Rights Wire

The Human Rights Blog of the Leitner Center for International Law and Justice

Pushing for a return of LGBTI rights in Pakistan

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By Urooj Rahman

In Pakistan, lesbian, gay, bisexual, transgender, and intersex (LGBTI) people are often systemically marginalized, with very few of their basic rights protected and little opportunity to live openly without fear of physical or emotional violence. Transgender individuals in particular typically earn a living through begging or working as hired dancers for weddings ceremonies and other celebrations in which men and women are often segregated. Gay and bisexual men as well as transgender and intersex people also take part in sex work in order to make ends meet.

Although Pakistan actually has a tacitly-accepted underground gay and queer subculture in certain areas—particularly when it comes to male-to-male sexual or intimate interactions—speaking openly about one’s status as an LGBTI individual is still considered taboo and can be dangerous.

RAMPANT ABUSES

LGBTI people are often blackmailed, kidnapped, sexually assaulted and detained for voicing their concerns or asserting their rights. A 2014 International Gay and Lesbian Human Rights Commission (IGLHRC) report revealed that discrimination and violence against lesbians, bisexual women and transgender people continues to remain widespread throughout many Asian countries, including in Pakistan. The report highlighted that LGBTI individuals often face emotional and psychological abuse as well as physical and sexual violence. Often, the perpetrators of such abuse are family members who do not respect their relative’s gender non-conforming identities. For instance, one of the respondents from Pakistan often felt that the emotional and psychological abuse of being forced to wear girls’ clothing as a child—when he identified as a male—was just as traumatic as the physical violence he endured because of his transgender identity.

The report also documented that lesbians, bisexual women, and transgender people in Pakistan reported high levels of domestic violence, with heterosexual men often being the perpetrators of such violence. According to the Neengar Society, a youth-led LGBT rights organization, threats or violence by family members against LGBT people usually go unreported and are often resolved within the family, even if individuals are badly beaten. Moreover, many lesbian and bisexual women said they were forced to enter into heterosexual marriages in order to escape lasting emotional, physical and sexual abuse from their communities.

Gay and bisexual men are also discriminated against, despite Pakistan’s reputation for a lively homosexual underground. The Neenjar Society documented ten cases of gay men being prosecuted for same-sex sexual activity; two cases resulted in ten-year prison sentences. These cases and many other instances of homophobia show that the tacit and silent acceptance of the widespread underground gay male sex culture is not actually tolerated when exposed in Pakistani society.

This structural discrimination and violence waged against LGBTI communities in Pakistani society occurs through both through the legal system as well as through patriarchal, cis-gendered hijacking of Pakistani culture. For example, the laws that are primarily meant to end violence against women are insufficient in extending adequate protections to lesbians, bisexual women and transgender people. Government officials and leaders not only often fail to prevent violence, but also create a culture of permissiveness through such laws, which condone violence and discrimination against lesbian, bisexual women and transgender individuals.

Another discriminatory law in Pakistan is section 377 of Pakistan’s Penal Code, which criminalizes same-sex sexual conduct or sexual activity that is “against the order of nature,” making offenses punishable by life imprisonment or a fine. The law is not just one part of the systemic violence and oppression that LGBTI individuals face in Pakistan, but it is also a remnant of British colonial times, which brought about a destruction of long-standing queer subcultures that were openly accepted in pre-colonial times on the Indian subcontinent.

NOT ALWAYS A CRIME

Being an LGBTI individual was not always a crime in present-day Pakistan. Before the British colonized South Asia, the rights of transgender, intersex and queer individuals were much more respected and protected, according to scholars. Gender non-conforming people and sexual minorities were readily accepted in the pre-colonial Mughal Empire, which ruled over modern-day India and Pakistan. For centuries, in fact, the existence and recognition of the “third gender” was widely accepted in India, present-day Pakistan, Bangladesh, Nepal, the Middle East, the Ottoman, Safavid, and Mamluk empires and beyond.

While Western states either failed to give recognition to or further oppressed their queer communities, the Mughals of South Asia treated gender and sexual minorities with dignity and created an environment of inclusion and prosperity, rather than marginalization and poverty for LGBTI people. The Mughals enabled gender non-conforming individuals to become part of their royal courts and to be given positions of high esteem. Many gender non-conforming and queer people were able to achieve positions of high regard and respect, while also having the opportunity to accumulate wealth. The Khwaja-sira and Hijra communities of Pakistan also draw their histories and identities from this time. Furthermore, transgender and queer individuals have a long history in South Asia. The texts of the Kama Sutra, the ancient Indian Hindu text on human sexual behavior, written as far back as 300 to 400 B.C., even refer to a “third sex” in Sanskrit literature.

Though many Western LGBTI advocates attribute conservative religiosity, such as Islamic and Hindu extremism, to the marginalization of LGBTI people in South Asia, this is not the case. The Mughals, despite their secular ways, were Indian Muslim rulers, who held onto their Muslim identities while governing. For example, they worked to incorporate the Islamic concept of “doing justice,” which promotes egalitarian values, by creating an inclusive environment for many minorities in India, including queer communities.

This long-standing norm of acceptance of queer communities came to an end largely when the British imperialists colonized India. Of course, the sharp decline in LGBTI rights on the sub-continent cannot wholly and completely be attributed to the British colonizers, as there is some personal accountability South Asians must take in enabling the steady decline of queer rights in India. But in the late 19th century, anti-homosexual criminal laws were imposed upon newly conquered colonies by Britain. The British Parliament approved and enacted the Indian Penal Code (IPC), including section 377 in 1860. British colonial legislators and jurists passed such laws without any regard for cultural traditions, principles, local customs, laws and social policies. These laws essentially promoted structural divisions, institutional cleavages, and encouraged deeper wedges of hierarchy, which gave rise to widespread discrimination and violence against gender non-conforming people and sexual minority populations. They consigned people to inferior status on the basis of their identities and biological and anatomical ambiguities. Essentially, people were “otherized” and criminalized because of their physical attributes, how they looked, with whom they chose to become intimate and/or who they chose to love, among various other factors.

British imperialists, who clearly had the all-too-common and disturbingly-misguided “white savior” complex, thought their colonial subjects needed to be taught “proper sexual ethics.” Imperial rulers found it their burden to ensure that newly established British settler societies in colonial India (and elsewhere throughout the British empire) did not fall prey to immoral temptations influenced by native ideals of sexual openness and expression, which imperialists viewed as hedonistic promiscuity. They instituted these barbaric penal codes in order to subjugate the masses, whose “native cultures did not punish ‘perverse’ or ‘unacceptable’ sexual conduct enough.” Part of this was to push the indigenous (pre-partition) Indian population (which included the ancestors of present-day Pakistanis) to adopt what the British perceived to be “civilized and morally superior” European principles into the resistant indigenous Indian society. In their quest to do this, the British imperialists instituted a discriminatory system that still lives on today in Pakistan, India, and other former colonies.

A LONG WAY FORWARD

Nonetheless, more recently, Pakistan saw a reversion back to its pre-colonial acceptance of LGBTI individuals when the Pakistani Supreme Court acknowledged a third gender option on national identity cards in 2012. This decision came a few years after a transgender man, Shumail Raj, and his wife, Shahzina Tariq, were initially convicted and jailed for perjuring about their marriage in May 2007. Their marriage was deemed an illegal same-sex marriage arrangement by the Lahore High Court (an intermediary court). The court did not recognize Shumail to be a man, even after he received gender-reassignment surgery to match his anatomical sex with his gender identity. Though they were sentenced to three years of imprisonment, the couple was jailed for a period of three months, after which they were finally released on bail by the Pakistani Supreme Court, which agreed to hear their appeal. However, because the Chief Judge of the Supreme Court was ousted when martial law was later declared in 2007, their appeal has yet to be heard.

Still, Pakistan has a long way to go in order to ameliorate the institutional and systemic discrimination that it perpetuates against the LGBTI community, among many other marginalized groups. Pakistan, among many other Asian countries, has the ability to revive the respect for queer subcultures it once proudly boasted. The acknowledgement of the third sex is a step in the right direction. However, a full integration and acceptance of the LGBTI community in Pakistan must occur so that they can live openly without fear of poverty, abuse or violence. This should include adhering to international human rights law, alleviating social and economic hardships faced by LGBTI individuals and ending institutionalized discrimination.

Urooj Rahman is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Shahzeb Ihsans/Creative Commons

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Author: leitnercenter

Rights Wire is the human rights blog of the Leitner Center for International Law and Justice at Fordham Law School.

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