Closing the legal gaps: Advancing transgender justice in Pakistan

The legal recognition and protection of transgender rights in Pakistan has been subject to a complex interplay of societal norms, cultural practices, and legislative frameworks. A significant stride towards addressing the marginalization of this community was marked by the enactment of the Transgender Persons (Protection of Rights) Act (TPPRA), 2018. While this legislation constitutes a notable advancement, its implementation and alignment with international human rights standards present challenges. In particular, the Act's shortcomings in areas such as discrimination, healthcare access, violence prevention, and enforcement mechanisms have hindered its effectiveness in safeguarding the rights of transgender individuals. Moreover, the Act's implementation has been marked by a notable absence of robust enforcement mechanisms. To rectify these deficiencies and ensure the effective protection of transgender rights, comprehensive reforms are imperative.

The Act is structured into seven chapters, each addressing critical aspects of transgender rights. Chapter 1 establishes foundational definitions, including terms such as "transgender person" and "gender identity”. Building upon these definitions, Chapter 2 focuses on the legal recognition of gender identity. Additionally, to ensure a safe and inclusive environment, Chapter 3 prohibits harassment and discrimination against transgender individuals in diverse sectors, such as education, employment, and healthcare while Chapter 4 outlines state obligations to establish separate prison cells and detention centers. Furthermore Chapter 5 encapsulates their entitlements to education, employment, voting, healthcare, inheritance, assembly, and property ownership. Chapter 6 establishes mechanisms through which transgender individuals can seek redress for rights violations and Chapter 7 grants the government the authority to formulate necessary rules for the Act's implementation and confers upon it overriding legal effect, solidifying its position as the paramount law in safeguarding transgender rights.

At the International Law front, Pakistan is a state party to several international human rights treaties that impose obligations for the protection of transgender individuals. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are prominent among the many that call for universal protection of individual’s rights including transgender persons. Consequently, Pakistan is expected to ensure all people irrespective of gender identity receive non-discrimination, equal protection under law, and access to essential services.

The United Nations' Universal Periodic Review (UPR) mechanism has also consistently emphasized the need for Pakistan to enhance protections for transgender persons, aligning national laws with international human rights standards.

Notably, harassment is a pervasive issue faced by transgender individuals in Pakistan, often manifesting in both public and private spheres. While the 2018 Act includes provisions against violence and harassment, it does not explicitly criminalize harassment, nor does it provide specific penalties for such behavior. Amending the Act to criminalize harassment and introducing corresponding penalties would provide transgender individuals with stronger legal protections. Furthermore, existing laws such as the Protection Against Harassment of Women at Workplace Act, 2010, and Section 509 of the Pakistan Penal Code, 1860, should be amended to include transgender individuals as potential victims. This would ensure that transgender persons have the same legal recourse as others when facing harassment, thereby promoting equality and dignity.

Importantly, Section 375 of the Pakistan Penal Code, 1860, currently defines rape as an act of sexual intercourse with a female. This definition, while clear, is exclusionary as it fails to recognize rape committed against transgender women. This gap in the law leaves transgender women without adequate legal protection against sexual violence, thereby perpetuating their vulnerability. This amendment would align with Pakistan's obligations under international human rights instruments, such as CEDAW, which requires states to prevent gender-based violence in all its forms.

Furthermore, for any anti-discrimination law to be effective, it must include clear remedies and penalties for non-compliance. TPPRA 2018, prohibits discrimination in various areas, including employment, education, and healthcare, but it lacks specific penalties for those who violate these provisions. Without enforceable penalties, the law's deterrent effect is significantly weakened, and instances of discrimination may go unaddressed. This would consequently align with Pakistan's obligations under ICCPR, which requires states to provide effective remedies for rights violations.

The language used in legislative texts also has a profound impact on the inclusivity and applicability of the law. Currently, many Pakistani laws use gender-specific terms such as "he" or "female," which may inadvertently exclude transgender persons. It is essential that all legislation, especially those concerning rights and protections, employ gender-neutral language. For example, terms like "every person" should be used to ensure that laws are understood to apply to all individuals.

The writer is an expert of International Law at IPRI