Fight to Protect Pakistan’s Trans Rights Law

The 2018 legislation guarantees people the right to choose their gender

Fight to Protect Pakistan’s Trans Rights Law
Members of the transgender community pose for photos on the beach in Karachi, Pakistan / Betsy Joles / Getty Images

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When a talk in Pakistan by trans activist and popular social media influencer Dr. Mehrub Moiz Awan, at the upscale International School Lahore, was canceled recently, it was cause for vehement debate on the internet. However, just a month later, the entire nation became embroiled in a conversation about trans rights, and activists and community members mobilized over an existing law protecting transgender rights, prompting the Senate to introduce amendments to a landmark law.

Awan, a policy specialist by profession, who does not shy from speaking her mind on social media, had taken to Twitter in mid-August to say she was “censored for being trans” after she was removed as a speaker from a TEDx conference by the school authorities, as some parents didn’t “allow transgender people to speak to their kids.” Soon after, a leading fashion designer in Pakistan, Maria B., whose children study in the same school, lauded the decision on Instagram. She further said that Awan did not belong to the Khwaja Sira community and “is a man transitioning into a woman openly on social media.”

The Instagram story by the designer vanished after 24 hours, but it opened a can of worms in the country. In Pakistan, Khwaja Sira is an umbrella term for gender minorities, including transgender, nonbinary, intersex and gender-nonconforming people, who are often referred to as the “third gender.” Gender X or third gender encompasses everyone who doesn’t fall into the binary. The community deliberately wants its definition to be vague and non-intrusive to be inclusive.

As per the law, a transgender person has the right to be recognized as per one’s “self-perceived” gender identity, which should be in accordance with its provisions. Its definition includes intersex, a person “with a mixture of male and female genital features or congenital ambiguities; a eunuch, who is assigned male at birth, but underwent genital excision of castration; a transgender man, transgender woman, or any person whose gender identity or gender expression differed from the social norms and cultural expectations based on a sex they were assigned at the time of their birth.”

After the recent social media controversy, many, including media personalities, celebrities and politicians who don’t belong to the community, have been arguing that the Khwaja Sira includes only intersex people and that those who transition or choose a gender not assigned to them at birth, hence “transgender,” are not Khwaja Sira and should not be protected by law. They deem transness to be a “Western concept,” while those who are intersex are a “creation of God.”

“All these discussions about definitions had been had in the past while preparing the law and put to rest, but the attention and scrutiny towards Mehrub brought them back into public discourse,” a trans activist who wishes to remain anonymous told New Lines over a Zoom call.

That is why, since last month, trans activists in Pakistan are leading a campaign to protect the Transgender Persons (Protection of Rights) Act 2018 that guarantees transgender people the right to choose their gender on official documents, apart from granting fundamental rights and saving them from discrimination in schools, workplaces and public settings. Four years ago, when Pakistan enacted this law, it became one of the few nations to accord such rights to trans people and raised hopes for a community that had been surviving on the margins of society.

The seeds for the law were sown in 2009 when a group of Khwaja Sira dancers were arrested in Islamabad at a wedding party, as pointed out by Pakistani journalist Alizeh Kohari in her essay in Pipe Wrench magazine.

Some background: It is not unusual in South Asia for men to celebrate by firing guns into the air. This catches the eye of the police, who raid the place and make some arrests even though they are not fully legal. This tends to happen arbitrarily. When news of this incident reached the Khwaja Sira networks, hundreds gathered to demand their release. This made headlines and caught the eye of Muhammad Aslam Khaki, a professor of Islamic studies known for filing public interest litigation. Khaki filed a petition in the Supreme Court asking for protections for the community.

This led to a series of rulings by the Supreme Court for transgender people to obtain national identity cards as a “third sex” and be entitled to all fundamental rights guaranteed in the Constitution, including the right of inheritance.

A draft bill was prepared in 2017, which limited the definition of transgender to a person’s genitals and outlined a “screening committee” that consisted of “a judge, a doctor, a psychiatrist, a community representative and a bureaucrat” to decide whether a person is transgender or not. Activists at the time argueed it was “discriminatory,” as it transferred the right to determine a person’s gender to an external panel. They later worked with senators to rewrite the bill, which was later approved by the Council of Islamic Ideology, a constitutional body that advises the parliament on laws.

However, this past week, an amendment introduced in the Senate plans to do away with the efforts that went into the making of the landmark bill. The Intersex Persons (Protection of Rights) (Amendment) Bill 2022 argues that the primary objective of the act should have been to protect the rights of “intersex persons.” It says the term “transgender” was launched by “an American psychiatrist” in the 1960s and is primarily a “disordered mental state.” There are also fears that medical examinations would be reintroduced.

“Religious parties, such as Jamaat-e-Islami, which has only one seat in the Senate, had been arguing against it but it did not get any attention till now. All the other parties had supported the bill,” said the trans activist. Senator Mushtaq Ahmad Khan from Jamaat-e-Islami has filed a petition in the Federal Shariat Court regarding the law and argues the act legalizes homosexuality and allows for gay marriages. Yet trans activists have been making it clear they are not fighting for gay or queer rights in the country, and the law does not deal with marriages at all.

In South Asia, nonbinary people or the “third gender” — also referred to as hijra, a term now so abused that it is considered an insult — have been part of society for centuries. They made a living going door to door singing, dancing and conferring blessings on newlyweds and newborns, an age-old practice called “badhai.” However, as employment opportunities remain limited, many also resort to begging and sex work to make ends meet.

Disowned by their families, they become a part of their chosen families, where lineages of gurus (teachers) and chelas (disciples) become the basis of kinship. Generations of hijras have lived together, with gurus passing on hijra history, culture and rituals to newcomers and the chelas caring for them when they grow too old to work. They also have their own coded dialect called the Hijra Farsi.

The Khwaja Sira community dates to the time of the Mughal Empire, from the 16th to the 19th centuries, where they held advisory and leadership roles in the royal courts, as well as engaging in everyday professions. It was in the 19th century that the hijras became a target of British colonial authorities, who thought them an “outrage to morality.” They were labeled as a criminal tribe in 1871. This encouraged anti-hijra sentiments throughout the region, the legacies of which lingered on in the new nation-states.

The West may associate Pakistan with Islamist fundamentalism, but what it does not realize is that it has its roots in South Asian history and culture, which was more sex-positive and inclusive before Victorian morals took hold in society.

Though trans people were once relegated to the margins, headlines celebrating the country’s first trans model, doctor, lawyer and news anchor have become commonplace in Pakistan. This year, the Pakistani film “Joyland,” a love story between a young man and a transgender dancer, starring trans actor Alina Khan, won a jury prize and Queer Palm at the Cannes Film Festival. It is slated for release in local cinemas in November. But visibility has its side effects. There have been multiple reports of murders of transgender people in the past five months in different regions, especially Khyber Pakhtunkhwa province. The latest case occurred just last week, when a trans person was shot dead on her way to Peshawar. According to Trans Murder Monitoring, 81 people were killed in such incidents in Pakistan between 2008 and September 2021. Trans activists say the real number is much higher.

As the community fights for its landmark law, it continues to deal with the reality on ground, which includes regular attacks, blackmail, sexual harassment, rape and honor killings.

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