Trans rights in focus amid Pakistan legal battle

A law that provides legal recognition to transgender persons and prohibits discrimination and harassment has stirred a new debate in the conservative South Asian country where homosexuality is still a crime.

The Transgender Persons (Protection of Rights) Act of 2018 guarantees citizens their right to self-identify as male, female or a blend of both genders, and to have their identity registered on all official documents, including passports, national identification cards, driving licenses and educational certificates.

Though the act was passed by parliament in May 2018, new debates on social media have resurfaced in recent weeks, with critics opposing a specific clause that stipulates that "a transgender person shall have a right to be recognized as per his or her self-perceived gender identity."

Religious party files petition

Clerics have condemned this clause, prompting Senator Mushtaq Ahmad Khan from Jamat-e-Islami, a religious political party, to file a petition in the Federal Shariat Court. The court is separate from civil courts and has the authority to examine whether certain laws comply with Islam.

Senator Khan told DW that he had called for the provision “in which the transgender applicants were given an option … to mention their particular gender” to be amended, stating the decision should instead fall to a medical board. "Permitting gender change is a controversial thing in the act," he said.

In November 2021, Khan proposed the amendment in the senate but it was opposed by then-Human Rights Minister Shireen Mazari.

Azam Nazeer Tarar, federal law and justice minister, said the act was passed to "protect the marginalized transgender community, and give them rights to education, inheritance, health care and employment."

Tarar told DW that the law was passed unanimously by all the political parties following a consultation with the Council of Islamic Ideology, a constitutional body responsible for giving legal advice on Islamic issues to the government.

Pakistan's transgender community still marginalized

Pakistan's Supreme Court in 2009 ruled that transgender people, often known as hijras in the region, could obtain national identity cards as a "third sex." In practice, however, transgender people in the Islamic nation are still widely marginalized and face regular discrimination in education and at work.

Pakistan's 2017 national census estimated the number of transgender citizens in the country to be about 10,000, but rights groups have claimed the figure to be more than 300,000 in the country's total population of 220 million people.

"Before this act, the laws of Pakistan primarily recognized just two genders, and those who did not fall in either had to stick to the gender determined at birth, which resulted in discrimination in school admissions, jobs, opening an account, etc," senior human rights jurist Osama Malik told DW. "This law is one step towards bringing them [transgender people] at par with male and female citizens of the country." 

Rights activists and prominent members of Pakistan's transgender community hailed the bill in 2018 as an important step forward. Activists are now concerned the bill is under threat and that not enough action has been taken by the Pakistani government to enforce equality for transgender persons.

"We were happy that there will be change in our lives, but the benefits of the act have not been attained yet, and we are facing another hurdle," Bindiya Rana, an activist for transgender people, told DW. 

The 2018 act has been declared by religious conservatives as a clandestine attempt to allow same-sex unions.  

"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," said Malik. "The entire act has no mention of transgender marriage."

Farzana Bari, a women's rights activist, told DW that the "landmark bill" had "given gender identity to the vulnerable transgender community." She said the clerics' protest was "a useless plea of reversing gender identity" and had been filed with a "very invalid argument."

In Pakistan, transgender persons are often ostracized by mainstream society. Many live in secluded communities and are forced into sex work, begging or dancing to make ends meet, and find themselves vulnerable to attacks.

"We have only the option to sing and dance, and we have been attacked across the country. In the last seven years, nearly 100 transgender people were killed in Khyber Pakhtunkhwa province alone," said activist Rana. "We demand the fair census of transgender people in Pakistan and urge authorities to not link our rights issue with religion."

Edited by: Sou-Jie van Brunnersum