The Transgender Community, Legal Framework, and Implementation Challenges

This write up was provided by Blue Veins

The rights of transgender people have been neglected long in Pakistan. It is only now, through the efforts of Pakistani transgender community and support civil society, that the issues concerning the transgender community in Pakistan have gained attention of the policymakers and duty bearers, which has resulted in some improvement in the policies and legal framework around transgender rights.

There have been multiple efforts in Pakistan to guarantee the provision of fundamental rights to the transgender community. To the most extent, both the Supreme Court and the Parliament have focused on granting formal equality while the focus should have been on substantive equality. In 2009, the Supreme Court of Pakistan established the foundation for the rights of transgender persons in Pakistan and passed a landmark judgment which explicitly declared that the transgender persons fell into the category of the third gender and were ‘equal’ citizens of Pakistan. Hence, they were entitled to enjoy all the fundamental rights.

In 2018 first landmark legislation was enacted by Parliament of Pakistan in form of ‘The Transgender Persons (Protection of Rights) Act, 2018’.  The Law seeks to recognise the identity of transgender persons and prohibit discrimination in, inter alia, the fields of education, employment, healthcare, holding or disposing of property, holding public or private office and access to and use of public services and benefits and guarantee to fundamental rights.

 The most important and progressive provision of the law is section 3 of the Act, which gives the transgender persons the right to get themselves registered according to their self-perceived gender identity with all government departments including NADRA.

In Chapter 5, the Act lays down the provisionsfor on protection of several socio-economic rights. The Act also prohibits the discrimination against transgender persons at educational establishments, in employment or occupational opportunities, healthcare services, holding oublic offices,  access to public facilities and benefits and binds the government to take effective steps to secure full and effective participation and inclusion of transgender persons in the society.

The Act, to the most extent, is not penal in nature. There is only one section therein which sets out a punishment, and it is concerned with the individuals who employ or compel transgender persons to beg. It provides no penalties, remedies in case of a violation of the law by duty bearers.

The major problem is that it is a federal law, which is applicable to a very small part of the country governed by the federal government. Many issues faced by transgender community are provincial subjects for example health, education, prisons, family issues, and inheritance. Hence, this law does not make much difference. There is a serious need to legislate at the provincial level to make a meaningful change to the lives of transgender persons.

The law does not provide any enforcement mechanism. Enforcemenet bodies defined under section 18 of the law are the Federal Ombudsman, National Commission on the Status of Women (NCSW) and National Commission of Human Rights (NCHR), to whom complaint can be made if any of the rights guaranteed under the law are denied to the community. However, there have been no corresponding amendments in the legislation of the NCSW or the NCHR to expressly include transgender people in their mandate or to give them any additional powers and resources to enforce the rights provided in the Transgender Persons (Protection of Rights) Act 2018. Most of these enforcement  bodies’ mandate is limited to federal institutions. They have no jurisdiction over provincial authorities.

Another roadbloc in the implementation is the lack of rules and regulations, which are necessary for the implementation of a law. It is disappointing that two years have passed since the enactment of the law, but rules are yet to be framed. Last but not the least, there is a need to allocate adequate resources for the implementation of the law. Without financial resources, nobody can ensure protection of the rights of any marginalized group of the society.

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