By Sahar Bandial
For the vast majority in Pakistan, the third gender is an unknown. Hijras/eunuchs, transsexuals, transvestites and hermaphrodites continue to live on the social periphery, confined within their own communities and excluded from ordinary civic and social life. Our interaction with them is limited to a curious glance from behind a car-window, a hurried exchange of meagre charity at a traffic light or distant viewing of a celebratory routine at a wedding or a child’s birth. We remain unaware of their struggles or their little victories and unaffected by their social, economic and physical oppression.
A brutal attack on a transgender female in Peshawar and the denial of medical treatment to her by a leading government hospital jolts us into recognising our bigotry and cruelty towards the third gender. We are told that Alesha was just one of several casualties of hate crimes against transgender persons that are ordinarily brushed aside without consequence.
Just as our collective conscience settles into its usual inertia, a little known religious organisation in Lahore picks up the subject of transgender rights. Islam enjoins respectful and fair treatment of transgender persons, declares the Tanzeem Ittehad-e-Ummat Pakistan. The Tanzeem goes on to rule, more controversially, that a marriage between a transsexual-male with visible signs of being female and a transsexual-female with visible signs of being male is permissible in Islam.
The fatwa draws attention across foreign media and evokes curiosity amongst some, confusion and disapproval amongst others. Some celebrate the edict as a victory; others criticise its ambiguity or deem it largely irrelevant in our socio-legal landscape. The immediate consequence: a re-opening of the discussion on transgender rights.
In a landmark decision in 2009, the Supreme Court ordered NADRA to allow individuals to self-identify themselves as ‘transgender-male’ or ‘transgender-female’ on national identity cards, in effect providing official recognition to the third gender. In 2012, the Supreme Court affirmed the status of hijras/eunuchs as equal citizens under the Constitution of Pakistan, with equal guarantee and protection of all fundamental rights.
The Court ordered that hijras be provided the right to participate in all walks of life, to exercise franchise, receive education and access employment.
Reality, however, is a far cry from the lofty ideals propagated by the Supreme Court. Members of the third gender are chastised and harassed for their ‘difference’, ostracised from all walks of life and denied the very basic human freedoms and entitlements — education, healthcare and employment.
The re-opening of the discussion on transgender rights, this time on a religious platform is important. The fatwa confronts embedded cultural prejudices against the third gender that may often be rationalised on religious grounds.
It may also help garner necessary religious and social consensus for the protection of transgender rights. The fatwa, however, carries no legal force and leaves unanswered important questions regarding transsexual marriage, in particular the import of sex-reassignment surgeries — an issue the Lahore High Court had to grapple with in 2007.
What then does the law say about transsexual marriages? If transgenders are equally entitled to the protections accorded to other citizens under the Constitution, why then does the current state of political and social indifference and exclusion persist? What justifies our cruelty and prejudice? These questions must be answered.
The state must pass substantive and clear legislation that ensures protection against harassment of transgenders, makes provision for the regulation of their personal matters and lays down mechanisms for mainstreaming them in political and social life and for the enforcement of their fundamental rights. We must take responsibility for our bigotry against the third gender, apologise for the various injustices of which each one of us may be individually guilty and reform our ways.