Transgenders cannot be deprived of CNIC: court

LAHORE: British colonial era annihilated dignity of transgender community in society as they were ridiculed after introduction of a controversial law which declared them criminals, forcing eunuchs to begging and adopting other objectionable professions.

“It is high time to change mindset of society and to realise that a person of diverse gender identity shall also enjoy legal capacity in all aspects of life. The transgenders/eunuchs are as respectable and dignified citizens of this country as any other person and they are also entitled to all fundamental rights including right of education, property and right of life which include quality of life and livelihood.

In a detailed judgment on the matter of non-issuance of CNIC to transgenders with unknown parentage, Justice Abid Aziz Sheikh ruled that transgender community has always been raising voices for their gender identity and being citizens of this country are also entitled to same respect, dignity and fundamental rights as are available to the other segments of society. In case any transgender/eunuch is not able to provide name of his father, being abandoned by his family, it cannot be a sole ground not to issue him CNIC and to deprive him from his fundamental right of being a citizen of this country.

“Gender identity is one of the most fundamental aspects of life which refer to a person intrinsic sense of being male, female or transgender. Everyone is entitled to enjoy all human rights without discrimination on the basis of gender identity. Everyone has the right to recognition everywhere as a person before the law. This is high time to change mindset of society and to realise that a person of diverse gender identity shall also enjoy legal capacity in all aspects of life.

The transgenders/eunuchs are as respectable and dignified citizens of this country as any other person and they are also entitled to all fundamental rights including right to education, property and right to life which include quality of life and livelihood. They cannot be deprived of their rights including right to obtain CNIC or citizenship for mere reason that they are transgenders/eunuchs and do not know the whereabouts of their parents, without any fault of their own.

The public functionaries and policymakers are expected to be more sensitive towards restoring dignity of transgender community rather adding to their existing plight.

It is known fact that society often ridicules and sidelines transgender community in all walks of life. This unwilling mindset of society has historical background. At the time of British Colonial rule, the Criminal Tribes Act, 1871 was introduced to declare eunuchs (transgenders) a criminal tribe. The Act provided for the registration, surveillance and control of certain criminal tribes and eunuchs and had penalised eunuchs, who were registered, and appeared to be dressed or ornamented like a woman, in a public street or place as well as who danced or played music in a public place.

Such persons also could be arrested without warrant and sentenced to imprisonment up to two years or fine or both. Under the Act, the local government had to register the names and residence of all eunuchs residing in that area as well as their properties, who were reasonably suspected of kidnapping or castrating children, or of committing offences under Section 377(unnatural lust) of the Indian Penal Code (IPC), or of abetting the commission of any of the said offences.

Act also denuded the registered eunuchs of their civil rights by prohibiting them from acting as guardians to minors, from making a gift deed or a will, or from adopting a son, the judgment said.

The court ruled: “The Act was not only to attack the dignity of transgender community, degrading them in social echelons but also to eventually force them to adopt begging and other questionable professions.

After British Colonial rule, the Act was repealed in 1949, however, the damage done to transgenders remained irreparable. The transgenders lost social respect and various stereo types have been built to humiliate and discount the transgenders community.

Finally in Year 2009, the Supreme Court of Pakistan took up the matter and directions were passed from time to time to recognise the dignity of transgenders and declaring them third gender entitled to equal protection under Article 25 of the Constitution.

Pursuant to Justice Abid Aziz Sheikh’s directions, Nadra finally framed policy to issue CNIC to the transgenders/eunuchs with unknown parentage. Under the police, eunuchs with known Parents: Cases may be dealt as per Registration Policy as it covers processing of CNICs of eunuchs with known Biological Parentage. Eunuchs with Unknown Parentage: i. As a first step, already registered eunuchs whosever are willing shall get themselves registered as “Guru” in Nadra database. ii. Guru registration will be carried out at HQ Nadra through a module already being used for registration of Orphanages. iii. Procedure for Guru Registration: (a) Copy of CNIC alongwith an affidavit of Rs.20/- attested by Magistrate Class I shall be submitted by the individual. (b) After scrutiny, RHO will forward the said documents to HQ Nadra by registration of Guru. iv. Just like orphans with unknown parentage, CNIC of eunuchs with unknown parentage will be processed by selecting random parents name from database. Registered Guru will be the head of applicant (Eunuch) and will give Biometric verification. Biometric witness of another person (any valid CNIC holder) also be obtained. v. Vigilance Department will conduct post-verification. vi. Post Verification data analysis will be carried out after every six month. Final decision shall be made after one year experience and result revealed by post verification and data analysis. 2. For Media & Communication Department Only: Please launch awareness campaign for Guru registration through media.

Under the aforesaid policy, the transgenders/eunuchs with unknown parentage will be provided CNIC after fulfilling the procedure prescribed under the policy. The counsel for the petitioner submits that under the policy, the grievance of the petitioner has been redressed and he has already been issued CNIC.

The court also ordered to send the copy of this judgment alongwith copy of policy to all concerned including the federal as well as provincial secretary law to circulate it widely within the entire country so as to ensure that maximum members of transgenders community be benefited. Chairman Pempra would also ensure that clause 2 of the policy for launching awareness campaign be implemented through all modes of communication.

Mian Asia, a transgender, had filed a writ petition pleading he was issued a computerised national identification card (CNIC) in 2004 with parental name of Muhammad Yousaf (guru), who died in 2005. He said his identity card expired in 2011 but Nadra officials refused to renew his card with the name of his late guru as parent despite presenting death certificate of his “Guru”.