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.
The death of 25-year-old Alisha (a transgender) on May 21, 2016 was allegedly caused by the negligence of the hospital which failed to provide her medication on time after she had been 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 alone. There have been many reported and unreported cases of the atrocities and brutalities towards transgenders, including the gang-rape and murder of two 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 burial to a transgender and denying the performance of burial rites for 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 and education, etc. have all been unavailable to them. Even the foremost right of all, the right to life enshrined in Article 9 of our august Constitution, is declined to them through discrimination and ignorance by 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 for these miserable souls. The Supreme Court directed for transgenders to be treated equally as other citizens in the country and relish the same rights under the Constitution of Islamic Republic of Pakistan 1973. The august Supreme Court directed the Chair of the National Database and Registration Authority (NADRA) to ensure the creation of a new gender category for transgenders and emphasized the provision of computerized national identity cards (CNICs) for them so that their respective fundamental rights could be enforced. The decision of the court was praised but the trauma, agony and pain which the members of the transgender community had to undergo continued unabated. 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 or 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’. The 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 is 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 a third gender column by NADRA, the hassles that trans community members have 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 in our neighbouring country, India, to which the courts of Pakistan repeatedly refer.
On 15th of April, 2014 came a landmark judgment from the Supreme Court of India titled National Legal Ser.Auth vs Union Of India & Ors. It was pleaded that since transgenders were neither treated as male/female nor given the status of a third gender, they were being deprived of many of the rights and privileges of a citizen of the country. The case comprehensively discussed the historical background of the community, legislation passed in other countries and legal gender recognition being 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 the International Covenant on Civil and Political Rights 1966. The judgment also elaborated on Yogyakarta Principles. Furthermore, the court referred to Anuj Garg v. Hotel Association of India (2008) which had upheld personal autonomy to include 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, express themselves and 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 the language of the Constitution, if not intractable, in light of the United Nations Charter and international obligations. The court also thoroughly elaborated Articles 19, 14 and 21 of the Indian Constitution with respect to safeguards for the transgender community.
Following this landmark judgment came the case of Ashish Kumar Misra (Advocate) vs Bharat Sarkar Thru. Sachiv on 15 April, 2015 which highlighted that the law needed to go beyond non-discrimination and recognize an affirmative obligation of the state to provide access to social security. So the court directed the Centre and State Governments to extend all kinds of reservation in cases of admissions to educational institutions and public appointments.
In the most recent case, Atri Kar vs The Union of India & Ors (16 March, 2017), the court ruled that a transgender was entitled to the right to participate in the selection process as a transgender and any application form providing only male and female categories was in violation of Article 15 of the Constitution of India.
In 2016, the Indian government introduced the Transgender Persons (Protection of Rights) Bill in the Lok Sabha, which was breakthrough novel law for the benefit of India’s 4.87 lakh transgender persons. The crux of the Transgender Persons (Protection of Rights) Bill 2016 was its recognition of gender identity as non-binary.
Reverting back to Pakistan, apart from the Khaki judgment, there have been very few rulings on record. No such act or legislation has been passed so far regarding the rights of transgenders. The orders given by Chief Justice Iftikhar Muhammad Chaudhry in the Khaki judgment haven’t found much implementation by government agencies. It may be a landmark judgment in Pakistan but it is still nowhere near the comprehensive Indian judgment. It also makes no reference to international laws and conventions on the rights of transgenders.
A case was recently filed in the Lahore High Court by Advocate Sheraz Zaka titled Waqar Ali versus the Federation of Pakistan etc. in which the federal government gave an undertaking before the honourable Chief Justice to include transgender community in the census for the first time in the history of Pakistan. Advocate Sheraz Zaka argued for transgenders to be allowed to mention their gender on national identity cards and be included in the census. Reminding of the past brutalities 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 for the government to be ordered by the court to legislate on the prosperity of the transgender community in light of international obligations under the International Covenant on Civil and Political Rights ratified in 2010. Chief Justice Syed Mansoor Ali Shah observed that the matter was of public importance and directed the state to do its best to secure the rights of transgender community in light of the apex court’s judgments. The court allowed the inclusion of transgenders in the census earlier this year.
Article 25 of the Constitution of Pakistan 1973 articulates that all citizens are equal before the law and entitled to equal protection of the law and that there shall be no discrimination on the basis of sex.
While interpreting this Article for 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 card so that they can be rendered as citizens. The legislature of Pakistan can look into the policies adopted by other countries regarding helpful modes for issuance of CNICs to this community, such as in Argentina by simply filling a form and in Malta by requesting the director to change the recorded gender. In Ireland, the 2015 Gender Recognition Bill allows for the acquisition of a new birth certificate. In Germany, a new law allows parents to register the sex of children as ‘not specified’ in case of intersex children. Those who have no birth certificate must be issued new ones and those who do not have information about their ancestors must be allowed to enlist with their own identity rather than simply being refused a CNIC. Nationality and citizenship fall in Part One of the Fourth Schedule of Pakistan’s Constitution as Entry Number 4 so they are within the domain of the federal law to be legislated upon for the benefit of the transgender community as well.
Furthermore, Article 25 in sub-clause 2 articulates that there shall be no discrimination on the basis of sex. The word ‘shall’ makes it a mandatory provision and ‘sex’ does not mean man and woman only. Stern actions should be taken by the government against whoever violates Article 25 rights of the transgender community.
We need to pass legislation which will give positive protection to transgenders and propose corrective actions to remove the stigma against transgenders. The social and cultural stigmas have led them to disrespected. Comedy shows like Khabarnak, Khabardar, Mazakraat, Hasb e Haal, Samaa 4, Syasi Theatre, etc. have all gained fame because of the humour created by mocking this segment of society. These shows feel no guilt in openly attacking a specific community just for the sake of getting ratings. Instead of raising awareness to eliminate cultural abhorrence, they treat transgenders as a piece of amusement. Words like khusra and hijra get thrown around condescendingly. PEMRA should bring this to their concern and make effective legislation in this regard.
Such abuse also directly infringes the dignity of the community as a whole. Article 14 envisages the right to dignity. The significance of the right to dignity was highlighted in a case 2005 CLC 1392 as one of the cardinal principles of law which had to be observed in every civilized society. The dignity of a human being has not only been covered by the Constitution but has been assigned great value under Islamic principles as well. Human dignity, honour and respect are more necessary than comforts and necessities.
Transgenders used to be treated like royalty in the Mughal era. Under the Mughal rule, they were called khwajasaras, a designation of respect and dignity. Prophet Muhammad (peace be upon him) also treated transgenders with respect, prohibited their ill-treatment and had good things to say about spiritually-inclined transgenders. Believing that transgenders to be dearer to God, some Muslim rulers, including the Ottoman and the Mughal, also appointed them as intercessors in royal palaces. 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 royal etiquette and knew the secret workings of Mughal households. They were domestic insiders.
After the Eighteenth and Nineteenth Amendments to the Constitution, subjects like education, health and social welfare have been devolved to the provinces which should extend their provision to the trans community as well. It is obligatory for the federal and provincial state machinery to take effective steps to ensure the safety and progress of this community, such as the following:
- Positive protection along with corrective actions is what is required.
- National Council for Transgender Persons should be established.
- For fair justice, provisions for special transgender courts should be enacted.
- Reservations for transgender persons in different departments should be allocated.
- A quota system is required.
- Legislation should be passed to make offences against transgenders a hate crime.
- No discriminatory policies against transgenders should be allowed at the workplace. A Bill should be passed to protect gender-variant workers from discrimination.
- Like other students, transgenders should also be granted student scholarships, as well as pensions for the elderly.
- Healthcare centres should expand reach to the community and shouldn’t be reluctant because of petty complications.
- Like India, we should also create awareness in schools on gender-variant people by inviting community members and counselors to talk to students.
- Penalties and fines should be imposed on those who mock, harass, abuse or extort them.
- Vocational centres should be created for training them so that they can earn respectful livelihoods.
- Media should take positive steps to revive their dignity. A few programs have been aired in this respect, such as Khuda Mera Bhe Hai and Aliif, Allah Aur Insan.
- Special care centres should be set up for babies disowned or abandoned by their families.
 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
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.