“Transgender Persons (Protection of Rights) Act, 2018” And Right to Change Gender Subject to Self-perception

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This Article Contains a Critical Legal Analysis of the bill initiated in 2017 by the Senator of PPP Farhat Ullah Babar  and supported by PTI’s MNA Shireen Mazari

In Pakistan, several initiatives have been undertaken to guarantee that the transgender minority has access to fundamental rights. Transgender persons have faced prejudice on the subcontinent since the colonial era, making the right to equality the most crucial right in this context. However, Pakistan’s approach to resolving this issue is incorrect.

What is the transgender Act of Pakistan?

Pakistani residents now have the freedom to identify as men, women, or a combination of both two genders, to have that identification recorded on all government papers such as Id cards, passports, driving licenses, and academic certificates.

Citizens have the right to freely express their gender identity, which is defined as a person’s deepest and personal sense of identity as man, woman, a mixture of both, or none; which may or not correspond to the gender assigned at birth.

This Article includes a detailed Analysis of how this Act is Different from its Counterparts in different jurisdictions, how loopholes can arise from this Act due to lack of interpretation & How this act can be amended so that its sole purpose is for the welfare of rights of the transgender community rather than Providing a Legal cover to the imposters who want to benefit from this piece of Legislation.

1. What is the difference between a Transgender and a Transsexual?

A person not comfortable with his/her birth gender and feels trapped in the wrong gender or body and likes dressing in contrast to gender at birth and often wish they were born with the opposite gender is called transgender.

They may or may not want to opt for surgery and some may even be comfortable with their gender but only wish to wear clothes and hair and be addressed as the opposite gender and may want to remain in their original genitals at birth.

Whereas a transsexual is a person who starts to suffer gender “dysphoria” a mental condition developed due to long-standing internal conflict since childhood as a result of which opts and successfully changes sexual identity through surgery, name, and identity.

A male changing into a woman is called a transwoman and a female changing into a male is called a transman.

2. Repugnant to the Constitution of the Islamic Republic of Pakistan,1973.

The Transgender persons (Protection of Rights) Act,2018 is not in compliance with the articles of our constitution relating to fundamental rights as well as the injunction of Islam as laid down in the preamble of our constitution.

Furthermore, it is not in compliance with international standards as laid down by the ICJ or practices being carried out in developed jurisdictions.

Some legal loopholes would arise out of this act which needs to be avoided by comparative analysis of similar laws being soundly implemented in different jurisdictions.

Purpose of this Enactment

Pakistan’s parliament has passed a law guaranteeing basic rights for transgender citizens and outlawing discrimination by both employers and private business owners.

The law accords citizens the right to self-identify as male, female, or a blend of both genders, and to have that identity registered on all official documents, including National Identification Cards, passports, driver’s licenses, and education certificates.

3. How provisions of this act provide Blanket cover to the LGBTQ Community (Legislative Defect)

 The law guarantees citizens the right to express their gender as they wish, and to a gender identity that is defined as “a person’s innermost and individual sense of self as male, female or a blend of both, or neither; that can correspond or not to the sex assigned at birth”.

This law has been promulgated on the misrepresented interpretation of the international law as presented in the ICJ Briefing Paper as well. Additionally, it undermines the rights of the indigenous gender-variant people of Pakistan as well as the legal and social framework of the country.

The law is more aligned with the global movement of (LGBT) communities and contains serious definitional and conceptual flaws. The parliamentarians should work out a scheme for mainstreaming gender-variant persons on the basis of the Constitution of Pakistan, guidelines of the Supreme Court of Pakistan, and the recognized principles of international law.

This would require a thorough review of the current law with a changed approach and reference point. Despite the significance of this Act, there has not been much debate on it prior to the Briefing Paper. Jeffrey A.

Redding has discussed the Act mainly in the context of the global debate on gender issues motivated by the LGBT movement and has particularly focused on some of the ‘numerous questions regarding the implementation of the Act as well as its impact on the current legal framework of Pakistan.

4. How to Diagnose & Correct Legal Defects of this legislation?

  1. To analyze the framework as well as the provisions of the Transgender (protection of rights) Act, 2018.
  2. To interpret different articles of the constitution regarding fundamental rights and compare whether this act is in compliance with them.
  3. To do a comparative analysis of similar laws in different jurisdictions and propose amendments in the framework of this Act.
  4. To propose solutions as to how legal loopholes arising out of this Act can be avoided. (inheritance/Succession issues as well as same-sex marriages).

5. Questions that need to be debated upon within the parliament

  1. Whether this Transgender (Protection of Rights) Act 2018, is in compliance with international law?
  2. Are provisions of this Act Ultra Vires with The Constitution of Pakistan,1973?
  3. What Legal Loopholes might arise out of the provisions of this Act which may affect our legal system negatively?
  4. Is the framework of this activity designed for the welfare of the indigenous gender-variant people of Pakistan or to provide a legal cover to the LGBT community?

6. The framework (chapters) of this act simplified

 The act is divided into seven chapters, each of which is explained below:

  • Chapter number One focuses on definitions and includes important terms like a transgender person, gender identification, and gender expression.

 

  • Chapter Two explains identification, and recognition and acknowledges transgender people’s right to have their self-perceived gender enrolled in official records.

 

  • Chapter Three is including prohibitions on particular acts, such as the prohibition on discriminatory practices against transgenders and the prohibition on abuse of transgenders.

 

  • The fourth chapter implements obligations on the state to establish safeguard centers and secured houses for transgenders and construct completely separate jails and cells for transgenders and construct special vocational education programs to facilitate and aid transgender people’s income living maintenance.

 

  • The fifth chapter talks about the security for the rights of transgenders including the right of inheritance,  education, to live freely, work, property, and use of public areas. A general provision is also explained in this chapter which is declaring that all guaranteed rights by Pakistan’s Constitution will be accessible to transgender people. A new criminal offense is also introduced in the fifth chapter which is hiring, forcing, and using any transgender for begging.

 

  • The sixth chapter explains in addition to the general criminal and civil law remedies that transgenders who were abused or their rights were violated may file complaints to the ombudsperson of federal.

 

  • The seventh Chapter includes some rules such as enabling the government for making regulations to execute the objective of the legislation and other provision is explaining the law would take over any law now in effect.

7. Comparison of this act with India’s transgender protection of rights act

For a better understanding of the same law in two different jurisdictions, let us first differentiate the difference between a transgender and a transsexual person. Because Unfortunately Pakistan being an Islamic republic and a Muslim majority country has passed this act more inclined towards favor of transsexuals to provide them with a legal cover.

On the other hand, India has devised a mechanism (series of tests) that a person must undergo through in order to change their gender.

8. India (How gender can be changed through screening)

  • Certification for an identity for a transgender
  • Someone who is identified as transgender under the Bill is entitled to self-perceived gender identification

Procedure (In India)

A request for such a Certification should be submitted to the District Judge (DM). A District Screen Committee will be referred to such an application by the DM.

A Chief Medical Officer, a District Social Welfare Officer, a psychologist or psychiatrist, a spokesperson for transgenders, and government officers will make up District Screening Committee. Based on Committee’s proposal, the DM will issue transgenders Certificates of Identity.

On the basis of this Certificate, a transgender person’s gender will be reflected in all official documents.

If a transgender person’s gender changes, he or she can apply for an updated certificate using the same procedure as to obtain a Certificate of Identification.

9. Pakistan (How gender can be changed subject to self-perception identity)

In numerous ways, the Pakistani Act is unusual and forward-thinking. One is that it gives the term “transgender” a broad meaning that includes intersex people. The Act provides for self-identification, allowing transgender person to choose their own gender identity.

This is in contrast to regulations in other nations, such as India’s Bill on Transgender Persons, which requires transgender people to have their self-perceived gender approved by a committee consisting of doctors and a psychologist.

The Danish Supreme Court has acknowledged transgender people’s self-identification, and the rule mandating a six-month period of thought before a gender change could be granted was repealed.

Only six European nations accept this kind of self-determination in transgender recognition, with the Portuguese becoming the sixth in 2018. This self-determination paradigm is thought to become the most liberating for transgender people

since it eliminates the need for a medical diagnosis in order to enjoy numerous advantages.

Many transgender activists argue that requiring a diagnosis is repressive and that it just adds to the difficulties faced by transgender people.

Critical Analysis of New “Transgender Persons (Protection of Rights) Act,2018” And Right to Change Gender Subject to Self-perception

 

10. Amendments made to the Indian Transgender act (To liberalize it)

The Transgenders Protection of Rights Act, which was signed into law on January 10th  and aimed at guaranteeing transgender people’s rights and mainstreaming, will be enforced as the Centre has notified the rules.

The laws provide that an affidavit confirming the applicant’s gender identity as a self-perceived identity will be used to get an identification certificate from the district magistrate. There’ll be no medical check to confirm identification, according to the guidelines.

The laws state that transgender people who have previously documented their gender identity shift as male, female, or transgender before the law’s adoption will not be asked to apply for a certification of identification under these rules.

Subject to its accuracy, the district magistrate shall consider applications based on the affidavit provided proclaiming gender identification of any individual, with no medical exam, it states.

Within 1 month of the local administration obtaining the request, the person will get an identification card, that will be used to change the applicant’s gender on all other official papers.

If transgenders want a new identity certificate as a result of medical intervention to change sex as a male or female, Applicants must submit an application to the district magistrate with a certification from the appropriate hospital’s medical officer or medical officer

11. Fundamental Rights in Constitution of Pakistan,1973.

Article 7-29 defines the simple fundamental rights as annunciated to us by using the constitution of Pakistan 1973. moreover, Article 25 speaks of “equality of citizens” which obviously includes all genders however, the time period transgender has nowhere been described in our constitution subsequent to the promulgation of this act.

According to Pakistan’s definition, “is where a great deal of the Pakistani 2018/Act’s gender norm innovation is determined. “certainly, this word means that (for felony functions), the statements or the subsequent chapter of the Act expands on the reality that a man or woman’s selections regarding their gender are authoritative.

In different phrases, this phase of the Act seems to state that gender is described as “self-perceived gender” underneath the law.

The approach taken by Courts of United States in cases involving gender and ethnic inequality under the protection of equality Clause which was added in the constitution of united states of America in a fourteenth amendment and this clause aids this concept.

Pakistan must adopt this approach to guarantee that the transgender minority achieves their full rights as soon as possible by establishing measures that eradicate societal prejudice against them and in terms of social and economic and political standing they should be on the level with the rest of the country’s citizens. Rather Than Leaving loopholes in the legislation from which liberals can benefit.

12. Loopholes in the definition clause of this act

What Does Article 25 (Right to Equality) State?

The Constitution of Pakistan in its article 25 gives equal rights to the citizens. It declares that everyone is equal under the law and prohibits discrimination based only on gender, the latter since Section 25 (3) allows for positive discrimination in favor of females and kids.

Positive discrimination is possible because kids and females are seen as the weakest members of society, and the state adopts a softer approach to them. Given the focus on gender and sex in this piece, Transgenders have been treated badly since the British conquerors came to the subcontinent, therefore it’s a pity they don’t have equal safety under the Constitutional law.

The humiliation against transgender that dated back to a colonial rule created an atmosphere that resulted in the civilian murders of transgenders when Pakistan was founded.

The approach taken by Courts of United States in cases involving gender and ethnic inequality under the protection of Equality Clause which was added in the constitution of united states of America in the fourteenth amendment and this clause aids this concept.

The U.S Supreme court has pursued a policy of applying a high level of scrutiny for discrimination on the bases of the race while dealing with cases. In this distinction, the differences between the two groups of people were handled and identified.

so the supreme court was able for resolving their matters by having the historic experience of both groups. As a result, the Supreme Court was able to resolve their issues while keeping in mind each group’s historical experience.

The United States is used as an example to show how the basic equality model may be utilized to appropriately interpret and apply the inherent right to equality, so Pakistan must adopt this approach to guarantee that the transgender minority achieves their full rights as soon as possible by establishing measures that eradicate societal prejudice against them and in terms of social and economic and political standing they should be on the level with the rest of the country’s citizens.

Case Law (Same-Sex Marriage):

W.P. No.1421 of 2020 (Syed Amjad Hussain Shah v. Ali Akash alias Asima Bibi and five others).https://sys.lhc.gov.pk/appjudgments/2020LHC1825.pdf (Link)

13. Conclusion

In both form and content, the language in legal papers is used precisely and explicitly. However, the terminology utilized in this Act is hazy and confusing. Transgender is a wide word with various subcategories, including Trans men, Trans women, intersex Trans, and so on.

Being Transgender has little to do with medical issues, but rather with a person’s mindset, therefore correct definitions are essential to pinpoint the underlying problem. It is advised that some aspects of the Act be thoroughly reviewed again.

Before reaching a consensus on the regulatory system and Legal instrument required to abolish the aforementioned evil, it is advised that more diverse parts of society be consulted.

The Government should examine some regulations conferred with the Islamic Ideology Council and professionals in health, neurology, philosophy, social science, and law to assess and address the community problem.

“Transgender” people, not “intersex” people, suffer from “Gender Dysphoria,” a mental disorder in which they are biologically male or female, but appear to be the opposite. This act makes no attempt to examine the problems on phycological moral, scientific, religious, logical or, instead enacts legislation to safeguard and perpetuate the mental state.

That of itself is hasty. As a result, the conflict between their actual sex and gender identification problems should be resolved, classified, and regulations and enactment of laws. The statute does not include a method for transgender people under the age of 18 to be recognized.

The statute does not make it illegal to undertake unneeded medical operations on persons who have ambiguous sexual features. This law has not restricted castration which is harmful to oneself and Un-Islamic. (Quran 2:195, PPC 325, 332).

In this newly created state, transgender and intersex people had been living without an identity for 70 years. LGBTQ rights movements in the West had a tremendous impact on transgender individuals in our country, and groups fighting to empower them requested laws to protect their fundamental rights.

Because this measure does not address the concerns of Pakistan’s society, Western concepts were observed when crafting it. The religious viewpoint is largely ignored in the bill, as well as in the broader context of transgender rights. This kind of ‘ideal’ of liberty is incompatible with Islam’s core values.

The socio-cultural worldview of civilizations is based on Islamic conceptions of the divine contained in the Quran and Sunnah.

Because of the precedent created by this statute, other populations, such as homosexuals, have been able to achieve more rigorous acceptance.

The Supreme Court of Pakistan and Parliament focused primarily on obtaining equality, despite the fact that substantive equality should have been the objective. As long as transgender persons confront political, economic, and social discrimination state cannot claim meritocracy.

Transgender person law stops citizens from discriminating against transgenders, but it makes no mention of beneficial efforts that the state may implement, such as transgender quotas.

Transgenders were recently allowed for joining the Sindh police force as an officer and it’s a good move. Transgenders should get autonomous representation in the legislature because they are considered the third human gender. They are permitted to run for office under the Act, but winning a general seat is extremely difficult. This Act should be amended to handle these issues appropriately.

Furthermore, the federal government must establish and fund an acceptable plan for implementing this Act, and the provinces must adopt their own versions of the Act. It’s important to progressive reform the legal position of transgender individuals in Pakistan since it respects any individual’s autonomy, agency, and freedom to select their gender identity and gender expression in accordance with international criteria.

Transgender persons have the right under this clause to amend and reissue all of their official papers to reflect their own defined gender, making the law the most comprehensive in the world.

The law also forbids discrimination against transgender persons and requires the government to take steps to educate public employees about the rights of transgenders to inheritance, education, health, vote, and other basic rights and the capacity to run for public office, among other things.

When legislative provisions are implemented in their essence, they have the potential for ensuring that transgenders can live with dignity as specified in the constitution of Pakistan but for years they are the deprived class of society.

The need for the law to be realized in a very manner that respects the rights of transgenders however, it’s necessary that this process doesn’t end with the enactment of the law.

Challenges for the implementation still remain and require a proactive and inclusive approach on a part of the authorities that take into consideration the context. Pakistan should review the legal framework to make sure that other laws including provisions of the PPC don’t violate the rights of transgenders. as an example,

it’s particularly concerning that section 375 of the PPC continues to define rape in terms of gender – as against the law that only a person can commit against a lady – thus, as an example

BIBLIOGRAPHY

Resources:

Statutes.

Constitution of Islamic Republic of Pakistan,1973.

Transgender Persons (Protection of Rights) Act 2018 (Pakistan)

Transgender Persons (Protection of Rights) Act 2019 (India)

Author’s Note:

The authors of this article M.Hamza Sohail & Huzaifa Kiyani are Practising Advocates.

The Purpose of this Article is a Legal Obligation to Interpret the Law in Light of its Provisions and not Emotions, To Separate the Legal Truth from Societal Assumptions.

Special Thanks;

Mr.Sohail Akbar Khan (Father)

Mr. Mujeeb Ur Rehman Kiani A.S.C (Mentor)

Syed Abdul Rehman Shah (Friend)