to a Magistrate of the first class of the district where he or she was born. Each form shall be accompanied by a certificate of birth issued by the officer in charge, along with the father’s/spouse’s name. Also, the place and date of birth, supplemented with documentary evidence in support of the claim of birth of self, parent or grandparent is required. Therefore, even after the inclusion of third gender column by NADRA, the hassles that community members faced in obtaining CNICs still remain. It is completely ignored that due to the discrimination they face by their own families, they often do not have birth certificates and other required documentation needed for CNIC issuance. Instead of working to come up with a solution to the unique problems they face, NADRA appears to have done little in this regard. Having a computerized national identity card is a pre-condition to acquire the rights of a citizen.
Let’s take a look at the situation of our neighbouring country India, to which the courts of Pakistan repeatedly make reference to.
On 15th of April 2014 came a landmark judgment from the Supreme Court of India, National Legal Ser.Auth vs Union Of India & Ors . It was pleaded that since the TGs are neither treated as male/female nor given the status of a third gender, they are deprived of many of the rights and privileges of a citizen of this country. The case comprehensively discussed the historical background of this community, their types, the legislations passed in other countries, and that the legal gender recognition is a part and parcel of the fundamental rights to the life of a human being. The judgment exhaustively referred to articles contained in the Universal Declaration of Human Rights 1948 and International Covenant on Civil and Political Rights, 1966. The judgment also elaborated major Yogyakarta principles. Court referred to Anuj Garg v. Hotel Association of India (2008) which upheld that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. The court placed reliance on His Holiness Kesavananda Bharati Sripadavalvaru v. State of Kerala (1973),where it was stated that in view of Article 51 of the Indian Constitution, the courts must interpret language of the Constitution, if not intractable, in the light of United Nations Charter and the international obligations. Furthermore, the court gave thorough elaborations of Articles 19, 14 and 21 of the Indian Constitution with respect to the safeguards for trans community.
Following this landmark judgment came the Ashish Kumar Misra (Advocate) vs Bharat Sarkar Thru. Sachiv on 15 April 2015, which highlighted that the law needs to travel beyond non-discrimination, by recognizing an affirmative obligation of the State to provide access to social security. So the court directed the Centre and the State Governments to extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
In the most recent case, Atri Kar vs The Union of India & Ors (16 March, 2017), the court has ruled that a transgender is entitled to the right to participate in the selection process as a transgender and any form providing for only male and female is in violation of Article 15 of the Constitution of India.
In 2016, the Indian government introduced the Transgender Persons (Protection of Rights) Bill, in Lok Sabha, proving to be a breakthrough novel law that will benefit India’s 4.87 lakh transgender persons. The crux of the Transgender Persons (Protection of Rights) Bill, 2016, is its recognition of gender identity as a nonbinary.
Reverting back to Pakistan, apart from the khaki judgment, there are many few rulings on record regarding this aspect. No such act or legislation has been passed so far regarding the rights of transgenders. The orders given by chief justice Iftikhar Muhammad Choudhry in khaki judgement haven’t found much implementation by the government agencies. Even the landmark Pakistani judgment is nowhere near to the comprehensive Indian judgment. There is no reference to the international laws and conventions on the rights of Trans genders.
Recently a case was filed in the Lahore High Court by Advocate Sheraz Zaka titled as Waqar Ali versus the Federation of Pakistan etc. in which the federal government gave an undertaking before the honourable chief justice that it will include transgender community in the census for the first time in the history of Pakistan. Advocate Sheraz Zaka argued before the court that the transgender community should be allowed to mention their gender in national identity cards and they must be enrolled in the census. Reminding the past brutalities done towards this fragment of society, the learned counsel said that the community had been marginalized in society and subjected to sheer discrimination. Advocate Sheraz Zaka vehemently pleaded that the government should be ordered by the court to legislate on the prosperity of transgender community with regards to the international obligations under the Covenant on Civil and Political Rights ratified in 2010. Chief Justice Syed Mansoor Ali Shah observed that the matter was of public importance and the state should do its best to secure the rights of the transgender community in the light of apex court’s judgments. The court allowed inclusion of TG’s in census earlier this year.
Article 25 of the Constitution of Pakistan, 1973 articulates that:
(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex
While interpreting this article for the transgenders, the initial step which must be taken by the legislature is to address the problems faced by this community in getting citizenship and the national identity cards so that they can be rendered as citizens. The legislature of Pakistan can look up to the policies adopted by other countries regarding helpful modes for the issuance of CNICs to this community. Example of Argentina by simply filling a form and in Malta by requesting the director to change the recorded gender can be used. Also, the example of Ireland, where the Ireland’s 2015 Gender Recognition Bill allows for the acquisition of a new birth certificate, reflects this change. The example of Germany can also be incorporated where a new law allowed the parents to register the sex of the children as ‘not specified’ in the case of children with intersex variation. Those who have no birth certificate must be issued new ones, those who do not have information about their ancestors must be allowed to be marked with their own identity rather than simply refusing them to grant a CNIC. Moreover, nationality and citizenship fall in part one of the Fourth Schedule as entry number 4. So it is in the domain of federal law to make legislations on nationality issues of trans community.
Furthermore, Article 25 in sub clause 2 articulates that there shall be no discrimination on the basis of sex. The word shall make it a mandatory provision and sex do not only means man and woman. Stern actions should be taken by the government who so ever violates Article 25 of this community specifically.
We need to make such legislations which will give positive protection to the TGs. We need to make such legislations which propose corrective actions to remove the stigmas of abhorrence for trans genders from our society. The social and cultural stigmas have led their existence to be permanently marked by disrespectful levity. The comedy shows like khabarnak, khabardar, mazakraat, hasbe haal, samaa 4, syasi theatre, etc have all got fame because of the humour created on mocking this particular fragment of our society. The crew of these shows feel no guilt while freely attacking a specific community just for the sake of getting ratings. Instead of raising awareness for reducing their cultural abhorrence, they find their existence as a piece of amusement. The word ‘khusra‘ or ‘hijra‘ is used as a slang. PEMRA should bring this into their concern and make effective legislations in this regard as well.
This abuse is directly infringing the dignity of the community altogether. Article 14 envisages the right to dignity. The significance of the right to dignity was elaborated in a case 2005 CLC 1392 as one of the cardinal principles of law and most valuable right, which had to be observed in every civilized society and more particularly in an Islamic society as human values were to be guarded and protected in such a society. The dignity of a human is not only provided by the Constitution but under Islam great value has been attached to the dignity of human being. Human dignity, honour and respect are more necessary than comforts and necessities.
Transgenders enjoyed royalty in the Mughal era. Under the Mughal rule, transgenders were called Khawjasaras, a designation of respect and dignity. The Prophet of Islam(PBUH) treated transgenders with respect, prohibited their ill-treatment, and had good things to say about spiritually-inclined transgenders. Believing that transgenders are dearer to God, some Muslim rulers appointed them as intercessors in royal palaces, including those of the Ottoman and the Mughal.
In India, the Mughals appointed transgenders to positions of power and trust. Transgenders served as courtiers and councils, giving advice to princes and princesses. They were familiar with court etiquettes and knew the secret workings of Mughal households. They were domestic insiders..
Necessary steps to be taken:
After the 18th and 19th amendments, education, health and social welfare subjects have been devolved to the federating units so provinces should work on these institutions and stretch them to trans community.
Now it is obligatory for federal and provincial state machinery to take effective steps to ensure the safety and progress of this community.
- Positive protection along with corrective actions is what is required.
- National Council for Transgender Persons should be installed.
- For fair justice, provisions for special Transgender Rights Courts should be enacted.
- Reservations for transgender persons in different departments should be made.
- A quota system just like we have the quota for women, disable, needy etc. is required.
- Legislation should be made making offences against transgender a hate crime.
- No discrimination should be affordable at the workplace so that they must also earn their livelihood instead of just clapping and dancing at traffic signals and wedding ceremonies. A Bill should be passed to protect gender-variant workers from discrimination.
- Just like other students, transgenders should also be granted student scholarships and pensions for the elderly.
- Health care centres should also stretch out helping hands for the community and shouldn’t be reluctant because of petty complications.
- Just like in India, we should also create awareness in schools on gender-variant people by inviting community members and counsellors to talk to students.
- Penalties and fines should be imposed for those who mock, harass, abuse or extort them.
- Vocational centres should be created for training them so that they can earn a respectful livelihood.
- Media should take positive steps for reviving their dignity by screening awareness of their worth. A few programs have been aired in this respect like Khuda Mera Bhe Hai and Aliif Allah Aur Insan.
- Special care centres should be launched for the babies who are disowned by their families just like other orphanages so that they don’t have to be forced to carry tons of cosmetics and clap and dance to earn some measly pennies.
Dr. Muhammad Aslam Khaki v S.S.P. (Operations) Rawalpindi
2014 Indlaw SC 250
3 SCC 1 (paragraphs 34-35)
4 SCC 225
Case: – MISC. BENCH No. – 2993 of 2015
W.P. No.6151 (W) of 2017
 PLD 2017 Lahore 558 (page 562)
2005 CLC 1392
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