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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 its 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

passed.

Resultantly, at least in legal books, the gender discrimination

has been avoided. Is it the closing stage?
No, its just a beginning. There is a third one; transgender. Its 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.

http://www.who.int/gender/whatisgender/en/

Lexical experts also find no exceptions, for instance the Oxford

defines the Gender
[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 ;
Each Member State shall ensure that the principle
of equal pay for male and female workers for work of
equal value is applied.
Thats really great to protect & elaborate the rights of both
sexes, but at the same time its 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 cant claim as subject to gender discrimination as they are
alien to the term gender. In fact, transgender are entity without
identity. They are not only out of the term gender or legal
sphere but from the worlds 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 arent 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;

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 persons 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
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 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;

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

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

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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 cant 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 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

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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.

XI.

Youth uplift;

Young people who are perceived as gender nonconforming,

or who identify as trans or gender queer, regularly face

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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

students 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
sometime

through
drug

their

taking

dances,
etc.

singing,

Concept

of

sex

gesture,

their

CNIC

(computerized national identity card) or other national

documents was nave in the land. Same was with right of

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vote, even their registration as voter was rare or almost nil.

No concept of family rights or inheritance,
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 cant 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 cant
be deprived of their legal inheritance rights

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mere as bring TG, Government was ordered to

make laws & rules to protect their rights.
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 cant be
completed. Its 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.

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amernadeemadvocate@hotmail.com