Transgenders__a dilemma of being less human


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some legal aspects of the transgender legal status in the world. the paper was read over at 8th International Law Conference, Siem Reap, Cambodia held in May, 2013 by LawAsia

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Transgenders__a dilemma of being less human

  1. 1. 1 Title; Transgender- a dilemma of being Less Human in Session 4th; Gender Discrimination: Prevention and Remedies Law Asia; Employment Law Conference, 23-24 May, Siem Reap, Cambodia By; amer nadeem (Pakistan) 1. Background; History of law is as old as the human is. Before the advent of modern era & democratic values the laws were structured to protect the power elites. Whether it’s the king, the religious monarchy, a community or else reining the sceptre of power; laws were their home maid. The gender was no exception. Male throughout the history holds the command of almost all times, so the law is. Even in modern legal books the word “HE” connotes both male & female, as General Clauses Act of many countries & other statutes provides, but not vice versa. Male domination resulted the male orientation in the legal arena. However, thanks to human rights values & modern awareness that endeavours to balance the gender discrimination is on the way. The women have proved their strength being equated with their opposite sex. Women emancipation movements have paved the way for elimination of discretionary laws. Today, constitutions of almost all countries speak that no law emanating the gender discrimination shall be
  2. 2. 2 passed. Resultantly, at least in legal books, the gender discrimination has been avoided. Is it the closing stage? No, it’s just a beginning. There is a third one; transgender. It’s a missing link in the history & law, too. 2. Gender; a Lexical predicament; The term “Gender” is always taken as “male & female”, as the prevalent definition is. World Health Organization (WHO) differentiates the term “sex” & “gender” as; "Sex" refers to the biological and physiological characteristics that define men and women. & "Gender" refers to the socially constructed roles, behaviours, activities, and attributes that a given society considers appropriate for men and women. Lexical experts also find no exceptions, for instance the Oxford defines the “Gender”
  3. 3. 3 “ [mass noun] the state of being male or female (typically used with reference to social and cultural differences rather than biological ones)” Same is with legal definitions prevailing in world like Pakistan Penal Code, 1860, Indian Penal Code 1860, Malaysia Act 574 Penal Code defines the term “Gender” “S. 8. The pronoun “he” and its derivatives are used of any person, whether male or female.” The General Clauses Act, 1897 have the same connotation wherein, “13. Gender and number.- In all 3[ Central Acts] and Regulations, unless there is anything repugnant in the subject or context,-(1) words importing the masculine gender shall be taken to include females;” The situation is identical in all countries of the world where the “Gender” is taken as male & female. So much so, in Europe, the law relating to sex discrimination is heavily influenced by European Union law. Article 141 of the Treaty of Rome provides ;
  4. 4. 4 ‘‘Each Member State shall ensure that the principle of equal pay for male and female workers for work of equal value is applied.’’ That’s really great to protect & elaborate the rights of both sexes, but at the same time it’s apathetic to overlook the third sex. Being weak & without power, the transgender are missing from the commandments of law as once the woman was. Why gender means only male & female? Why transgender are overlooked? Are they human? If yes, then we have to revisit the definition of the “Gender” to include the transgender. 3. Problem analysis; I. Identity Crisis; Transgender are looking for acknowledgment of their entity. They are rather stigma not only in socio-economic terms but in the legal, too. Only male & female are taken as gender. Transgender are ousted from the definition of human. They are not part of the gender. Its root of all problems; identity crisis. As per a legal maxim, “where there is a right there is a remedy”. In the case of transgender they have no right as neither they are male nor female. So their remedy is also questionable. Even, they can’t claim as subject to gender discrimination as they are alien to the term gender. In fact,
  5. 5. 5 transgender are entity without identity. They are not only out of the term gender or legal sphere but from the world’s conscious. Reason is obvious, our world is reluctant to acknowledge the transgender as human & their legal rights, too. II. Out of Population census; Though in less numbers yet transgender aren’t less human. How many they are? Exact figure is not there, various studies though on small scale, reveals different numbers, however they are estimated between .5 to 1% of the population. In an era, when a tiny subject on the road can be traced from space, we are unable to have, even a roundabout, figure of one of our gender specie. Reason is obvious, they in most of the countries, are not in gender column of the national census. In the relevant form for the population census, only male or female option is given. No choice for the transgender but to be male or female. End result is evident that they are out of the census. Without knowing population of a specific gender community how legal rights, job opportunities, health care & other utilities can be measured? Transgender, not only in identity crisis but in population census pickle, too. III. Identity Documents;
  6. 6. 6 Like any human, in order to live safe, full, and authentic lives, it is essential that transgender people have access to identity documents, such as national ID, that accurately reflect their name, gender identity, and gender expression. However, one should not surprise to know that there is rare mechanism for such a process for getting such document. Same is with birth certificate, domicile, school certificate, driving license & other necessary documents because one has to be either male or female. No column or entry for the transgender. They opted to be aloof from the process as being social compulsions or fear of mockery. Here once again, one can find the root cause being missed from the books of law. IV. Family & inheritance rights; Like a normal human being the transgender have the right to create a family through biological or other means. Right to be connected with their loved ones is inalienable right. Because legal family relationships are often tied to a person’s legal gender. The transgender people often face legal problems with respect to parents, foster care, adopt children, parents adoption, domestic partnership etc. In many countries, laws are mum on such scenario. Same is with inheritance & property matters, how much share a transgender would inherit? What would be bequeathed rights of a transgender? The law is rare
  7. 7. 7 to answer. Being a human, transgender should have all rights as other sexes have. V. Immigration; Being transgender, they often discriminated during the immigration process. Transgender immigrants face unique and sometimes daunting barriers trying to obtain documentation that matches their gender identity. They may also experience challenges when applying for visas, asylum or other hardshipbased status. Lack of adequate laws & rules prevents them to go through the process as smooth as male or female are. VI. Criminal justice & Prison; Absences of any legal rights or protection the transgender have to go through an ordeal during criminal justice system. From investigation to trial process transgender people face bias, discrimination & problems. In the jail like any inmate they deserve lives free from violence, with the opportunity to live as their authentic selves. Transgender people face heightened levels of violence and vulnerability when they are incarcerated, experiencing
  8. 8. 8 harassment and danger throughout the system. This puts their lives and well-being in serious jeopardy. In addition, the discrimination that transgender people face in the workplace often creates serious economic hardships. Some transgender people engage in sex work, drug sales or other aspects of the street economy in order to survive. This puts them at a higher risk of arrest and imprisonment. Some transgender people have also been arrested simply because they are transgender because of prejudice on the part of a police officer who believes that all transgender people are engaged in illegal work. VII. Pejorative & abusive connotation; Laws are lacking on gender specific pejorative terms, intimidation, harm another person because of their gender. Off course, transgender are victim of this inhuman, abusive & obscene language. Some words are specific for transgender, including "tranny", "she-male" or "he-she". Many countries laws prohibits discrimination in employment based on sex, yet the sex is taken as male & female. The ordeal of the transgender could be averted with stern defamatory & innuendo laws with specific reference to transgender. VIII. Housing & public accommodation;
  9. 9. 9 Though various statutes protects entry of the citizens at public places yet transgender faces hurdles on account of their gender. Any place that provides goods and services to the general public is considered a public accommodation. This includes restaurants, grocery stores, health clinics, hospitals, health clubs, homeless shelters and most social services. Transgender and gender nonconforming people often experience discrimination in their communities when accessing public accommodations including being refused service, being treated differently than their non-transgender peers, or being victims to harmful verbal and physical violence when simply trying to carry out their daily activities. Seclude places to live for transgender can’t be recommended yet special care & legislation are needed regarding their housing & public places access rights. IX. Employment inconveniences; Discrimination is a major contributor to the tremendously high rates of unemployment and underemployment faced by transgender people. Sometime they are refused for the employment on the basis of their gender. In certain case, transgender are unable to get job as lacking of their quota, as in most countries specific jobs are allocated for specific
  10. 10. 10 sex or on quota system with certain ratio of male & female. But there is no concept of quota or specific jobs for transgender. Even if they are on job, the harassment, sexual assault & abusive language are there to tease them. Often difficult for the administration to treat them as male or female as specific legislation for transgender is missing in employment laws. X. Health Care; Transgender people, like all people, deserve skilled and compassionate health care. Knowledgeable care can mean the difference between life and death for members of our community. Improving transgender access to the health care system through changes in law, policy and attitudes should be a top priority for the world. From cradle to grave they face discrimination. A child born as TG does not have any “special” protection mechanism available to them from government/hospital/health care units level & they are at the mercy of their parents/family. Many infant transgender are killed without remorse due to the shame or stigma attached. Medical science speaks a volume that much can be done in early days in terms of surgery, re-assignment & medication to avoid complication in the coming age.
  11. 11. 11 XI. Youth uplift; Young people who are perceived as gender nonconforming, or who identify as trans or gender queer, regularly face harassment and abuse at school, in group homes, and other settings. Schools and other institutions, parents etc are needed to sensitize through legislation & other modes about their legal obligations or best practices with respect to trans or gender variant youth. Transgender need to equate the challenges that arise when a young person is transitioning, including accessing medical care like puberty blockers or hormones, filing for a legal name or gender change, and making sure that the school/institution is respecting the student’s gender identity. In short what a trans youth is missing; his identity needs to bestow through legislation or conventions. 4. Pakistan Supreme Court on Transgender (a study case); Like many developing countries transgender in Pakistan were no more in socio-legal arena. They were just to appease the gathering through their dances, singing, sex gesture, sometime drug taking etc. Concept of their CNIC (computerized national identity card) or other national documents was naïve in the land. Same was with right of vote, even their registration as voter was rare or almost nil. No concept of family rights or inheritance,
  12. 12. 12 Then, it was the year 2012, when Supreme Court of Pakistan took suo moto notice on apathetic living of the transgender. After thorough hearing of the stake-holders SC held; • TG have equal rights in all the fields of life including education, employment in a dignified manner as other citizens have. They can’t be denied merely on the basis of their gender. • Government was ordered to inculcate third column in CNIC (national Identity Card) for TG besides “male/female” & bring them into the national data base. • Election commission was ordered for a vigorous enrolment campaign for transgender voter, make sure their votes & TG were allowed to contest the elections at any level. • Government was order to create jobs for TG in Govt & semi-Govt departments • TG have inheritance & family rights, they can’t be deprived of their legal inheritance rights mere as bring TG, Government was ordered to make laws & rules to protect their rights.
  13. 13. 13 This decision proved landmark judgment in the history of Pakistan, after the SC judgment, the situation is rather improved as; • TG are in Govt, sami-Govt & bank jobs esp in recovery wings. • A large no of CNIC issued to TG & their votes are registerd registered. • Ist time in the history of Pakistan, 5 TG are contested General elections 2013. • Above all sense of “entity” is there. Though a lot is yet to be done. 5. Objectives & Hypotheses; The world needs to sensitize that the transgender are as human as male & female are. Without adding transgender in the definition of the “Gender”, the gender concept can’t be completed. It’s identity crisis syndrome which transgender are facing. Its sheer discrimination not to treat TG as the Gender. World bodies esp UNESCO & countries are to be lobbied to make laws for the transgender & weed out the gender discrimination.