Nowadays, the Transgender Persons (Protection of Rights) Act, 2018 (hereinafter will be referred to as “the Act”) has become a very hot topic in social media, electronic media as well as on print media. On the one hand, religious fundamentalists think that the Act has opened the way for same-sex marriages and also created inheritance issues. On the other hand, the Liberals are of the view that the Act has provided and protected the rights of Transgender Persons who are a vulnerable segment of society and need special protection under Article 25(3) of the Constitution of Pakistan, 1973. The present political rivalry has added fuel to fire because media wings of PDM and PTI are playing religious cards to take undue advantage by saying the Act is un-Islamic. Both are putting the responsibility on one another. It is interesting to mention here that the Act was passed on 18th May 2018 when PML (N) was the incumbent government while the Transgender Persons (Protection of Rights) Rules, 2020, (hereinafter will be referred to as “the Rules”) were promulgated on 19th January 2021 during the government of PTI. Now it becomes crystal clear that both governments were equally responsible to implement the Act and the Rules. Each party is debarred from taking advantage of one another based on religion, however, there are some legal flaws in the legislation that may be cured accordingly. The legal issues have to be dealt with academically rather than emotionally.
The author is an apolitical person and a legal technocrat, in this article a comprehensive effort has been made to explain to the reader whether the Act and the Rules are anti-Islam or welfare legislation. In the first part of this article, the salient features of the Act and the Rules have been described with possible brevity, and thereafter in the second portion, the problems and flaws have been pointed out along with their possible solutions. The Act and the Rules were very much needed for the protection of transgender society in Pakistan but unfortunately, they were legislated by amateurs without observing the ground realities and practical research. The present legislative document looks like a copy-paste prototype of neighboring countries which has been made hurriedly under International pressure. That is why a piece of welfare legislation has become too controversial to implement. Even one of the famous Transgender representatives, Ms. Almas Boby, has denied to defend it.
The Act has 21 sections and 07 chapters. The first chapter deals with definitions and describes transgender as a person who is one of the followings (a) Intersex with a mixture of male and female genital features or congenital ambiguities, or (b) Eunuch assigned male at birth but has undergone excision or castration; or (c) a man, a woman, a Khawaja Sira, or any person whose gender identity and/or gender expression differs from social norms and cultural expectations based on the sex they were assigned at the time of their birth. The term “Gender Expression” refers to a person’s presentation of their gender identity, and/or the one that is perceived by others. And the term “Gender Identity” means a person’s innermost and individual sense of self as male, female, or a blend of both or neither; that corresponds or does not to the sex assigned at birth. So it means that not only the person having medical issues may declare themselves as Transgender but the Person having feelings in their mind about their gender may also recognize as transgender. Every Transgender person shall have a right to be recognized as a transgender by section 3 of the Act by his/her own choice. After reading the above sections, it makes abundantly clear that even a complete male and female can register themselves as transgender according to their choice without intervention of any medical board. NADRA or the passport office has no right to object to them changing their existing genders/names.
Chapter 5 of the Act is a very beneficial piece of legislation, it provides the right to education, right to health, right to inheritance, right to vote, and right to the profession to Transgender Persons. Furthermore, the Act also directs the government to provide and make separate jails, detention centers, schools, health centers, and vocational training institutes for the transgender community. All these reforms are very much needed for transgender persons.
The government further strengthened the law and made the Rules, 2020, thereunder. By these Rules, NADRA and Passport Office are bound to make a separate desks for Transgender Persons. These rules say that Transgender Persons shall have the right to change their name as well as gender in CNIC, License, Passport, and all educational certificates. Although in the main Legislation (that is the Act) only gender was permitted to change but in the Rules (Secondary Legislation) one advanced step is taken to change the name as well. The procedure is very simple, the person has to submit an affidavit with the content that he/she feels that he/she is transgender. His guru or two independent witnesses are sufficient to prove it. The word Guru is beyond the prime legislation and has been introduced in the secondary legislation. The NADRA, Passport office, and other departments are under obligation to write their gender as “X” in the column of Gender.