TRANSGENDER EMPLOYMENT QUOTAS IN PAKISTAN
Author: Kirsten O’Connell
Department: Pakistan Team
Transgender people in Pakistan are abused and marginalised, often living in a low socio-economic community with their fundamental human rights blatantly violated (Ramay, 2017). According to Human Rights Watch (2016), if an individual’s gender evolves differently and does not fall within the ‘traditional notions of female or male’, it is no reason for those individual’s not to enjoy their fundamental rights or be humiliated to the extent that it becomes fatal (Knight & Ghoshal, 2020). Accordingly, this article will seek to identify a definition of a transgender individual. It will provide a brief historical overview of transgender people in Pakistan and an overview of the development of quotas in Pakistan. It will also seek to identify the human rights protections accorded to the transgender community by the Pakistani legal system, considering landmark judgements, and any legislation set in place, with specific emphasis on the right to employment. Thereafter, this article will provide an analysis of the quota systems in Pakistan related to the transgender community.
The term transgender can define a person whose gender identity is different from the sex the person had or was identified as having at birth (Merriam-Webster, n.d.). Nevertheless, there is no set definition of a transgender person in international standards. The Commission for Human Rights for the Council of Europe defines a transgender person as those who may have a gender identity that is different from the gender assigned to them at birth, as well as those who wish to portray their identity differently from the gender assigned at birth. The Yogyakarta Principles (a set of principles on the application of international human rights law in relation to sexual orientation and gender identity), do not give a definition of a transgender individual, but define gender identity as, each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth. This includes the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender including dress, speech and mannerisms (ICJ, 2020). In Pakistan the Transgender Person (Protection of Rights) Act, 2018 (Act), in Chapter I, Section 2 (f) defines gender identity as a “person’s innermost and individual sense of self as male, female or blend of both or neither that can correspond or not to the sex assumed at birth,” a definition that is compatible with the one in the Yogyakarta Principles. In Chapter I, Section 2 (n) a “transgender person” is someone who is: (i) “Intersex” (khusra) with a “mixture of male and female genital features or congenital ambiguities,” or (ii) “eunuch assigned male at birth, but undergoes genital excision or castration,” or (iii) a “transgender man, transgender women, Khawaja Sira or any person whose gender identity or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of birth.”
“Transgender people have been recognized in South Asia for centuries – the gender binary idea came into the picture only when the colonizers arrived,” says Omar Waraich, deputy director of Amnesty International in South Asia. “Sadly, they are ostracised and treated as freakshows by large sections of society” as a result (Ayyar, 2018). The Indian region has a rich history of the existence of transgender individuals for more than four thousand years. Anthropologist Gayatri Reddyt divides the history of transgender people into chronological periods in time: ancient, mediaeval (pre-colonial), colonial and contemporary (post-colonial). Evidence suggests that transgender people appeared in ancient Indian texts from the Hindu and Buddhist traditions. The mediaeval period saw the emergence of the term eunuchs, or castrated men, of the royal Mughal courts, who were known as Khwaja Siras. These individuals served as army generals, harem guards, and advisers. The Khwaja Siras were considered ideal protection for women because of their inability to reproduce (Khan, 2014). The pre-colonial era, therefore, celebrated transgender people and gave them a special place in society. The 18th century Maratha State even provided them with rights and catered to their rights specifically, by giving them land and cash grants, and special positions at royal courts. The Indian Supreme Court in NALSA v. Union even highlighted this when it recalled transgender individuals historically being celebrated and going as far as attributing them to folk stories of Indian gods and goddesses (Ramay, 2017).
However, the later historical accounts indicate that British colonisers identified transgenders as a criminal caste, a classification that could cause individuals to be subjected to arrest and surveillance (Khan, 2014). With the onset of colonial rule, transgender people were marginalised and considered ‘barbaric’ by the British. The British Raj even enacted the Criminal Tribes Act 1871, that classified the entire transgender community as innately ‘criminal’ and prone to systematically committing non-bailable offences. The Act allowed control of certain tribes of castes deemed criminal and allowed for penalisation of transgender individuals if they performed, danced or dressed as a woman. They could also be arrested without a warrant and imprisoned for up to two years. The impacts of British colonialism are visible in modern-day society. Today, transgender people are treated and considered less than other people from an early age. They face discrimination at family level, in schools and in the workplace (Khan, 2014). We can see that transgender individuals have become social outcasts as a consequence of these practices that were legally authorised by colonial rule: being criminalised for being transgender, forced into begging and prostitution and stripped of their fundamental human rights (Ramay, 2017).
In many ways, the marginalisation of transgender people in Pakistan today is intimately tied to the colonial State’s creation of a “new public order”, which meant a redefinition of masculinity. As the ideal man was physically strong, occupied himself with ‘masculine’ pursuits like hunting and sports, and above all, stood at the top of the hierarchy of society. The “discovery” by the British of a gender-variant community therefore subverted and threatened this hierarchy of masculinity that colonial rulers sought to create. The British sought to discipline and ultimately erase gender diverse individuals like transgender people, by criminalising them under the Criminal Tribes Act of 1871, thereby creating a pattern of control that continues to be seen today. This Act was repealed in 1949 after the partition of the Indian subcontinent into India and Pakistan. However, transgender activities were still banned in the early 1960s during the presidency of Ayub Khan. The ban was lifted after transgender activists staged a sit-in at Khan’s residence. It was not until 2009, when the Pakistan Supreme Court (SC) ruled that provincial governments should protect the rights of transgender people, that the real change began. The SC granted rights to transgender people in a series of rulings, and ordered the federal government to issue transgender individuals national identity cards indicating their gender status. In subsequent hearings, the SC ordered the provision of security, inheritance, and voting rights, educational and job opportunities, and access to government welfare programs for the transgender community (Khan, 2014).
Quota systems in Pakistan were first instituted in 1948 for civil services to provide underrepresented minorities, such as Bengalis, a better chance at life. The quota systems gave the impression that the State sought to integrate historically marginalised tribal and ethnic groups (Rana, 2017). As can be seen in this quote by Davis and Kalu-Nwiwu (2001) “colonial legacy of patently artificial borders being drawn for the convenience of European conference tables bequeathed to many newly independent…nations a motley mix of people, each with their own separate loyalties and traditions.” In the middle of the twentieth century, a large number of Asian countries, including Pakistan, gained independence from colonial empires. Many of those countries like Pakistan were fractured and divided, with exceedingly unequal levels of growth and stability across regional, social, ethnic and religious boundaries. This nation-building is a process that seeks to “unite a people under a government and to create among them a stable cultural, economic, political, and social community” according to Davis and Kalu-Nwiwu (Warikoo & Utaukwa, 2019). Accordingly, to build a collective nation, leaders instituted a wide range of development programs, one of which was quota systems. The federal and provincial governments of Pakistan instituted quota systems like this for example: East Bengal, accounted to 56.7 percent of the population, and received a share of 42 percent in civil services to add to their grievances against the central government. Furthermore, in Karachi they received a 2 percent share and 15 percent share in civil services for migrants because they had around one million in 1951. The federal and provincial governments that followed over the years, highlighted an identity group that had endured historical oppression and social exclusion, such as women, disabled people and minorities (Rana, 2017).
In 2018, the transgender community celebrated the passage of a landmark law which recognised their basic rights. The Transgender Persons (Protection of Rights) Act, 2018, allows citizens to determine their own gender identity, as well as banning harassment and discrimination against transgender people by employers, education services and healthcare providers. The Act aims to define transgender people, prohibit discrimination against them, confer rights upon transgender people to be recognised as such, and a right to self-perceived gender identity. It seeks to provide that no establishment shall discriminate against transgender people in matters relating to employment, recruitment, promotion, education, and other related issues, as well as provide for welfare measures by the government for transgenders. The Act prohibits harassment in Chapter 1 (2) (h) which includes sexual, physical, mental and psychological harassment.
It prohibits discrimination in Chapter III (4) providing that “[n]o person shall discriminate against a transgender person”. It mentions the following grounds for that prohibition, such as (b) “the unfair treatment in, or in relation employment, trade, or occupation, (c) the denial of, or termination from, employment or occupation. The Act emphasizes the obligations of the government under Chapter IV to take steps to secure full and effective participation of transgender persons and their inclusion in society, namely: (d) to formulate special vocational training programmes to facilitate, promote and support livelihood for transgenders, (e) encourage transgender persons to start a small business by providing incentives, easy loan schemes and grants. Furthermore, Article 9 (1) states that “the government must ensure the right to enter into lawful employment or occupations and conduct any lawful trade or business for the Act as guarantees under Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973”, and that (2) “[n]o establishment, institutional department, organization, shall discriminate against any transgender person in any matter relating to employment including, but not limited to, recruitment, promotion, appointment, transfer and other colonial issues.
The Constitution of Pakistan’s Principles of Policy provides that “[s]tates shall safeguard the legitimate rights and interests of minorities, including their representation in federal and provincial services. Further, it states that the State shall (a) promote, with special care, the educational and economic interests of backward classes or areas; (e) make provision for securing just and humane conditions of work.” Furthermore, it provides the State shall (b) provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure. The Constitution of Pakistan, 1973, under Article 25 (1) of the Islamic Republic of Pakistan states the general prohibition on discrimination, which is of particular relevance as it directly prohibits any discrimination based on gender. It provides for equality of all citizens and equal protection before the law. The right to equality in Pakistan under Article 25 appears to give both formal and substantive equality to its citizens: the former because it recognises all the ’citizens’ to be equal on the basis of law and prohibits discrimination on the basis of sex. Furthermore, it provides under Article 18 that every citizen shall have the right to enter into lawful professions or occupations, and to conduct any lawful trade or business.
On May 24, 2021, it was reported by Dawn that transgender people would be given official jobs at the Local Government and Community Development (LG&CD) after it decided to create a two percent employment quota in several posts lying vacant in local governments, such as councils (Union Councils, Municipal Corporations), the Walled City of Lahore Authority and the Local Government Board (Husain, 2021). The federal or provincial governments may allocate employment quotas for transgender people and guarantee the strict implementation of such policy by the respective authorities and even create penalties and legal recourse in case of non-compliance (NCHR, 2017). They can do this because in 2009, Dr. Aslam Khaki filed a petition in the Supreme Court (SC) in response to a case of police violence against a group of transgender people and the SC passed a judgement holding that respective provincial governments should take adequate steps for the protection of the fundamental citizenship rights of transgender people. It held that transgender people are “citizens of this country and subject to the constitution of the Islamic Republic of Pakistan, 1973, their rights, obligations including the right to life and dignity are equally protected.” Therefore, no discrimination, for any reason, is possible against the transgender community as far as their rights and obligations are concerned. It is worth noting that this ruling also led to the federal government legislating specific rights and protections for the transgender community like the Transgender Persons (Protection of Rights) Act, 2018 (Khan, 2014).
Returning to the Dawn news report, the LG&CD department secretary Noorul Amin Mengal told them that “[w]e have taken a policy decision to allocate a two percent quota in all vacant posts for transpersons begging at intersections, streets, and markets since they have no jobs. We are doing this in line with the Constitution of Pakistan which guarantees equal rights to everyone without discrimination” (Husain, 2021). Transgender people are usually excluded from education and that means 42 percent of the community is illiterate, and 51 percent of transgender earnings come from dancing, 15 percent from sex work and 12 percent from begging. This increases their susceptibility to sexually transmitted diseases and their inferior status makes them vulnerable to physical violence and emotional and sexual abuse (Karijo, 2021). The Pakistan Bureau of Statistics (PBS) had posted the results of the 6th Population and Housing Census 2017 on its website at the time of this news article from Dawn. According to the Census, 321,744 transgender persons make up the population of Pakistan (Husain, 2021). However, other reports say the actual number of transgender people in Pakistan is unknown to authorities because there is no official record and others state there is believed to be 1.5 million transgenders in Pakistan. The LG&CD department considers transgender people to be one of the most underprivileged and neglected communities in Pakistan. In order to safeguard their rights and empower transpersons, they see it as essential to make them part of their workforce. Therefore, like quotas reserved for women (15 percent), disabled people (3 percent) and minorities (5 percent), the “department intendeds to reserve a 2 percent employment quota” for transgenders in LG&CD attached departments, bodies, authorities, and local government institutions (Husain, 2021).
The report revealed that 1,500 posts, as per quota, are likely to be dedicated to transgender people in the near future. The LG&CD stated that “[i]t is not necessary to offer them lower grade jobs as we also have some vacant posts of officers for them. Speaking to Dawn, transgender activist Jannat Ali said the 2 percent job quota would ensure the inclusion of several transpersons in the government departments. She said it would “motivate the transpersons to play a constructive role in society” (Husain, 2021). Furthermore, on December 25, 2021, a report from Tribune stated that after years of battling social stigma, discrimination, and lack of access to employment, the Sindh provincial government promises to create a 0.5 percent reserved quota for transgenders in the employment sector. The report stated that there were currently 41,000 vacant jobs in various Sindh government departments out of which 206 jobs will be reserved exclusively for transgenders. However, in 2019, the Sindh police also made a similar promise aimed at creating more jobs for the gender minority. The announcement made by then Sindh General Police Dr. Kaleem had touted the induction of transgenders into the police force. The notion was considered revolutionary and made headlines everywhere, but the community is still waiting for it to be put into action. Gender Interactive Alliance President and transwomen Bindiya Rana stated: “We have been hearing such news for quite some time, but nothing has been practically implemented so far.” She spoke of how the Transgender Persons Protection of Rights Act, 2018 was passed but stated that the Act would be nothing but paper, considering that three transgender persons have been killed in Karachi in one month alone (December 2021). She stated that the implementation of the law in Pakistan has been a real challenge while lamenting further about the rising discrimination against her community (Tunio, 2021).
It would be an understatement to say that one of the biggest problems faced by transgender persons in Pakistan today is discrimination. This is seen within transgender lawyer Nisha Rao statements to NBC News as reported on June 1, 2021, where she recounts her time begging for money on the streets of Karachi, Pakistan’s largest city, to becoming the country’s first transgender lawyer. The report stated how Pakistan had made progress on transgender rights. However, being transgender in a predominantly Muslim country still comes with challenges, including being socially ostracized. She said that “[t]here are inherently a lot of problems with being transgender in Pakistani society” and “[t]ransgender people are targeted in society, and their friend groups, and people don’t see them as good people – they’re seen as bad.” Nisha Rao funded her studies, through a combination of loans and begging for more than eight years, an experience she characterised as routinely dehumanising. She stated “[p]eople were very disrespectful towards me and didn’t believe that I begged for my education (McShane, 2021).”
In 2015, Alisha, a 23-year-old transgender activist, was shot seven times in Khyber Pakhtunkhwa, and rushed to the Lady Reading Hospital in Peshawar, where she died because of delayed treatment, reportedly because staff couldn’t decide whether to place her in a male or female ward. Alisha bled to death, while being taunted by a group of men, according to her friends who blamed her death on discrimination. Nayyab Ali, a prominent trans activist said this problem is common; “[i]f you are a trans woman and you have a penis, you can’t go to the female doctor. If you go to a male doctor, they will say you are not a real transgender person”. This also causes problems at sexual health clinics, which places transgender sex workers at greater risks. In recent years, violence against transgender people has been on the rise. In November 2021, Ali was attacked in her home in Islamabad by two men wielding knives. She was held hostage for three hours, during which time she was beaten and robbed. “They think the only way to stop the voice of the transgender community is to stop the activists. Hence this increase in violence,” Ali stated. After the attack, 27 members of the European parliament wrote to the Pakistani government, demanding action against her attackers and as a result the police were forced to file a report on the incident, which, according to Ali, is a rare occurrence. “They are usually reluctant to file such reports. They will instead advise you to stop participating in activism,” Ali said. The situation in Khyber Pakhtunkhwa province is incredibly dire, and this is demonstrated by the death of Nazo a transgender woman who was hacked to death in 2018. She was the 62nd transgender person murdered in the province since 2015 (Karijo, 2021).
In conclusion, there are many issues concerning transgender people, from the exclusion of education, discrimination, to the lack of employment. These issues are pushing transgender people into the lowest parts of society, leaving them with no decent jobs and forcing them to work as beggars. The unsafe situation has made them prone to be victims of physical, and sexual violence, as well as murder, as seen in the number of murder cases in Khyber Pakhtunkhwa alone. The Pakistani law has prohibited discrimination against transgender people as seen within the Transgender Persons (Protection of Rights) Act, 2018. The Sindh government has taken steps by planning to institute a 0.5 percent employment quota for transgender people to alleviate the issues that surround the transgender community. These sorts of changes, if properly implemented, will allow transgender people to take themselves out of the circumstances they are in and facilitate them to get adequate jobs and livelihoods, like working for the LG&CD for example. If employment quotas are not instituted for the transgender community like they were done for other historically marginalised groups in Pakistan, then the issues surrounding the transgender community can only get worse.
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 Transgender Persons (Protection of Rights) Act, 2018, Chapter I, Section 2 (f).
 ibid I, Section 2 (n).
 Transgender Persons (Protection of Rights) Act, 2018, 10.
 ibid I (2) (h).
 ibid III (4).
 ibid IV.
 ibid 9 (1).
 Principles of Policy – Constitution of Pakistan, II, 2, art 36.
 ibid art 37.
ibid art 38.
Constitution of Pakistan 1973, art 25 (1).
 ibid art 25.
 ibid art 18.