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Wednesday, Aug 21, 2019

Pointers from Pakistan’s transgender rights battle

Activists spent a year negotiating with hardliners and lawmakers to pass a progressive transgender rights bill, albeit with some lacunae.

india Updated: Jul 29, 2019 01:34 IST
Dhrubo Jyoti
Dhrubo Jyoti
New Delhi
Members of the Pakistani transgender community during a parade to demand for the implementation of transgenders rights law in Lahore on December 29, 2018. The community forged an unlikely national coalition, creating a law that incorporates wide-ranging safeguards in inheritance, workplace and education, and detailing the protection of rights.
Members of the Pakistani transgender community during a parade to demand for the implementation of transgenders rights law in Lahore on December 29, 2018. The community forged an unlikely national coalition, creating a law that incorporates wide-ranging safeguards in inheritance, workplace and education, and detailing the protection of rights.(AFP Photo)
         

Night was falling on Peshawar on May 22, 2016 when her friends wheeled Alisha into the Lady Reading Hospital. The 25-year-old transgender entertainer and activist had been shot by her partner just hours ago.

As Alisha lay slumped on a stretcher in the hospital, six bullets lodged inside her, the hospital staff debated whether to admit her in the male or female ward. Her friend, Farzana Jan, was asked whether Alisha was HIV positive, whether she danced at parties, how much she charged, even as people jeered while Farzana ran across the hospital corridor trying to arrange a bed for the victim.

After surgery the next morning, the hospital refused to admit Alisha in the intensive care unit, claiming that there were no beds. Alisha succumbed to the gunshot wounds two days later – the fifth such murder of a transperson in the Khyber Pakhtunkhwa province that year.

“I felt like we were not humans, we had no law, no measure to lodge a protest,” Jan told local reporters at the time.

Seven months later, in January 2017, another activist Jannat Ali was at a conference in Islamabad when she heard rumours that a bill for transgender rights had been introduced in the upper house of Pakistan’s parliament, the Senate.

To her surprise, she found that the bill, introduced by Pakistan People’s Party (PPP) senator Babar Awan, was a virtual lift from India’s Transgender Persons (Protection of Rights) bill 2016, an earlier version of the bill that was recently introduced in the Lok Sabha. The Transgender Persons (Protection of Rights) bill, 2019 is expected to be tabled for discussion in the Lower House this week.

“It was a copy-paste job,” said Saleha Rauf, an activist and writer from Islamabad.

According to activists, Pakistan’s Transgender Persons (Protection of Rights) Act, 201 8, reproduced whole sections of the Indian bill in circulation at the time. It also included three contentious points: The definition of transgender that centered on “not wholly male or wholly female”, the stipulation of a medical test to decide who a transgender person is and vague anti-discrimination provisions.

“We were really angry, we said there should be medical test for everyone, even for Babar Awan to prove that he is really male,” said Ali.

The community rallied as the Senate sent the bill to Pakistan’s National Commission for Human Rights and the federal ombudsman’s office, Wafaqi Mohtasib, for consultation. “Most of the community had been left out of the process and very few knew the law, or what to do,” explained Sabahat Rizvi, a lawyer.

Despite the challenges, the community forged an unlikely national coalition, which helped create a law incorporates wide-ranging safeguards in inheritance, workplace and education, and detailing the protection of rights, prohibition of discrimination and penalties imposed. “This is one of the most progressive legislation in the world. This is the legal base on which work can happen in the future,” said Lahore-based anthropologist Mehlab Jameel.

LEGAL JOURNEY

The transgender community in Pakistan is a diverse group with deep divisions in religious and social beliefs. The most visible is the Khawaja Sira, loosely akin to the Hijra community in India, many of whom are organised in an elaborate guru-chela (teacher-student) kinship system.

In 2009, after some transgender women performing at a wedding ceremony were arrested and abused, the country’s supreme court started hearing a case about the community’s fundamental rights.

Over the following two years, the court issued a raft of directives on the legal and social status of the community. In 2013, a year before the Indian Supreme Court’s National Legal Services Authority (Nalsa) vs Union of India verdict that recognised a legal identity of transgender communities in India, the Pakistani top court ordered the federal and provincial governments to ensure rights to transgender people in education, employment and inheritance, and granted them the right to vote and contest elections.

Through the scorching summer and the holy month of Ramzan, a group of feminist lawyers, activists and community leaders brought together an unlikely coalition. “We went to gurus, to red-light areas, bus stops, train stations and parks…wherever transgender people were found, we went. Many didn’t understand English so we spoke in Urdu, Punjabi and Farsi,” said Rizvi.

Once the inputs were collated in Islamabad, the group faced a different quandary. The capital city is heavily fortified and most government officials, including the senators in charge of steering the draft, had never met transpersons before, and this created uncomfortable roadblocks.

Jameel remembered getting angry at every checkpoint and even shouting at officials during meetings.

“Always, the police would taunt us, ‘Oh you also nowadays come to government office? You people also want rights?’ Many of the activists were working class and they would be harassed daily,” she said.

The activists were cautious in a country where conversations around gender and sexuality are still taboo, and rarely gave interviews or spoke to the media. “India’s example was most stark, the more the transgender bill became a part of the public discourse, the more difficult it became for the bill to pass,” Jameel said, talking about the protests against the transgender rights bill in India since 2016, and asserting that any public protests akin to those across India would have killed the legislation in Pakistan.

“We feared if there was a public controversy, the bill would be delayed by another 50 years.”

HURDLES

Who a transgender person is and what they should look like are questions that unite governments across borders.

As negotiations between the government and activists on the bill began in Pakistan, a sticking point emerged to be the activists’ demand to declare their own gender and without a medical test.

This was one of the big demands of the trans communities in India, too, which opposed the provision in earlier versions of the bill that mandated a District Screening Committee, which would issue identity cards to transgender persons. While the 2019 bill does not have this provision any longer, it stipulates that a trans person can receive identity documents in the binary genders of man and woman only after having undergone surgery. This provision contradicts the Nalsa verdict that mandated self identification as the basis of gender identity.

What made it tough for activists in Pakistan was social taboos. “We faced a big backlash. People said we were promoting homosexuality, a taboo in Pakistan,” said Sumair Ali Khan, an activist.

Jameel explained they knew the bill established a legal precedent. The society wanted to examine us, “and we steered them away from our bodies to our rights”, said Jameel.

In the middle of the negotiations, a senator said without a test, “imposters” would mushroom. “We said, you haven’t given us reserved seats, we are unemployed, get shot, thrown out of hospitals. Why would someone call themselves trans?” he added.

A clinching argument for the politicians was the prohibitive costs of setting up screening committees in every district. “They [the activists] produced a huge body of authentic and irrefutable literature and research on the subject,” added former senator Farhatullah Babar, who steered the bill through the year-long process, referring to oral histories, testimonies, academic research and references to Islamic texts that activists claimed recognised more than two genders.

An intractable challenge was a number of far-right groups and Islamist parties who were fast gaining strength. Activists were aware of their power, especially after their opposition to an anti-domestic violence bill in 2015 scuttled the legislation even after it passed in the Punjab provincial assembly.

“To discourage a bill they don’t like, or they want to use to maintain control over women, they will call it ‘gunah’ (sin) under Islam,” explained Uzma Yaqoob, director of Forum for Dignity Initiatives, an organisation working for trans and sex workers rights.

To beat the Jamiat Ulema-e Islam, a far-right group that was the country’s fifth-largest party, the activists argued the Sharia law had enshrined gender equality and recognised intersex bodies.

When the Council of Islamic Theology insisted on medical tests, activists employed a similar tactic, arguing that the tenets of “sharam”, “haya” and “parda” were central to Islam. By forcing Khawaja Sira people to disrobe in public, the government would force them to go against Islam. The Council was mollified.

There were some bitter compromises, such as the criminalisation of begging, a traditional community occupation, and giving up some rights on inheritance. Under Islamic laws, male and female members share property in a 2:1 ratio. But what would a transgender person get, and would they be classified male or female? “They wanted a test, we didn’t. In the end, we had to compromise, and say there will be a test only in case of a dispute,” said Sumair Ali.

As with the current bill in India’s Parliament, the Pakistan bill also remained silent on civil rights like marriage. “The government thinks they [transgender people] are Sufis, there is no discussion of sexual rights. They cannot adopt a child,” Ali said. There are still no reservations in jobs, education and politics. In society, transgender men continue to find themselves marginalised, though the bill has shown them some hope.

“In Pakistan, the fear attached with transmen bodies stops us from fighting for our rights. But the bill gives us the right to self-identify, and mentions transmen, so we are hopeful,” said Mani AQ, an activist.

IMPACT

Pakistan’s parliament passed the transgender rights bill in May 2018. The rules to implement the bill are being drafted currently, but the legislation has already prompted the National Database and Registration Authority to allow people to choose their gender in IDs. “The anti-discrimination clause and the fact that you can take complaints to the ombudsman’s office has been quite helpful,” said Sarah Sohail, a lawyer and activist.

The other big lacunae is Section 377, the same colonial statute that was read down in India last September. “In Pakistan’s conservative Islamic society, homosexuality is largely shunned from mainstream society, ignored and perceived as it never even exists,” said a gay rights activist on the condition of anonymity. The law is used routinely for extortion and blackmail.

Things are moving slowly, but Sohail points out that the bill has already helped secure a big victory. This week, a local court sentenced Alisha’s shooter to death in a case that activists said was the first time capital punishment was awarded for the murder of a transperson. “The bill really helped,” Sohail added.

First Published: Jul 29, 2019 00:04 IST

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