In May 2016, Alesha, a 23-year-old transgender woman and activist, was brought to Lady Reading Hospital in Peshawar after she was shot six times by a gang that specifically targeted members of the transgender community. She was not treated immediately. While Alesha bled, doctors and hospital staff debated over whether to place her in the male ward or the one for females. They taunted the other transgender people who had come with Alesha to the hospital. According to Trans Action, the group that Alesha campaigned for, doctors asked the volunteers for phone numbers, whether their breasts were natural, and whether they only danced or if they also performed sexual acts. Several hours after she first arrived, Alesha was placed on a bed outside a bathroom, the only place deemed suitable, where she eventually succumbed to her injuries.
In Alesha’s death one finds the essence of the many dangers and challenges faced by the transgender community: violence, harassment and negligence, sometimes by public officials who obligated to protect and help. The circumstances of her death were widely reported, including in foreign newspapers, and added pressure on the government to do more to ensure fundamental rights and protections for the transgender community.
On May 8, the parliament passed the Transgender Persons (Protection of Rights) Act 2018, the most progressive legislation regarding transgender rights to date in Pakistan. It currently awaits the signature of President Mamnoon Hussain, after which the bill will become law. Among other provisions, the bill guarantees the right to be officially recognised as per the person’s self-perceived gender identity on passports, Computerised National Identity Cards (CNICs), driver’s licenses and any other relevant laws; prohibits discrimination and unfair treatment in education, employment, healthcare services, public transportation, and in other public and private institutions. It also guarantees the right to inheritance as per the self-perceived gender identity.
The bill is the result of a collective effort by activists, lawyers, and policymakers that began over a year ago. In January 2017, Senator Babar Awan introduced a bill similar to a law enacted by the Indian parliament. Due to some problematic clauses and negative feedback from the transgender community, the Senate Functional Committee on Human Rights tasked the National Commission for Human Rights (NCHR) to redraft the bill.
The initial redraft process itself, however, also neglected to include input from the transgender community. Consultation meetings occurred in conference rooms that trans people have rarely been invited into, and discussions were held in English, a language most trans people cannot speak.
With help and guidance from Ashi Jan, a long-time transgender rights activist based in Lahore, a group of lawyers and activists brought the bill to the transgender community. “During the days of Ramadan last year, we worked with the transgender community on the streets of Lahore to translate the bill from English to Urdu and Punjabi, note concerns, and plan how to communicate those concerns to lawmakers,” recalls Mehlab Jameel, an activist who worked on the bill.
One major concern was that the original bill proposed to outlaw some traditional customary practices of the transgender community, in particular, the guru-chela system. “Many transgender people are disowned by their families and forced to leave their homes, and gurus provide financial support and protection. Eliminating the guru-chela relationship would put many in danger,” notes Sabahat Rizvi, a lawyer and activist, who also worked on the bill.
The most serious disagreement was over mandatory medical examinations by a committee – including a doctor, a judge, a psychiatrist, and others – to essentially decide a person’s gender. This state-ordained gender would then be used for official documents like passports, CNICs, and driver’s licenses. Instead of a person having the right to decide their own gender, the committee would decide something that affects one’s rights and access to public facilities.
The requirement of screening committees to decide a transgender person’s gender has long been a major point of contention. After the Supreme Court recognised the third gender in 2009, there was an attempt to enforce medical examinations and transgender activists like Neeli Rana and Ashi Jan took to the streets, proclaiming that they would not remove their salwars just because the state did not believe them.
In 2011, the National Database and Registration Authority (NADRA) held a press conference in Karachi to announce a new policy regarding the registration of transgender people. Bindiya Rana, a long-time activist and senior member of the community, burst through the doors, announcing that she had heard that the NADRA officials were faking their gender and that she had assembled a medical team who would come in and check their genitalia. The message was clear: transgender people should have the same right as everyone else to be officially registered as their self-identified gender without intrusive medical and psychiatric examinations.
Furthermore, transgender people have long been subject to harassment and even violence by authorities, including medical professionals, who do not have the necessary knowledge and training. “Some people made the argument that if you eliminated the medical examinations, then people would just claim to be transgender in order to receive benefits,” recalled Sabahat. “The issue isn’t that the system would get abused; the issue is that the medical examinations are humiliating.”
There are stories of doctors ridiculing, embarrassing, and mistreating transgender people. Harassment by doctors and hospital staff contributed in part to Alesha’s death on a makeshift bed next to a bathroom, hours after she first arrived with six gunshot wounds.
In February 2018, several activists involved with the bill had a meeting with the Council on Islamic Ideology. The main item on the agenda was the point of medical checks and screening committees for transgender people. Opposition from the Council had the potential to tank the legislation, and some lawmakers had already been attempting to convince the Council to kill it.
The activists made their arguments on the grounds of basic dignity, arguing that only specific people have to undergo humiliating medical examinations in order for the state to recognize them how they recognise themselves. Bubli Malik, a senior activist and transgender community leader, made the argument that trans people already have to endure harassment in their day-to-day life. Forcing them to remove their clothes in front of a committee of six people, just for the state to register them as how they wish to identify, was not compatible with basic dignity.
Despite attempts by opponents to lobby the Council on Islamic Ideology to give a negative recommendation, the Council ended up becoming a strong ally for the activists and lawmakers in the parliament. On March 7, the legislation was approved in the Senate, andtwo months later, it passed in the National Assembly. Currently, it sits on President Mamnoon Hussain’s desk, waiting to be officially signed into law.
Proponents of the bill know that there is still a long way to go. Given that the president will not use his veto authority to send the bill back to parliament, there is still the matter of fair implementation of the letter and spirit of the law. However, the community knows that it won a major legislative victory with Chapter II of the Transgender Persons (Protection of Rights) Act, which gives every transgender person the “right to be recognised as per his or her self-perceived gender identity.”
“Our main goal with this bill was to avoid any medical and psychiatric gatekeeping at the state level,” Mehlab explains. “With this bill, there will be full legal recognition on one’s self-identification, on one’s own terms.”