International Federation for Human Rights (FIDH) - Could you tell us what’s happening right now in Pakistan regarding the rights of transgender persons?
Farhatullah Babar - The right-wing moral brigade in Pakistan has stepped up their campaign against the transgender community in the name of religion and morality. Surprisingly the latest spurt in violence against transgender persons has come four years after Pakistan passed a highly progressive and landmark legislation in 2018 [1]. The legislation gave transgender persons the universally recognised right of self perceived identity without forcing upon them non consensual medical examination. It also mainstreamed the ostracised community and allowed them basic rights like education, health, employment and voting in elections that were not available to them before.
FIDH - In what context was this law adopted?
Farhatullah Babar - The 2018 legislation was the result of a massive wave of violence against transgender persons in the country and a ruling by the country’s Supreme Court in 2012 to safeguard their basic rights. The law was passed after a thorough debate and discussion by both Houses of Parliament, namely the Senate and National Assembly, and finally acceded to by the country’s President. But three years after the law was passed, in August 2021, the neighboring country of Afghanistan was overrun by hard-line militant Taliban after signing a peace agreement with the United States of America (US) in Doha a year before. The US-Taliban agreement bound the religious hardliners not to attack the withdrawing US forces but made no commitment to uphold human rights of women, minorities and the marginalized.
FIDH - What does this law provide for?
Farhatullah Babar - The Transgender Persons (Protection of Rights) Act, 2018 achieved four commendable objectives.
1. It recognized the right of self perceived identity of a transgender person by defining gender identity as the "innermost and individual sense of self as male, female or a blend of both or neither that can correspond or not to the sex assigned at birth", thus basing it entirely on one’s choice.
2. It gave transgender persons the right to "apply for the modification of their existing identity documents to make them consistent with their chosen gender identity" and criminalised discrimination against them.
3. It placed an obligation on the government to ensure full participation of transgender persons in society and required it to establish "protection centres" and "safe houses" for the purpose. In short it allowed all fundamental constitutional rights to be available to be "available unequivocally for every transgender person".
4. The new legislation also laid down procedure for applying for a national identity card by a transgender person on the basis of self perceived identity without intrusive non-consensual medical examination for the purpose.
The law was widely hailed by the civil society and human rights activists as a huge step forward as it unleashed a process of reversing colonial-era law over 150 years old which criminalised the community. The enactment [of the new law] had a profound impact on the public discourse surrounding the rights of transgender people. One immediate impact was that 13 transgender candidates ran for office in the 2018 general elections.
FIDH - What influence has the Taliban takeover in Afghanistan has had?
Farhatullah Babar - The Taliban’s military conquest of Afghanistan in 2021 emboldened the militants and far right in Pakistan, as well as in the region. As if from nowhere the Pakistani Taliban, whose backbone the military had claimed to have broken, sprang up in different parts of Khyber Pakhtunkhwa Province, bordering Afghanistan. Reports, denied by the government, claim that the Pakistani Taliban’s resurgence is tacitly backed by elements within the state machinery.
Almost simultaneously the right wing and religious elements started a campaign against the Transgender Act claiming that it promoted immorality and was against teachings of Islam. A petition was also filed in the Shariat Court urging the Court to strike down the law as being against the teachings of Islam. No sooner the right wing element unleashed a massive propaganda against the 2018 Transgender Act as being un-Islamic, public sentiment was aroused against the community. Prayer leaders in mosques during Friday sermons declared it immoral and un-Islamic and asked people to rise against it.
Transgender persons became the target of increased hatred and violence and came under murderous attacks particularly in Khyber Pakhtunkhwa Province. While hardly any attacker has been arrested the crimes against them continue with impunity.
FIDH - What is civil society is doing to defend this law and the rights of transgender persons ?
Farhatullah Babar -In September 2022, the Human Rights Commission of Pakistan (HRCP), a member organisation of FIDH, published a fact-finding report on the attacks on transgender persons and urged the government to end the climate of crimes against transgender persons. HRCP Chairperson Hina Jillani bemoaned: "As always, certain people used Islam to sway arguments, incorrectly. […] In any civilised society those who attacked the transgender persons would be accused of genocide against a highly marginalized community."
I also approached the Shariat Court requesting to be made a respondent party and defend the Act. The Court has since allowed the request. The petitioners challenging the Act have almost completed their arguments. The case will come up for hearing again on 24 November 2022 before the Shariat Court in the capital Islamabad when it will be the turn of respondents to speak in defence of the 2018 Act.
Under the Constitution, appeal against a verdict of the Shariat Court lies before the Shariat Appellate Bench of the Supreme Court of Pakistan. Any aggrieved party against the decision of Shariat Court can appeal it. So whatever the verdict of the Shariat Court it is unlikely to be final and even more unlikely to put the issue at rest.