How Constitution of Pakistan protects rights of transgender individuals

In the words of Justice A K Sikri “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."

Seldom does our society realise or care to realise the trauma, agony and pain that the members of the transgender community undergo, nor appreciate the innate feelings of the members of the transgender community, especially of those whose mind and body disown their biological sex.

Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, and hospitals, they are sidelined and treated as untouchables.

We forget the fact that moral failure lies in society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change. It goes without saying that we are all Allah Almighty’s creation. There is a misconception about members of the transgender community that they are deviants and unworthy of respect and dignity. People often forget that they are created by Allah and, like any human being, are not given the option to select their gender while they are being created.

In this article, I intend to shed some light on problems being faced by transgender individuals in a country like Pakistan.

Constitutional dilemma for transgender individuals

For ages, transgender individuals have faced deplorable discrimination and extreme abhorrence from society. The right to dignity, privacy, reputation, equality, liberty, property and education, among other fundamental rights, 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. The right to dignity enshrined under Article 14, the right to equality under Article 25, the right to property under Article 23, and the right to education under Article 25-A, have all been unavailable to them for decades.

Aslam Khaki case: a blessing in disguise for transgender individuals

It was not until the year 2009 that transgender individuals started receiving their basic fundamental rights. In fact, 2009 turned out to be a miraculous year for the transgender community of Pakistan when the landmark judgment in the case of Dr Muhammad Aslam Khaki Versus SSP (Operations) Rawalpindi reported as 2013 SCMR 187, PLD 2013 SC 188 in favour of the transgender community of Pakistan felt like the first drop of rain for this extremely marginalised section of society. 

The Supreme Court directed for the transgender community to be treated equally as other citizens in the country and relish the same rights under the Constitution of the Islamic Republic of Pakistan, 1973.

The decision of the court was praised but the trauma, agony, and pain that the members of the transgender community had to undergo continued unabated. In this case, the apex court recognised and upheld the importance of the issuance of computerised national identity cards (CNIC) for the enforcement of the fundamental rights of the transgender community.

How courts came to rescue of transgender individuals?

Ever since the landmark judgment in the case of Dr Muhammad Aslam Khaki Versus SSP (Operations) Rawalpindi, the courts in Pakistan have been safeguarding the rights and interests of transgender individuals time and again. 

Just recently, in a case titled "Zarmeen Abid Versus National Database and Registration Authority Islamabad" through chairman and five others reported as PLD 2022 Lahore 39 — a case pertaining to the issuance of CNIC to eunuchs — a single bench of the Lahore High Court while re-iterating and re-affirming its earlier view on the subject in the case titled Mian Asia vs Federation of Pakistan through secretary finance and two others PLD 2018 Lahore 54 was pleased to hold that “the denial of a CNIC to eunuchs is a blatant violation of the right to identity as such denial is an unlawful interference with the said right”.

Likewise, in the case titled "Faizullah Versus Punjab Public Service Commission" through secretary and four others reported as PLD 2021 Lahore 284, a single bench of the Lahore High Court was pleased to recognise the status of transgender individuals by holding that “transgender person was neither an option nor a preference but a recognised and respectable third gender all over the world”.

Some recent developments in respect of transgender individuals

In the year 2018, the National Assembly of Pakistan was pleased to pass the Transgender Persons (Protection of Rights) Act, 2018, which was designed to provide protection, relief, and rehabilitation of rights of the transgender persons and their welfare and for matters connected therewith and incidental thereto. 

As the transgender community has suffered badly at the hands of society, this act was an effort to undo the oppression and to change the mindset of the people toward trans-identities. This act also provides protection and relief to transgender people by securing their rights – the rights that are already given to them by the Constitution, thus nothing new is to be rejected on any grounds.

What exactly are the rights available to transgender individuals under the 2018 Act?

The right guaranteed to the transgender community under the 2018 act comprises the right to education (Article 8), the right to employment (Article 9), the right to security for sexual harassment (Article 5), the right to safe space and separate prison cells (Article 14), right to hold public office (Article 11), right to inheritance (Article 7), right to health (Article 12), right to vote (Article 10), right to assembly (Article 13), and right to property (Article 15).

How does the 2018 Act protect the rights of transgender individuals?

Article 17 of the act provides for offences and punishments and states that whoever deprives any transgender person of any right conferred under this act or forcefully employs or compels for begging or uses his person for any illicit and illegal purpose shall commit an offence under this act.

Why are people opposing this act, claiming it encourages same-sex marriages?

The starting point for us should be the Constitution of the Islamic Republic of Pakistan, and no law/bill/act can be passed which is in contradiction with the Islamic injunctions of Pakistan.

Nowhere in the bill, it mentions any right to marriage. People throughout have misunderstood these concepts and the bill. The bill is criticised by certain religious parties based on some misconceptions that this law would open doors for homosexuality, which is against Islamic injunctions.

Complaints of these religious groups are from the perspective that there is the possibility of it being misused in terms of same-sex marriages. However, nothing in the bill entertains the notion of same-sex marriages. It is only about strengthening the rights of transgender individuals by providing them with protection relief and rehabilitation of the rights of transgender persons.

This legislation is a revolutionary step towards providing inheritance rights to transgender citizens and to provide them with discrimination-free health care treatment, access to education and jobs. The entire act has no mention of transgender marriage.

This is indeed a step in the right direction for all times to come.