The Federal Shariat Court (FSC) has been requested to ban discussion on the Transgender Act over social media as hatred against the transgender community continues to put their lives in danger.
A two-member bench, headed by Acting FSC Chief Justice Syed Muhammad Anwar, took up the case filed against the Transgender Persons (Protection of Rights) Act, 2018. The acting chief justice said that the actual issue here was about the rights of the transgender people.
The FSC allowed Senator Mushtaq Ahmad of the Jamaat-e-Islami (JI), former senator Farhatullah Babar of the Pakistan Peoples Party (PPP) and transgender rights activist Almas Bobby to become parties to the case.
Enacted in 2018, the Transgender Persons (Protection of Rights) Act, recognises the identity of the transgender people, prohibits discrimination against them, and confers upon them the right to self-perceived gender identity.
The law ensures issuance of certificate of identity to transgender persons, provides that no establishment shall discriminate against them in matters relating to employment, and provide for grievance redressal mechanism in each establishment.
The law also allows transgender person to register according to self-perceived gender identity with the National Database and Registration Authority (NADRA). However, some quarters objected to the law, saying that people can register themselves under any gender at will.
During Tuesday’s hearing, transgender persons requested the court to ban discussion on this topic on social media. The head of the transgender department of the Islamabad police told the court that hatred was being spread against the transgender community.
In Peshawar, three transgender people were killed due to the same argument, the court was informed. Hatred is being spread the on social media against the transgender community that put the lives of these people in danger, the court heard further.
The lawyer for the Human Rights Ministry told the court that the ministry’s responsibility was to implement the law, adding that it had no role in the legislation. The chief justice said that the main objective was to protect and give rights to the community.
The chief justice added that if someone closed his eyes, he would not become blind. Similarly, if someone called himself a transgender person, he would not actually become a transgender person.
Orya Maqbool Jan told the court that the National Assembly had approved the bill when it was taken up for voting.
He added that only three lawmakers had opposed the bill at that time and asked for sending the bill to the relevant committee for deliberations.
Activist Almas Bobby requested the court to make her a party to the case. Bobby pointed out that the Supreme Court had appointed her as the focal person on behalf of the transgender community.
Babar told the court that he was involved in the legislation process. He added that he wanted to apprise the court of the objectives of the bill and discussion in parliament. He also said that actually, there were three private bills, which were merged into one bill.
Imran Shafiq, the lawyer for Senator Ahmad and the JI, told the court that a new bill had been submitted in the Senate. The lawyer said that no one should be allowed to change his or her gender at will.
The lawyer for a non-governmental organisation (NGO) – a party to the case – said that various issues had been mixed up in this act. The lawyer said that it was a birth defect which could be cured through treatment, adding that the organisation had treated many people.
Transgender Bubbly Malik told the court that he had been labelled as an LGBT person – a reference to initialism that stands for lesbian, gay, bisexual, and transgender. In fact, Malik said, “the LGBT community and we transgenders” were totally different.
Malik requested the court to seek assistance from experts on the matter. On that the acting chief justice asked Malik to suggest names of any expert. Malik said there were many experts, including Farzana Bari and Fatima Ehsan.
However, objecting to the names, Jan emphasised the need for the opinion of a medical expert. He told the court that a sexologist could give an opinion only by observing, but the gender could not be determined without a doctor’s certificate.
Later, the court directed all the parties to submit their written submissions. The hearing was adjourned for an indefinite period.
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2018
Enacted on May 24, 2018, the Transgender Persons (Protection of Rights) Act, defined “transgender person” as a person who is (i) intersex (khusra) with mixture of male and female genital features or congenital ambiguities: or (ii) eunuch assigned male at birth, but undergoes genital excision or castration; or (iii) a transgender man, transgender woman, khawaja sira or any person whose gender identity or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth.
The law states that a transgender person shall have a right to be recognised as per his or her “self-perceived” gender identity and allows them to registered themselves as per the “self-perceived gender” identity with all government departments, including, NADRA.
It also states that a transgender person to whom the computerised national identity card (CNIC) has already been issued by NADRA shall be allowed to change the name and gender, according to his or her self-perceived identity on the CNIC, driving licence and passport.
The chapter on prohibition of certain acts states that no person shall discriminate against a transgender person at educational institutes; deny or give unfair treatment in relation to employment, trade or occupation, and deny healthcare facilities.
The use of public facilities of transportation and accommodation can’t be denied under the law. It also ensures right to movement, sale, purchase, rent or inherit moveable or immovable property; provides the opportunity to stand for of hold public or private office and prohibits harassment based on their sex, gender identity and gender expression.
The act makes it obligatory on the government to establish centres and safe houses to ensure rescue, protection and rehabilitation of transgender persons in addition to providing medical facilities, psychological care, counselling and adult education to them.
It also says that the government should establish separate prisons, jails and confinement cells for transgender persons, involved in any kind of offences; formulate special vocational training programmes and provide them incentives, loans and grants to start small businesses.
Under the law, the transgender persons have the right to inherit, education, employment, vote, hold public office, health, assembly, property; access to public places; and guarantee of fundamental rights.