1 Introduction

The terms Khawaja Sira, Hijra , khusras, zenanas and eunuch have been traditionally used to refer to individuals who do not conform to the cisgender identity in Pakistan. In recent years, the terms “third gender”, “transgender” and “transsexual” have also begun to be used. Since the colonial era, they have been victims of social exclusion, public ridicule, discrimination, harassment and violence. For years, transgender people in Pakistan struggled for social acceptance and legal recognition of their gender identity and gender expression. This changed in 2009 following the first Order of the Supreme Court of Pakistan in the Constitutional Petition No. 43 of 2009 on the rights of transgender people. For the first time in its history, the legal system of Pakistan recognised the atypical gender identity of transgender people. Over the next three years, the Supreme Court directed the government to recognise the gender identity of transgender people and take action for the protection of their fundamental rights through a series of Orders under the Constitutional Petition No. 43 of 2009, reported as Dr. Muhammad Aslam Khaki and Others vs. S.S.P. (Operations) Rawalpindi and Others (2013) PLD 188 (SC). These Orders initiated a series of legal reforms over the following decade for the rights of transgender people in Pakistan, culminating in the enactment of the Transgender Persons (Protection of Rights) Act 2018.

This chapter analyses these legal reforms and their impact on the social and legal status of transgender people in light of the history of marginalisation and state failure in the protection of their rights. Following the introduction, Sect. 5.2 defines various terms used throughout the chapter, including the terms Khawaja Sira and Hijra , which represent indigenous development of gender identity for people who do not conform to cisgender identities. The next section provides a historical analysis of the systematic discrimination faced by such individuals, starting with their persecution under colonial rule. The chapter argues that their marginalisation under colonial rule continues to adversely impact transgender people post-independence, representing state failure. Section 5.4 analyses the series of Supreme Court Orders under the Constitutional Petition No. 43 of 2009 and subsequent developments in case law for the protection of transgender rights. However, importantly, the chapter argues that the Orders misunderstood transgender identity, adopting an approach that failed to uphold the ideals of human dignity enshrined in the Constitution. The next section analyses the Transgender Persons (Protection of Rights) Act 2018. The final section, before the conclusion, analyses the primary data collected for this chapter to assess the impact of the legal reforms over the past decade and the immediate impact of the act on the social status and lives of transgender people in Pakistan.

This chapter demonstrates that despite improvements in the rights of transgender people in Pakistan because of the reform efforts, they have not been able to achieve full recognition of their rights and continue to face social stigma, discrimination and violence. The chapter shows that to overcome the historical marginalisation and negative portrayal of transgender people in Pakistan, the government would need to devise comprehensive strategies for the improvement of public perception about transgender people and ensure the proper implementation of the 2018 act.

2 Conceptual and Legal Definitions of Hijra, Khawaja Sira and Transgender

There is no single internationally recognised legal definition of a transgender person (ICJ, 2020, p.7). However, as an umbrella term “transgender” incorporates people who may have a gender identity different from the gender they were assigned at birth and describes a wide range of identities that are perceived as gender-atypical, such as non-binary, genderqueer, genderfluid and transexuals (Commissioner for Human Rights, 2011, pp. 22–23; UN Free & Equal, 2014). Some transgender people may desire medical treatment, including surgery, to align their bodies with their gender identity. However, transgender identity is not dependent on medical procedures or physical appearance.

Transgender identity is different from being intersex. Intersex people are those born with a wide range of natural variations in their sex characteristics that do not fit the typical binary notions of male and female bodies, such as genitals, gonads and chromosome patterns (Commissioner for Human Rights, 2011, p. 22). Being transgender is about a person’s internal knowledge about their gender identity while being intersex relates to biological sex characteristics. As is the case with everyone else, an intersex person may identify as transgender. Because of ambiguous sexual characteristics and the fact that some intersex adults may be infertile, intersex people have often been seen through the framework of a “medical condition”, “disorder” and “disability”. Some intersex advocates have argued that this framework promotes the link between intersex and “abnormality”, leading to stigmatisation and stereotyping that intersex people wish to avoid (Bauer et al., 2020; Cornwall, 2013, 2015; Briffa, 2014; Khetarpal & Singh, 2012; Orentlicher, 2010; Feder & Karkazis, 2008). Intersex people have often been subjected to non-consensual medical intervention to surgically alter their bodies in line with the binary conception of a male or female body.

Like transgender, Khawaja Sira and Hijra are also umbrella terms that encompass people with atypical gender identity and includes intersex people. However, Khawaja Sira and Hijra are broader concepts, encompassing a wider range of identities than “transgender”, and have an older pedigree, dating back to the medieval period of South Asia (F. A. Khan, 2016a, pp. 158–159). The terms represent the unique cultural outlook of the South Asian Society towards individuals who do not fit into the traditional male/female binary of gender identities and biological bodies and individuals whose sexual orientation falls outside the ideals of heterosexuality (Nanda, 1999; Reddy, 2005; S. Khan, 2016b, pp. 219–220).

During the Mughal rule of India, the term Khawaja Sira referred to the eunuch officials of the royal and noble courts (Khan, 2014a, pp. 172–176; Reddy, 2005). They occupied an important social position and served as imperial officers, army generals and harem guards, and held powerful administrative positions. Outside of court titles, the term Hijra represented gender ambiguous people within the society. These included people who had ambiguous sexual characteristics, men who liked to dress as females or adopted female mannerisms, men who had sexual desires for other men and castrated men. Many such castrated men would engage in ritual castration as a more authentic means of expressing their identity as a Hijra (Nanda, 1990, pp. 24–37; Reddy, 2005, pp. 91–96).

Before the colonial period, Khawaja Siras and Hijras were an accepted part of the Indian society, living either as individuals or in social organisations based on guru-chela (master-disciple) relationships, and derived their legitimacy from both Quranic verses and Hinduism (Nanda, 1990, pp. 20–23; S. Khan, 2016b, pp. 219–220).Footnote 1 In many places in India, Hijras played an important role in celebrations, especially as dance performers. They also engaged in public performances and theatre to earn a livelihood. They were thought to be gifted by God with mystic powers, the ability to transition between both sexes, and the ability to bless familial celebrations, including marriages and births (Toppa, 2018; Zahra-Malik, 2017; Azhar, 2017; Nanda, 1986, p. 35; Khan, 2014b, p. 56).

This importance and acceptance began to change following the British colonisation of India, which is discussed in greater detail in the next section. The imposition of Victorian morality as regards gender identity and sexual orientation gradually marginalised Khawaja Siras and Hijras, with the term Hijra becoming pejorative. In recent years in Pakistan, activists and many members from amongst the transgender community have promoted the use of the term Khawaja Sira rather than Hijra because of its pejorative connotations (F.A. Khan, 2019a, para 17).

In contemporary Pakistan, the terms Khawaja Sira and Hijra, like the umbrella term “transgender”, cover individuals whose gender identity does not conform to social norms based on the sex they were assigned at birth. In addition, they also cover all those individuals whose bodies do not fit the typical notions of male and female bodies. Since homosexuality is a crime in Pakistan and is considered a grave sin in Islam, Khawaja Sira communities also provide refuge to homosexual men to express their sexuality and form relationships (Khan, 2014b, pp. 71–74; Nanda, 1990, pp. 9–12). Thus, they encompass such individuals as transsexuals, transvestites, hermaphrodites, eunuchs, homosexuals, khusra (khunsa) and zennana (F.A. Khan, 2019a, para 19; Khan, 2014a, pp. 174–176; Nanda, 1990, p. 19). Khusra is an Urdu word that refers to intersex people. Zennanaa is also an Urdu word that refers to males who are believed to have a feminine spirit, are considered effeminate, display feminine mannerism and may dress up as females.

In recent years, some Khawaja Siras have also begun to identify themselves as transgender because of international exposure and overlap between the two concepts. Although the original Orders by the Supreme Court did not use the word “transgender”, its use has become common practice in government documents since 2010. As “transgender” is the closest English term/identification for Khawaja Siras, it is also used in the 2018 act (Redding, 2019, p. 104). However, it is defined expansively under the 2018 act to include not only individuals with atypical gender identities but also those individuals who are covered by the indigenous terms Khawaja Sira and Hijra. In the following sections of this chapter, the word “transgender” is used to denote this expansive definition. Section 2(n) of the 2018 act gives a multipart definition of a “transgender person”:

‘Transgender person’ is a person who is —

  1. (i)

    intersex (khusra) with mixture of male and female genital features or congenital ambiguities; or

  2. (ii)

    eunuch assigned male at birth, but undergoes genital excision or castration; or

  3. (iii)

    a transgender man, transgender woman, 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 their birth [original emphasis].

The next section discusses the historical discrimination and criminalisation suffered by Khawaja Siras and Hijras under British colonial rule. The section highlights their resulting social and economic exclusion and the failure of the Pakistani state over the next six decades to initiate any legal reforms to protect the rights of transgender.

3 Criminalisation Under Colonial Rule and Its Effects

The acceptance and prestige that Khawaja Siras and Hijras enjoyed in society began to change under British colonial rule (Abbas et al., 2014). The British with their ideas of sexuality and gender norms were incredibly uncomfortable with Hijra bodies and their way of life and imposed their ideals of sexuality to the detriment of Hijras (Loos, 2009, pp. 1315–1316; S. Khan, 2016b, pp. 222–223). British authorities displayed marked hostility towards Hijras , clearly demonstrated in the virulent language used to describe them. In their communications, British officials described Hijras as “immoral”, “most shameless and abominable” and “wretches”, and as individuals who resorted to “disgusting and cruel practices for the purpose of extorting money” (Nanda, 1990, pp. 48–51).

Hijras with their fluid sexuality and gender identity posed a challenge to Victorian-era British morality based on binary distinctions, between male and female, between “normal” heterosexual and “deviant” homosexual relationships (S. Khan, 2016b, pp. 222–223). Hijras eschewed these binaries, but for British officials engaged in the civilising mission, Hijras were seen as men who revelled in sexual “perversity” and engaged in vile practices (Hinchy, 2019). Disregarding the unique gender identity of Hijras , the British viewed Hijras as men who engaged in depraved practices, especially ritual castration, to fulfil their “perverse” desire to have sex with men. Official rhetoric during the 1850s and 1860s portrayed Hijras as inherently ungovernable and disorderly, as individuals who engaged in extensive criminality, sexual immorality and unnatural prostitution (Hinchy, 2019, pp. 27–43). Their traditional practices such as street performances, participation in celebrations, and ritual castration were labelled as a threat to public order and morality, and laws were enacted to combat this menace.

This was achieved through both medical regulation and criminal statutes. By the 1840s, discussion about Hijras had become popular in imperial medical journals. British doctors represented Hijras primarily as male-born castrates, who were symbolic of Indian sexual “perversity” (Hinchey, 2019, p. 30; S. Khan, 2016b, pp. 222–223). Over the ensuing decades, the process of medicalisation by the colonial state, though beneficial in many respects, portrayed Hijras communities through the language of disease, contagion, contamination and filth and as individuals suffering from various forms of disorder (Hinchy, 2019, p. 8; S. Khan, 2016b).Footnote 2 This process of medicalisation categorised Hijra bodies as suffering from gender and sexual disorder, creating an image of Hijras as something less than normal. Post-independence, this language of disorder continues to plague Khawaja Sira and Hijras to their disadvantage and is discussed in greater detail in Sect. 5.4.

Under the Cantonment Act 1864 and Contagious Diseases Act 1868, Hijras suspected of engaging in prostitution were subjected to compulsory registration, medical examinations and confinement (Hinchy, 2019, pp. 15–19, 50–61). The experience of registered Hijras with state officials was underpinned with violence and intimidation. This dynamic continued post-independence, and represents a major state failure. In fact, the immediate reason for the petition leading to the Supreme Court Orders was violence against transgender performers at the hands of police officers (discussed in greater detail in Sect. 5.4).

The criminalisation of Khawaja Sira and Hijras began in 1860, with the passing of the Indian Penal Code 1860 (IPC). Section 290 criminalised public nuisance, and Section 294 criminalised obscene acts and songs in public. Colonial officials began to use these newly created crimes to target Hijras for being dressed in female clothes and for dancing and singing in public places (Hinchy, 2019, pp. 64–65). Victorian sexual morality also resulted in the promulgation of “unnatural offences” under Section 377 of the Penal Code which was also used to target Hijras (Hinchy, 2019, pp. 52–53). Section 377 criminalised acts that were labelled “unnatural”, which included homosexuality, anal intercourse and sex with animals. Hijras were especially susceptible to investigations under Section 377 because British officials considered them men who desired other men. The hostility against Hijras culminated in the passing of The Criminal Tribes Act 1871 and the Dramatic Performance Act 1876.

Using the term “eunuch” to refer to Hijras , the Criminal Tribes Act labelled Hijras as a criminal tribe, branding the entire community as innately criminal, subject to registration, surveillance and restrictions on movements. British hostility towards Hijras can be gauged from the fact that the colonial government devoted an entire part, Part II, of the act to deal with the “eunuch problem”. This went beyond previous efforts under the IPC, which only applied to individual actions, as opposed to group designation, and was dependent on meeting the criminal burden of proof of “beyond reasonable doubt” for conviction. Section 24 empowered the local government to keep records of eunuchs and their property, who are “reasonably suspected” of engaging in castration, kidnapping of children and offenses contrary to Section 377. These records could be used by the colonial authorities to confine hijras to designated areas and regulate their movement and activities. Eschewing the criminal standard of proof made it far easier for the colonial state to regulate, marginalise and criminalise the Hijra communities in India.

Section 24 also defined “eunuch” to include “all persons of the male sex who admit themselves, or on medical inspection clearly appear, to be impotent”, thus labelling individuals suffering from genetic disorders as criminals and making them vulnerable to invasive “medical” exams. Section 26 gave the power to arrest any eunuch without a warrant for dressing like a woman or wearing woman ornaments in public or for being seen wearing these articles from a public place. It also gave the power to arrest any eunuch who took part in any public exhibition, and who danced and played music either in public or for hire at a private venue. This criminalised the traditional means of livelihood of Hijras . Section 29, combined with Section 27, disenfranchised them from several legal rights—including the ability to adopt a male child, the ability to act as a guardian for a minor, the ability to make gifts and the ability to make a will. Section 30 gave sweeping powers to government officers to demand information from Hijras about their movable, immovable and trust properties.

The Dramatic Performance Act 1876 had an indirect effect on Hijras’ ability to earn a living. Section 3 gave the local government the power to prohibit any dramatic performance, play or pantomime in a public place that was of a “scandalous or defamatory nature” or likely to “deprave and corrupt” people. Even though the act did not directly address Hijras , the fact that colonial authorities considered hijras and their activities as depraved and perverse left their livelihood at the mercy of unsympathetic colonial officials.

The general disdain of colonial authorities and these laws profoundly affected the social status of people with atypical gender identities. Gradually, the Indian society began to categorise such individuals as “deviant”, “dirty”, “shameless”, “aggressive”, “criminal” and “sexual objects”. They began to be stereotyped as people who suffer from gender and sexual disorders and who engage in perverted and immoral activities. Transgender people in India and post-independence Pakistan became victims of the worst form of social marginalisation and exclusion. Although the Criminal Tribes Act and the Dramatic Performance Act were eventually repealed, the legal treatment of Khawaja Siras and Hijras under the British colonial rule left a legacy that has continued to impair their legal rights post-independence.

3.1 Post-Independence Situation

Representing a major state failure, this treatment of Khawaja Siras and Hijras continued after the creation of Pakistan. Their lifestyle was stigmatised for being contrary to the teachings of Islam, despite historical acceptance during the Muslim rule in India. They continued to face a steady decline in their social status, excluding them from mainstream economic and political activity. Their unique gender identity and gender expression became a subject of ridicule. Leaving them victims of frequent intimidation, harassment and violence, at the hands of both private citizens and government officials, especially the police (Khan, 2014b, pp. 117–127; Reddy, 2005, pp. 12–16; F.A. Khan, 2019a). They experienced significant hurdles in obtaining National Identity Card (NIC), which is essential for access to voting, passports, driving license, proper housing, education, health, banking and phone services. As a result, for most of them, especially transgender individuals from low-income backgrounds, the only viable way of earning livelihood became begging, dancing at parties and prostitution (Khan, 2014b, pp. 185–194). Such economic and social exclusion created a vicious circle that fed into the society’s negative perception of transgender individuals further eroding their social status. Additionally, transgender individuals remain vulnerable to prosecution under Section 377 of Pakistan Penal Code 1860, which criminalises homosexuality.Footnote 3

Due to the stigma and exclusion faced by people with ambiguous gender and bodies, many intersex children are abandoned by their parents often to be raised by Khawaja Sira and Hijra communities (Habib et al., 2017). Many others run away to these communities to seek refuge because of stigma, violence and sexual abuse (Wijngaarden et al., 2013). Social exclusion from mainstream society has meant that most Khawaja Sira or Hijra continue to live as part of a community that consists of others who do not fit into traditional binary gender identity. These communities have their own culture and traditions, and the members establish relationships in the form of a guru (master/teacher) and chaela (apprentice/follower) (F.A. Khan, 2019a, para 15–16; Khan, 2014b, pp. 90–103; Reddy, 2005, pp. 156–164).

This plight of the transgender community in Pakistan went unnoticed by the executive, the judiciary and wider civil society for more than six decades. It was only after 2009, following the First Order of the Supreme Court in Khaki, that transgender rights became part of the public discourse and led to several legal reforms over the next decade. In the following sections, the chapter analyses these reform efforts starting with the Supreme Court Orders.

4 Recent Developments in Law: The Supreme Court Orders and Subsequent Case Law

Almas Bobi the president of Shemale Rights of Pakistan (an association working for the advancement of the rights of transgender), alongside lawyer Aslam Kahki, filed a petition under Article 184 (3) of the Constitution of Pakistan in the Supreme Court in 2009 against the molestation and widespread humiliation of transgender individuals. The impetus for petition was the brutal attack against transgender individuals performing at a private function in the city of Taxila. They were robbed and sexually assaulted by the police. The petition argued that the state has failed to protect the rights of transgender individuals in Pakistan, leaving them vulnerable to violence at the hands of both private citizens and state officials. The petition asked for the recognition and protection of the rights of transgender people in Pakistan, especially the constitutionally guaranteed right to security (Art 9 of the Constitution), right to human dignity (Art 14), right to property (Art 24 (1)) and right to equality (Art 25). The petition resulted in a series of Orders by the Supreme Court between November 2009 and September 2012, with the final Order issued on 25 September 2012.

In the first Order, delivered on 4 November 2009, the Supreme Court ordered the attorney general of Pakistan to prepare a framework for federal and provincial governments to recognise transgender individuals as respectable citizens of Pakistan and to take steps to ensure that transgender individuals are able to enjoy the right to security, right to dignity and property rights like any other citizen of Pakistan. In the second Order delivered on 20 November 2009, the Supreme Court ruled that families cannot deprive transgender individuals of their legal inheritance by disowning them because of who they are. The Court directed the National Database and Registration Authority (NADRA) to devise a strategy to record the “exact status” of transgender individuals on passports and National Identity Cards, after conducting “medical tests based on hormones”. The Court further ruled that transgender individuals have the right to register their names in the electoral list and have the right to cast a vote when they desire. The Court ordered all state ministries to collaborate and work together to provide respectable social status to transgender individuals.

The first Supreme Court Order recognised the unique gender identity of transgender individuals in Pakistan, but it recognised their unique gender identity as a result of a “gender disorder” and/or “disability”. The Supreme Court stated that transgender individuals have been a target of systemic and pervasive abuse on account of the “gender disorder” of their bodies and required the attorney general to provide maintenance to transgender individuals on account of their “disability”. The Court further opined that a system to facilitate “disabled persons” in finding employment opportunities already exists; therefore, the government can make similar arrangements to provide employment opportunities for transgender individuals and help them find work which “they can perform quite conveniently” (second Order para 3).

In the third Order, dated 23 December 2009, the Court read Article 22(4) of the Constitution of Pakistan, which allows any public authority to make “provision for the advancement of any socially or educationally backward class of citizens” (emphasis added), and Article 25 (the right to equality) and ordered the government to devise a special policy for the benefit of transgender people. To ensure that transgender people have access to educational and vocational opportunities (third Order para 4). As an example, the Court cited the steps taken by the District of Bihar in neighbouring India, where transgender individuals were employed by the government to collect payments from tax defaulters. These individuals were offered employment opportunities as part of a government “rehabilitation scheme” to provide literacy and vocational training to prepare them for respectable regular employment (third Order para 9).

In the final two Orders, the Court analysed policy initiatives taken by the federal and provincial governments in promoting the rights of transgender individuals in Pakistan, since its first Order. In its penultimate Order of 22 March 2011, the Court expressed satisfaction at the new NADRA policy, under which transgender individuals could register their non-binary gender identity as a separate gender category on their NIC. The Court also praised the policy efforts by the Provincial governments of Punjab, Sindh and Khyber Pakhtunkhwa to improve the situation of transgender in their provinces, and urged the government of Balochistan to do the same (Muhammad Aslam Khaki v. SSP (Operation), Rawalpindi (2013) SCMR 187, [3]). The Provincial efforts, lauded by the Supreme Court, included initiatives undertaken to increase enrolment of transgender students in educational institutions, hiring of transgender in certain government projects and devising a policy to increase employment opportunities for them in government departments. The Court expressed some concern regarding the police departments and the social welfare departments. The Court ordered the police departments to undertake greater efforts to improve the treatment of transgender individuals and ordered the Social Welfare departments to ensure better protection for their inheritance rights ((2013) SCMR 187, [5]-[7]). It also ordered the provincial and federal governments to appoint a focal person to bridge the communication gap between transgender individuals and government departments ((2013) SCMR 187, [5]-[7]). In its last Order dated 25 September 2012 (Dr. Muhammad Aslam Khaki and others v. SSP (Operation), Rawalpindi and others (2013) PLD 188 (SC)), the Court expressed satisfaction with the level of progress made at both the provincial and the federal level. Despite being immensely important, the Orders suffered from several shortcomings, which are analysed in the next section. Chief amongst them was the misunderstanding of transgender identity and reliance on the colonial language of “disorder” and “disability”.

4.1 Disability Approach of the Supreme Court Orders

The Orders hold an important place in the history of the transgender struggle in Pakistan. They were essential in highlighting the vulnerable position that transgender people occupy in society and brought the debate surrounding the rights of transgender people to the forefront of the public discourse, laying down the foundations for subsequent legal reforms. They forced the federal and provincial governments to devise policies for the protection of transgender rights, including the first formal recognition of the unique gender identity of transgender people under the legal system in Pakistan. In spite of their significance, the Orders suffered from several problems.

Reminiscent of colonial language, the Court misunderstood transgender identity by perceiving all transgender people through the lens of disorder and disability. The conceptualisation of transgender identity as a “disorder” and a “disability” is neither new nor unique to the Supreme Court of Pakistan. Historically, transgender people have been seen as suffering from some kind of “disorder” or “disability” that can be cured and have been subjected to involuntary medical interventions (Spade, 2003). Transgender advocates have argued that the use of the word “disability” often invokes the image of an illness to be cured and can result in the pathologising of a transgender individual’s expression of gender identity as “not normal” or “deviant” (Chung, 2011; Levi & Klein, 2006, p.75; Spade, 2003). By using the language of disability and ordering the use of medical exams, the Supreme Court was propagating this same approach. This focuses on imposing convenient legal labels on transgender individuals and usurping their autonomy over their bodies and minds, often through involuntary and invasive “medical” exams, regardless of the wishes of transgender individuals. The Court failed to take this opportunity to develop an approach towards transgender individuals that focused on self-identification and freedom to determine one’s own gender identity, an approach that would have been in line with ideals of human dignity enshrined in the Constitution.

The Supreme Court’s approach understood being transgender as a medical condition or a sickness, rather than an expression of gender identity. By offering jobs that transgender people could perform “conveniently”, the Supreme Court categorised them as inherently impaired. Although the experiences of transgender people in the form of stigma, discrimination, prejudice and the creation of a disabling environment may have many similarities with the experience of people with disabilities, being transgender is different from having a physical or mental impairment (Carpenter, 2020; Safer et al., 2016). The Court seemed to be stating that transgender people have reduced mental or physical capacity than cisgender people, which might reduce their ability to perform certain functions, thus the focus on getting them “convenient” jobs. Rather than adopting this approach, the Court should have focused on the fact that the precarious condition of transgender is not the result of something inherent in them, but rather a result of the disabling environment that society creates. They do not need jobs that they can “conveniently” perform; they need access to equal opportunities and a society that does not revile and marginalise them, and treats them with respect and dignity.

Instead, the Court gave the example of the deeply problematic rehabilitation programme from Bihar as a paradigmatic example of jobs transgender can perform “conveniently”. Such a programme perpetuates society’s negative perception of transgender people. The transgender persons in Bihar were offered the work of debt collection precisely because they are “feared and reviled” and debtors would pay them to save themselves from the embarrassment of dealing with transgender individuals (Reuters, 2007). Such tactics by the government, instead of upholding the dignity of transgender individuals, exploits and perpetuates harmful stereotypes about transgender people.

The Court’s direction to NADRA to create a policy on the use of medical exams for assigning gender to transgender individuals was also problematic. The reason for the direction lies in the Sharia Law of inheritance, which applies to Muslims in Pakistan. In Islam, the share of inheritance is different for male and female heirs. Female heirs receive half the share compared to male heirs in the same category. For example, if a person dies leaving a son and a daughter as their only heirs, the estate will be divided into three shares, with two shares going to the son and one share going to the daughter. In Pakistan, before the 2018 act, the traditional understanding of Sharia Law required that all heirs be categorised as either males or females, including those born with ambiguous sexual characteristics. Those born without ambiguous bodies were characterised as either male or female based on their biological sex, regardless of their gender identity. While those born with biological ambiguities were assigned a gender based on physical observation of their bodies after the onset of puberty. Gender was assigned based on the similarity with the “ideal” male or female form (Kugle, 2010, p. 257). This approach perpetuated negation of self-identity and invasion of privacy.

Rather than take this opportunity to mitigate the harmful effects of the traditional practice of assigning gender, the Supreme Court ordered NADRA to continue it, though garbed in the more palatable language of medical exams. Historically, the medicalisation of transgender and transexual individuals has been highly problematic, often used to justify non-consensual medical interventions (Rowlands & Amy, 2018). By ordering the creation of a system under which medical professionals would assign a gender to transgender people, the Court violated the privacy, autonomy and self-determination of transgender people.

Reliance on hormonal medical exams and use of colonial term “eunuch” (misspelled “unix” in some of the published Orders) also demonstrated the Court’s misunderstanding about transgender identity in Pakistan. There is a common misconception in Pakistan that all Khawaja Siras and Hijras are people with ambiguous sexual characteristics, when in reality they only represent a small minority in the community (F.A. Khan, 2019a, para 22). The Court failed to realise that gender identity is different from biological sex characteristics. That people’s gender identity is based on their own internal feelings, not on their bodies, and does not need to be assigned by an external entity. That people can have a gender identity different from their biological sex or a non-binary identity, and this has nothing to do with having ambiguous or unambiguous male or female sex characteristics.

The Court could have utilised this opportunity to state that a person’s gender identity is a matter of self-determination and does not require assignment by the medical profession. As for the matter of inheritance, the Court could have adopted the same approach and held that the share would depend on whatever gender a transgender person identifies with. For those with non-binary identity, the Court could have decided that their inheritance share would be the average of the male and female share. For this, the Court could have drawn support from various pre-modern Muslim scholars who had argued that the Quran allows for the allocation of an average share for Muslims who do not fit in the binary male and female category, that is, half of the male share and half of the female share (Kugle, 2010, pp. 235–268; Gesink, 2018).

As a result of these problems, the Orders failed to meet the ideals of human dignity (Art 14) and equal treatment under the law (Art 25). Despite being aimed at improving the status of transgender people in society, protecting their rights and promoting equality, the Courts approach, based as it was on misunderstanding transgender identity and colonial language of “disorder” and “disability”, was highly problematic. It disregarded their autonomy and perpetuated the common misconceptions about transgender people as “abnormal” individuals who suffer from an illness that needs a cure. The language and the example of “convenient” jobs treated transgender people as inferior to cisgender people with a reduced capacity to work while strengthening negative social perceptions about them. Despite these problems, the Orders led to immediate policy changes for the benefit of transgender people and created a precedent for future judicial enforcement of transgender rights. The subsequent development in the case law is discussed in the next section.

4.2 The Legal Developments After the Supreme Court Orders

Despite the problems with the Supreme Court Orders, the legal recognition of transgender identity finally started a process of legal reform for the recognition and enforcement of the rights of transgender individuals through case law and eventually legislation. One immediate benefit of the original 2009 Order was the policy change by NADRA, which gave transgender people the ability to register their gender as Gender X on various legal forms if they did not wish to identify as either male (Gender M) or female (Gender F). The Supreme Court Orders also opened the doors for transgender individuals to petition courts against discriminatory executive policies.

In 2016, a transgender individual petitioned the Lahore High Court in Mian Asia v Federation of Pakistan through the Secretary Finance and two others, Writ Petition No. 31581 of 2016 (reported as (2018) PLD 54 (LHC)) against a discriminatory executive policy. The petitioner alleged that the authorities had failed to provide him with a new NIC on the expiration of the previous one. The petitioner was denied renewal of his NIC because he was unable to provide the name of his father (he was abandoned at birth), and NADRA refused to accept the name of his guru as a substitute. It was argued before the high court that most transgender people are abandoned at birth and therefore are unable to provide proof of their parentage. This social reality should not be used to deprive them of their right to identity documents. The high court ruled that NADRA cannot deny NIC to a transgender person solely on the ground that they are unable to provide proof of their parentage. During the trial, NADRA changed its policy to accommodate such people.

However, this new NADRA policy remains problematic. It uses the same kind of shortcut that has been developed for orphans, namely picking of random strangers from the NADRA database to be put in the father column of the NIC (NADRA Policy, 2018; The Nation, 2017). Though the high court was concerned with upholding the dignity of transgender people, acceptance of NADRA’s policy detracts from such aim. Requiring a name to be entered in the “Father Column” of a transgender person abandoned at birth fails to recognise such people as full citizens in their own right while perpetuating their trauma of abandonment.

The judgement itself is quite interesting, though it does demonstrate the disconnect between constitutional ideals of human dignity propounded by the courts and the ultimate policy decisions by the executive that often fails to live up to these ideals. It also demonstrates the improvements in judicial understanding about transgender people in the years that followed the landmark, but problematic, Supreme Court Orders. Rejecting the language of “disorder” and “disability”, the high court recognised that gender identity is one of the most fundamental aspects of a person’s life, referring as it does to an individual’s “intrinsic sense of being male, female or transgender” ((2018) PLD 54 (LHC), para 11). The high court further reiterated that a person has a fundamental right to protection from discrimination on the basis of gender identity. The court stated that it was high time for the society to change its mindset towards transgender people and for the law to provide complete protection to them and formally recognise their gender identity. The judgement further stated that transgender people are respectable citizens of this country and as such entitled to the full recognition of their rights, including the right to education, the right to property and the right to live their lives in a dignified and secure manner.

The high court’s approach was an improvement over the original Supreme Court’s order, upholding the principle of human dignity, by emphasising gender identity as something intrinsic rather than a “disability”. However, the court could do nothing about an executive policy that failed to uphold this principle. Judicial review powers of the courts are limited. The court had no jurisdiction to review the normative framework that informed NADRA’s policy, as long as the alleged harm was remedied, namely provision of a new NIC to the applicant. This highlights the limits of judicial reform efforts. Without a corresponding legislative framework that is grounded in the principle of human dignity, courts cannot ensure that the policy option selected by the government will reflect this principle.

A similar failure in judicial reform efforts and the disconnect between the law and social realities can be observed in the 2014 judgement by the Supreme Court of Azad Jammu and Kashmir (AJ&K) (Zafar alias Mumtaz & another v Mst. Sajjad Begum & Others (2015) PLJ 14 (SC AJ&K)). This case concerned a property dispute between the legal heirs of a transgender guru (who had died issueless) and his chelas (disciples) The chelas argued that the deceased’s property should go to them since that is the prevailing customary tradition amongst transgender individuals in Pakistan—the property of the guru devolves to the chelas, not to their legal heirs. This was opposed by the legal heirs on the ground that since the deceased was a Muslim, his property should be distributed based on Sharia Law and not on customs and traditions. The AJ&K Court agreed with the legal heirs and ruled that in AJ&K Sharia Law prevails over all customs and traditions, and hence the property of the deceased will devolve to the legal heirs and not to his disciples. For the court, it was irrelevant that the property in question was earned by the guru during his lifetime and was not ancestral property. It was also irrelevant that the guru had been abandoned by his family, who were now demanding a share in his estate. The plaintiff’s application to apply established customs of the transgender community was denied by the court. Although AJ&K judgements are not binding on Pakistani courts, being only of persuasive authority, the same approach is likely to be adopted by the Pakistani courts. This is because of Article 227 of the Constitution of Pakistan under which all laws in Pakistan must be compatible with Islamic principles.

The decision by the AJ&K Court failed to take into account the social reality of transgender people, which makes it very difficult for most of them to inherit under Sharia Law. Inheritance under Sharia Law is based on biological relationships and marriage. For transgender people, this represents a problematic hurdle. They are shunned by their families and society. They are often abandoned at a young age and have no knowledge about their biological families. This means that in practice most transgender people will never inherit property from their biological families. The customary tradition under which chelas inherit from their gurus developed precisely because of this reason. By ignoring social reality and striking down the customary rule, the court created a situation where many transgender people will be unable to benefit from the right of inheritance, while family members who abandoned transgender individuals in life could claim their property after their death.

Because of the problematic approach adopted by the Supreme Court of Pakistan and the inherent limitations of judicial reform efforts, there remained a need for comprehensive legislative reform in the area. This was accomplished by the promulgation of the Transgender Persons (Protection of Rights) Act 2018, which is analysed in the next section.

5 The Transgender Persons (Protection of Rights) Act 2018

The Supreme Court Orders were successful in highlighting the bleak state of transgender rights and generating momentum for reforms. This ultimately led to the enactment of the Transgender Persons (Protection of Rights) Act in 2018 by the National Assembly of Pakistan. Based on contemporary understanding of transgender people and gender identity, the act addresses many shortcomings in the jurisprudence developed by the courts. If implemented properly, it also provides a framework for the creation of a comprehensive rights regime for transgender people in Pakistan. Section 2(f) defines “gender identity” as the “innermost and individual sense of self as male, female or a blend of both or neither that can correspond or not to the sex assigned at birth”, thus basing it entirely on one’s choice. Section 2(e) defines “gender expression” as a “person’s presentation of his gender identity and its perception by others”. Similarly, Section 2(n), reproduced above, gives an expansive definition of “transgender person” to include all types of gender identities, in line with the unique cultural outlook of South Asian Societies. Section 3 of the act makes provisions for the recognition of the “self-perceived” gender identity of individuals in all relevant government documents. Additionally, Section 3(4) gives transgender people the power to apply for the modification of their existing identity documents to make them consistent with their chosen gender identity.

Section 4 prohibits discrimination against transgender individuals and contains a compressive list of nine subsections detailing the type of conduct prohibited, including discrimination in educational institutions, employment opportunities, healthcare services, access to public goods and services, public transport, use and ownership of movable or immovable property, holding of a public or private office, and accessing government or private establishments. Section 5 prohibits harassment against transgender individuals at home and in public, due to their sex or gender identity. Harassment has been expansively defined in Section 2(h) to include “sexual, physical, mental and psychological harassment”, including conduct that may sexually demean, or conduct that may interfere with living, mobility, or work of a transgender individual, or may create a “hostile or offensive work or living environment”.

Section 6 imposes obligations on the government to ensure full participation of transgender individuals in society and requires the government to establish “protection centres” and “safe houses”, which would provide protection, rehabilitation, medical, counselling and educational services to transgender individuals, and to establish separate prison cells for them. It requires the government to launch training campaigns for government officials, law enforcement agencies and medical personal to improve the treatment of transgender people by government employees. It also opens up the possibility of launching public awareness campaigns to change the attitude of society towards transgender people. Furthermore, it imposes an obligation to launch financial and loan schemes to support entrepreneurship opportunities for transgender individuals, and any other measure that may be necessary to achieve the objectives of the act.

Section 7 reforms the law of inheritance and, to some extent, overcomes the shortcomings present in the judgement of the AJ&K Court. It allows inheritance share to be based on the self-declared gender on the NIC. In case a person does not declare themselves either as a male or a female, then Section 7, adopting the approach advocated by premodern Muslim scholars, gives them an inheritance share that is the average of the male and the female share. For heirs that are legal minors, and cannot declare their gender till they reach adulthood, their inheritance share would be based on the gender determined by a medical officer based on their predominant physical features. Section 3 makes it clear that this determination by the medical officer will not affect the individual’s later declaration regarding their gender identity on reaching adulthood.

Despite these improvements in inheritance law, the act continues to perpetuate state failure by remaining silent on the legal validity of the customary tradition under which chelas inherit from their gurus. The act does not address the social reality—discussed above—which makes it impossible for many transgender people to inherit from their biological families. Thus, any attempt by gurus to leave their property to their chelas remains open to challenge by biological heirs of the guru, which under Sharia Law can include any male agnates of the guru, no matter how removed.

Sections 8 to 15 provide greater detail on the obligations imposed in Section 6. It imposes an obligation on the government to take steps to protect the right to education, employment, vote, holding a public office, assembly and access to public places, including places of religion, and property of transgender individuals. Section 10 (right to vote) further clarifies that access to polling stations for transgender would be based on gender identified on their NIC. These sections reiterate the duty of the government to provide proper funding and training to ensure that these rights are realised in practice. Section 16 reiterates that the fundamental constitutional rights guaranteed in Part II of Chapter I of the Constitution “shall be available unequivocally for every transgender person”.

Section 17 provides imprisonment of up to six months and a fine of 50,000 rupees for any person who “employs, compels or uses” any transgender individual for begging. Section 18 provides enforcement mechanisms to protect transgender rights. It states that in addition to the remedies available under the Constitution, the Pakistan Penal Code 1860, the Code of Criminal Procedure 1898 and the Code of Civil Procedure 1908, transgender individuals can also complain directly to the Federal Ombudsman, National Commission for Status of Women and National Commission of Human Rights if their rights under the act are being denied.

One immediate positive impact of the act was that 13 transgender candidates ran for office in the 2018 general elections (Barker, 2018; Shah, 2018b). Nevertheless, the act suffers from several shortcomings. Firstly, the language used in the act is problematic. It misses the opportunity to sensitise the public about proper pronouns for transgender individuals. The act uses pronouns “him or her” to refer to transgender individuals, rather than using the gender-neutral “they”.

Additionally, the act missed an opportunity to regulate gender confirmation surgery. At present, there is no Pakistani law on the matter. The act briefly touches on “necessary medical and psychological gender corrective treatment” in Section 12(c) but lays down no comprehensive and explicit right to gender confirmation surgery. Although in Pakistan there exists some ambiguity concerning the compatibility of gender confirmation surgery with Islamic principles, most Muslim scholars believe that Sharia Law allows such surgeries, which is legally practised in several Muslim countries, such as Iran, Syria and Egypt (Kugle, 2010, pp. 260–265; Sahqani et al., 2019). By explicitly recognising the right to seek medical help in law, the government can protect transgender individuals from the discretion of doctors and hospitals. Taking into account the general sentiments of the society towards transgender individuals and the ambiguity in Islamic rules on the matter, the absence of proper regulations on the availability of such surgery may leave many transgender individuals without access to proper medical facilities for gender confirmation surgeries (Shah, 2018a; Sahqani et al., 2019). For many, this would mean the continuation of the unsafe tradition, under which chelas undergo risky castrations performed by their gurus (Sahqani et al., 2019). Though the law is aimed at improving the status of transgender individuals in Pakistan, the lack of explicit recognition of the right to gender confirmation surgery leaves many transgender people at risk of discriminatory medical practices and risky traditions.

Similarly, though, the act imposes an obligation on the government to create a comprehensive framework for the betterment and protection of transgender people, especially in sections 4, 6 and 8 to15, it provides no detailed roadmap for such improvements, neither does it lay any mechanisms to evaluate the implementation of such improvements. It leaves it open to the government to devise policies for achieving these objectives. Unfortunately, in Pakistan, this is where most reform efforts flounder. The National and Provincial Assemblies in Pakistan regularly enact comprehensive statutes aimed at addressing various problems that the society is facing without much success, because of unsatisfactory implementation of the laws by the government. In addition to imposing an obligation on the government generally to improve the situation of transgender people in Pakistan, the act should have given the responsibility of the implementation to a new government department or office. Without a dedicated department/office, implementation is likely to be slow and uneven keeping in mind the already-heavy workload on existing government offices. Similarly, the act should have provided for a comprehensive policy for positive discrimination and affirmative action. This could have included employment quotas and financial uplifting schemes for transgender people as is the case with other vulnerable groups in Pakistan.

Notwithstanding these shortcomings, following the enactment of the act, several banks and microfinance institutions created low or no interest rate loan schemes for transgender individuals as a means for their economic betterment (State Bank of Pakistan, 2019; The News, 2019). Additionally, the Punjab Social Protection Authority created a comprehensive policy, the Transgender Persons Welfare Policy (2018), to address the needs of transgender individuals in Punjab. The actual implementation of the policy remains problematic, with little or no data available to assess its impact. Additionally, the Punjab Welfare Policy is only applicable in Punjab, with no comparable policy developed by other provinces.

The 2018 act puts Pakistan at the forefront in the protection of the rights of transgender people in the world, at least on paper. The framework envisaged in the act, despite the shortcomings identified above, has the potential to provide comprehensive protection to the rights of transgender people in Pakistan and uplift the community to a position where they can enjoy a life of dignity, social inclusion and equality as promised by the Constitution. It remains to be seen whether the government will be able to achieve the ideals. Based on the treatment of transgender people post-2018, and interviews of transgender people conducted by the authors in 2019, it is likely that the state would fail to achieve most of these ideals. The next section analyses the success of the decade-long reform efforts based on the data collected through the interviews.

6 Listening to the Transgender Individuals in Pakistan

A decade after the first Supreme Court Order and almost a year after the enactment of the 2018 act, in-depth interviews with some transgender individuals were conducted in Lahore. These interviews were conducted to assess the impact and effectiveness of the policies designed to improve the status of transgender individuals in Pakistan. A total of 79 transgender individuals were interviewed, with extreme care being taken to protect the privacy of the interviewees. Interviewers were under strict instructions to abstain from asking and recording the names of interviewees and from asking interviewees to sign anything. Interviewees were informed that their identity will not be disclosed, and no lasting records of the names were maintained to ensure privacy. Consent was orally taken in the preferred language of the interviewee. The interviewee’s preference as to the form of address was recorded first. The primary research conducted follows the Ethics Policy at the University of Management and Technology (UMT).

The collected data has geographical limitations; it was only collected in Lahore. Lahore is the provincial capital of Punjab, the largest and richest province in Pakistan. It is the second-largest city in the country and acts as Pakistan’s cultural centre, with a strong presence of an active civil society and NGOs working in the field of transgender rights. Legal reforms have the greatest chance of positive impact in Lahore. Interviewees were selected at random. Some interviewees were affiliated with Khawaja Sira Foundation, Akhuwat Foundation and Saima Foundation. These foundations are some of the leading organisations working towards the advancement of the rights of transgender people in Pakistan. Interviewees affiliated with, working with or under the care of the said foundations were approached at the offices of the foundations. Transgender individuals working on major streets/intersections in Lahore, not associated with any of these foundations, were also interviewed. The interviews were conducted based on a structured questionnaire but emphasised listening to the interviewees.

The first few questions were aimed at understanding the living situation of transgender people and their relationship with their biological families. Only 14% of the respondents lived with their biological families. The majority of the respondents lived with their gurus and other transgender individuals, and 16% lived on their own. About half of the respondents stated they were treated fairly by their families; however, the remaining half of the respondents reported bad and unfair treatment from their families, stating that they had no contact with their respective families.

The second part focused on their interactions with public officials and the ease of accessing government services. The findings were alarming. Twenty-three respondents stated that applying for and getting the NIC was easy; however, 20 reported that they found the process difficult. The difficulties they faced were primarily due to the hostile attitude of the NADRA officials. Interestingly, nine reported that they had no NIC and had no need for one. Considering the importance of the NIC for social and economic life in Pakistan, the responses demonstrate the extent of social exclusion experienced by certain transgender people and their fatalistic attitude about their place in society.

Similarly, 50% of the respondents stated that they are unable to get assistance from government officials and are treated harshly by them. More than half reported bad treatment from the police officials, with approximately two-thirds stating that they were harassed by police officials, and do not feel safe in asking them for help. Three respondents reported being sexually assaulted by police.

The next part focused on society’s attitude towards transgender people, access to public spaces and the right to security. Social attitude towards transgender people remains problematic. Ninety per cent of the respondents stated that they had experienced hooting and harassment in public spaces. Two-thirds reported feeling unsafe moving in the society and stated that they had faced repeated harassment in public places. Half of the respondents categorically reported that society neither respects them nor treats them with dignity. Half of the respondents reported that they had been physically assaulted in public places, and half reported they had been sexually assaulted.

The next part focused on assessing their access to different services. This included healthcare, housing, banking, employment opportunities and religion. The situation was slightly better in access to healthcare and banking services. Most reported being treated with respect by healthcare professionals; however, 14% still reported being treated with disrespect in hospitals. Very few respondents faced antagonism from bank staff; however, an overwhelming majority faced difficulty in opening an account due to their inability to provide proper documentation and their low-income status. As a result, only 14% of the respondents had a bank account.

Two-thirds of the respondents found the process of renting and owning property extremely difficult. Half of the respondents believed that they would face discrimination in renting and buying property. The situation relating to economic opportunities remains grim. Sixteen per cent of the respondents stated that they had a bad experience when they applied for a job, and more than half believed they would be unfairly treated if they were to apply for a job. The majority of the respondents earned their livelihood through begging and dancing.

Concerning freedom of religion and access to religious places and services, 76% of the respondents reported that they were able to easily access religious places and were treated fairly by religious leaders. However, one-third stated that they faced difficulty in getting religious leaders to perform ceremonies for them.

As regards inheritance rights, despite no legal recognition of the customary tradition of chelas inheriting from their gurus, the majority of the respondents, about 67% believed that they would be entitled to their gurus’ property. About 40% were sure they would not inherit anything from their parents, while 27% were not sure whether they would inherit anything from their parents. The rest of the respondents believed that they would receive an inheritance from their parents. Inheritance rights continue to be a significant area of state failure.

The last part of the interview questions focused on their awareness about the law and reforms introduced for the rights of transgender people. More than half of the respondents were not aware of the 2018 act. Half of the respondents did not know how to enforce their legal rights and believed that the government and the courts would not be able to protect their rights. Two-thirds of the respondents believed that there has been an improvement in the status of transgender individuals over the past ten years. Worryingly, 30% believed that there has been no improvement.

The data collected paints a depressing picture of transgender rights in Pakistan. Despite legal recognition of various rights in the last decade, including the right to gender identity, inheritance, non-discrimination and guaranteed access to government services, their experience continues to be shaped by pernicious social perceptions surrounding transgender people, which can be traced back to the colonial era. They continue to be treated with disrespect and hostility by both the general public and government officials, and social and economic exclusion remains the norm. Access to public places and public services remains limited. Their right to life and security remains severely curtailed, and they continue to face a serious risk of harassment and violence.

If the experience of transgender people in a major city like Lahore is so grim, the situation in other areas of the country will be far worse. This is borne out in various reports on violence against transgender in other cities. For example, since 2015 there have been 479 attacks reported against transgender people in Khyber Pakhtunkhwa province. At least 65 have been killed there since 2015 (Human Rights Watch, 2021; M.I. Khan, 2019b). The threat faced by transgender people from the police remains the most serious state failure. Our data and other reports amply demonstrate the complicity of police officials in violence against transgender persons. Many police officials are involved in violence or harassment, while many others fail to properly investigate reports of violence or provide adequate security to transgender people in need.

The data demonstrates the tragic irony of reform efforts of the past decade. Government officials, who carry the responsibility of implementing legal reforms, remain the most problematic group. The majority of transgender people are distrustful and afraid of government officials and continue to face hostility and harassment from them. The law relating to the protection of transgender people exemplifies one of the major problems within the Pakistani legal system. Repeated enactment of various rights protection legislation fails as a result of abysmal implementation by the government. Those who have the resources can go to court to have their rights protected, but for the vast majority, protection remains limited.

The major failure in the reform efforts has been the inability to change the attitude of society towards transgender people. More than a decade ago the Supreme Court ruled that to improve the status of transgender people in Pakistan, the government would need to create public awareness about the plight of transgender people and improve their treatment. This has been reiterated in Section 6 of the 2018 act, which imposes an obligation on the government to launch sensitisation and awareness campaigns for government officials and the general public. The federal and provincial governments have failed in this regard. Even piecemeal training provided to government officials has largely failed, as demonstrated by the experiences of interviewees. Though NGOs like Akhuwat, Khawaja Sira Society and Be Ghar Foundation, have continued their efforts in advancing transgender rights, without adequate government support, changing social perception about transgender people continues to be extremely slow and difficult (Akhuwat, 2020). The authors could not find evidence of a single government-sponsored campaign, on either the national print or the electronic media, to create awareness about transgender rights since 2018.

7 Conclusion

The Supreme Court Orders represented the first success of the long and arduous activism for the right of transgender people in Pakistan. The Orders provided legal recognition to transgender identity, led to some positive changes in government policy and opened the door for future transgender applicants to approach the courts. They also had a profound effect on the public discourse surrounding the rights of transgender people. They brought transgender issues to the public limelight, paving the way for future legal reforms and opening the door for possible positive change in society’s perception about Khawaja Siras and Hijras . However, the Supreme Court Orders displayed several basic misunderstandings about transgender identity and relied on problematic colonial language. The Orders fell short of the ideals of human dignity and human rights, especially in the use of language that focused on “disorder”, “disability” and the ability of transgender people to do “certain jobs conveniently”.

The momentum generated by the Orders also made the enactment of the 2018 act possible, which remedied many problems with the Supreme Court Orders. These reform efforts had a positive impact, which can be gleaned from the participation of transgender candidates in the 2018 general elections and the belief amongst the majority of the interviewees that there have been improvements over the past decade. However, these improvements have been quite small, and many problems and failures continue to persist. There is a need to reform the law of inheritance and to design an effective regulation on sex-change procedures, a need for active efforts in changing social perception about transgender people, and improvements in their treatment by government officials, especially the police. There is a dire need for consistent efforts on part of the federal and provincial governments for ensuring proper implementation of these reforms, which have the potential to gradually improve the social and economic status of transgender people in Pakistan. Otherwise, transgender people in Pakistan will continue to face stigma, discrimination, harassment and violence, and the state will continue to fail one of its most vulnerable and marginalised groups.