Abstract
The International Commission of Jurists (ICJ) has recently issued a Briefing Paper regarding the Transgender Persons (Protection of Rights) Act of 2018 of Pakistan. Stating the passage of this Act a crucial progress, ICJ suggests that this enactment was made under an international law obligations of Pakistan. This paper, while not agreeing with this observation, argues that this law has been promulgated on misrepresented interpretation of the international law as presented in the ICJ Briefing Paper as well. Additionally, it undermines the rights of the indigenous gender-variant people of Pakistan as well as the legal and social framework of the country. The law is more aligned to the global movement of the lesbian, gay, bisexual and trans (LGBT) communities and contains serious definitional and conceptual flaws. This study suggests working out a scheme for mainstreaming gender-variant persons on the basis of the Constitution of Pakistan, guidelines of the Supreme Court of Pakistan and the recognized principles of international law. This would require a thorough review of the current law with a changed approach and reference point.
Highlights
IntroductionEnacted by the Parliament of Pakistan on May 18, 2018.3 The International Commission of Jurists (ICJ) Briefing Paper analyzes some salient provisions of the law[4] and this is important because ICJ is a renowned international organization on issues related to human rights and law and because ‘sexual orientation and gender identity’ matters are among the key themes of the organization.[5] At the same time, the Act that it reviews is significant because it had, for the first time, provided for the rights of a marginalized section of society i.e. those who fall out of the binary division of male and female
On March 31, 2020, the International Commission of Jurists (ICJ)[1] issued a Briefing Paper on The Transgender Persons (Protection of Rights) Act, 2018 (Act No XIII of 2018) – referred hereinafter as ‘Act’.2 This Act was [7]enacted by the Parliament of Pakistan on May 18, 2018.3 The ICJ Briefing Paper analyzes some salient provisions of the law[4] and this is important because ICJ is a renowned international organization on issues related to human rights and law and because ‘sexual orientation and gender identity’ matters are among the key themes of the organization.[5]
This study suggests working out a scheme for mainstreaming gender-variant persons on the basis of the Constitution of Pakistan, guidelines of the Supreme Court of Pakistan and the recognized principles of international law
Summary
Enacted by the Parliament of Pakistan on May 18, 2018.3 The ICJ Briefing Paper analyzes some salient provisions of the law[4] and this is important because ICJ is a renowned international organization on issues related to human rights and law and because ‘sexual orientation and gender identity’ matters are among the key themes of the organization.[5] At the same time, the Act that it reviews is significant because it had, for the first time, provided for the rights of a marginalized section of society i.e. those who fall out of the binary division of male and female. Redding has discussed the Act mainly in the context of the global debate on gender issues motivated by LGBT movement, and has focused some of the ‘numerous questions’ regarding implementation of the Act as well as its impact on current legal framework of Pakistan.[6]
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