The State Of Transgender Rights In Pakistan
It is worth questioning ourselves whether in a country that struggles to provide food, shelter and clothing to its citizens, there is any need or even desire for a movement that seeks to protect civil and political human rights. Many still claim there is no place for human rights ideals in our part of the world; unsurprisingly enough, most of these voices come from a place of privilege where it is easy to confuse rights for luxuries. For those falling under the ‘Sunni Muslim physically able male Pakistani’ prototype, the whole ‘rights business’ is probably little more than a superfluous exercise in utopian words. It is the marginalized groups, however – the ethnic, religious and gendered outlaws of our society – that need this discourse to survive as it offers the only way to bring their legitimate demands into mainstream politics.
Just like women in Pakistan, who despite the majority of numbers remain a minority in terms of power within a largely patriarchal setup, members of the transgender community (locally known as khwajasaras) are disowned by the same male-dominated familial structures. Despite the cultural diversity in the land, a common reality is that caste and family name form a strong part of one’s identity as a Pakistani. To be disowned means to have no clan protection, leaving one at the mercy of the larger state-society complex; forever a burden on their modesty and a mule for their honour. Not only does this make them more vulnerable as targets of hate and discrimination, but also less problematic as victims.
The first challenge as a victim of crime is faced at the stage of reporting. Neeli Rana, a prominent transgender activist in Lahore working as a Field Supervisor at Khwaja Sarah Society (KSS), speaks of the abysmal state of affairs within police stations, the supposed safety heavens for citizens of Pakistan.
“Those members of the community without connections in the media are treated like they were subhuman. Beating, harassing and insulting are part of the police experience. In those cases, where someone wants to register an FIR, the police officers dilly-dally and treat the whole affair as a joke.”
In general, the community has expressed strong criticism of how the criminal justice system at large operates. Not only is there violent pressure and continued threats from perpetrators (mostly, criminals affiliated with organized syndicates), the experience of interaction with the police itself opens an altogether new ambit of vulnerability.
As recently seen in the gang rape case of two transwomen in Faisalabad, Julie and Nomi, there exists a dangerous lack of sensitivity. Moreover, bringing public attention can not only expose individual victims but has the domino effect of threatening the entire community; a threat to one khwajasara is a threat to her companions, gurus and supporters in the civil society. Since invisibility has become a way of life for the community, it is always safer to hide and let the perpetrator go. Where there is no protection from family or the state, it seems there is no better alternative. This is the very culture of silence and impunity that is responsible in the rise in hate crimes in the first place.
In the rare event that a charge is successfully made, there remains the constant, looming pressure to agree upon a settlement outside court. A victim may choose to pardon the perpetrators in exchange for monetary compensation under the principles of Shariah, consequently, freeing themselves of the threats of use of force and also in many cases offering a source of sustenance for the household. This practice is even more problematic where the crime is murder. In such cases it is the legal heirs (wali) of the victim that receive blood money (diyat) in exchange for pardon. Often, families that have previously disowned and ostracized their khwajasara kin for many decades, will accept compensation only to ease their own financial troubles.
Beyond justice in criminal cases, protection of fundamental rights of transgender individuals requires structural changes in the long run within public and private sectors. As far as this movement to safeguard their constitutional rights is concerned, it is the public establishments that ought to lead by way of example. Not only does the state have a moral duty to care for what happens to one of the most abused, harassed and persecuted communities in society, it is also obliged under the Constitution to ensure that within state-run institutions, say, educational, health and prison facilities, special measures are undertaken to accommodate their needs.
The potentially fatal consequences of this lack of special protection were painfully obvious in the recent murder case of Aleisha, a trans activist from Peshawar. Bouncing back and forth between the male and female wards of Lady Reading Hospital, she died as much as a result of the criminals who violently attacked her as the negligence of the health establishment that was at best unable and at worst unwilling to provide adequate medical assistance in time. This regrettable lack of infrastructure to meet the needs of transgender patients is a glowing example of the inability of the state to ensure that within government-funded institutions services are provided to citizens without discrimination – an obligation in law upon all state institutions under Art. 25 which clearly states: ‘There shall be no discrimination on the basis of sex’.
Moreover, the degrading and inhuman treatment afforded to Aleisha and her friends by the members of the medical/ administrative staff fell not only well below all standards of etiquette but also amounted to a flagrant violation of their inalienable rights under Art. 14 of the Constitution as well Pakistan’s international commitments under the United Nations Convention Against Torture (UNCAT) that serve to protect the dignity of every citizen regardless of gender, religion or ethnicity.
Our unheard, unanswered and certainly unresolved question is that if the law refuses to discriminate, where do the officials acting on behalf of the State find their justification in doing so?
It is not only important that instances of rape, harassment and torture are dealt via legal channels on a case-by-case basis, it is also essential to invest our energies in litigation that takes up a broader and institutional approach to affect policy changes in the long run. During our conversation with Hamza Haider, who currently serves as the Legal Director at the Centre for Restoration of Human Dignity (CRHD), he stresses upon the importance of ‘strategic litigation as the only sustainable way of improving the state of transgender rights as a matter of both public interest and fundamental right under Article 199 (2) of the Constitution of Pakistan’.
Ultimately, this road to justice for a minority group that has until now survived on the peripheries of our perfect little worlds, deserves to reach a point where they have a voice within representative policy-making. Following a Supreme Court ruling in 2011, transgender individuals are eligible to contest elections; however, the real chances of a transgender person joining the parliamentary ranks are limited given that voting in Pakistan is constituency-based and the geographically dispersed transgender community lacks the localized density needed to win a majority in elections. In this rather bleak picture of the future, reserved seats on the basis of regional quotas are possibly the only effective and permanent solution that can offer the community a real hope of participation in the democratic process.
The views expressed in this article are those of the authors and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which they might be associated.
