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S Asia Justice For Eunuchs - A Quest For Dignity


1947-2014 (Archived)
Jun 17, 2004

In the wake of the much criticised Mukhtar Mai decision handed down a couple of weeks ago, a significant judgment by the Supreme Court of Pakistan has sadly gone unnoticed; on April 25, the court, headed by Chief Justice Iftikhar Chaudhury, directed NADRA to issue national identity cards to transgenders (commonly known as hijras in South Asia) with a specific gender category of ‘khwaja sira’ instead of the rather inappropriate ‘male’ and ‘female’.

Despite centuries of existence in the subcontinent, eunuchs are subject to discrimination at every level of not only Pakistani, but much of South Asian society. They are ostracised, forced to live in segregated ghettos and are often reduced to begging, prostitution and derogatory entertainment to earn a living. A lack of understanding of their identity and the failure of the education system to inform people of their plight, has ensured that this vicious cycle of discrimination has continued unabated.

Fortunately however, the Supreme Court has quietly been instigating a subtle but important human rights revolution for the eunuch community over the past couple of years: for example, in different decisions, it has ordered the police to stop harassing them and prompted the government to ensure that they are recognised as a third sex on surveys. As such, the decision given last week is simply a continuation of a policy of creative jurisprudence that merits praise for at least a few different reasons.

Firstly, recognition of a third gender for these eunuchs is the first step towards providing them with individual identity and dignity that is necessary for them to be able to maximise their social and economic worth in society. This symbolic autonomy could, in the long term, translate not only into financial and social gain for them but for society generally by allowing them to engage in more productive forms of employment through gradual de-stigmatisation. Also, by providing them with absolutely basic human rights in the form of sexual identity, the court has demonstrated that their status is not a source of embarrassment, but is in fact very much worthy of official recognition – rather than merge them into a category they did not belong to, they have been given a space of their own.

Second, the decision is evidence that the Supreme Court we so passionately rested our hopes on a few years back is actually beginning to promote the kind of progressive social change that we as scattered individuals may be powerless or incapable of instigating. Last, but definitely not least, this decision goes a long way towards building a positive international narrative of Pakistan as a society much more capable of endogenous change than is usually assumed; I was actually quite surprised that this order has not been reported with any great fervor in the local or foreign media. In fact, when I spoke to other foreign lawyers, they were quite taken aback that such a progressive decision could have come from Pakistani courts; this is exactly the kind of progressive change we need to market not just within Pakistan but also to the foreign media that often projects Pakistan as a state incapable of contributing to the development of human rights jurisprudence.

While the importance and fairness of the decision by the Supreme Court cannot be overstated, we should not forget to also applaud the eunuch community for having the political courage and legal confidence to actually bring this emotionally difficult challenge to the Supreme Court. Justice, like any other public good, will only be supplied if adequate demand is created. In a state where neither parliament nor the executive has a brilliant track record of protecting the majority (let alone minorities), responsibility naturally falls to the court and to private groups to act, and the eunuchs have shown that even with limited resources, minorities can successfully lobby for their rights. The decision should therefore serve as a signal to human rights activists and minorities that if the eunuchs, who despite having no political or economic clout, were able to efficiently organise to obtain their collective rights, then perhaps the time is ripe for more aggressive human rights actions to be brought in a Supreme Court that is willing to accept a more pro-active and progressive agenda in promoting fundamental rights.

Of course much more change is needed. While we cannot expect that the decision of the court will bring about an overnight social change in terms of public perceptions or that every decision will be a progressive one, each and every incremental step that forces the court to answer difficult questions about human rights nudges us in the right direction – even an adverse decision, while tragic, is still publicity. This decision is also a reminder to us that the best route for seeking better human rights in Pakistan is not necessarily to lobby foreign NGOs and complain to cultural outsiders but to seek to empower and promote judicial autonomy as a means to bolstering socio-economic change. The Indian Supreme Court already has a very strong reputation for being an activist in the field of human rights, and political and social freedoms and so, our Supreme Court should not be fearful of stepping in to fill this lacuna of justice in Pakistan. If anything, Pakistan’s international socio-legal narrative needs a significant and forceful overhaul and the Supreme Court as a strong and centralized institution commanding significant social capital can provide exactly this.

Dawood Ahmed is a lawyer based in Chicago/London with particular interests in the economic analysis of law, Islamic and international law. He can be contacted via email on dawood.ahmed@mansfield.oxon.org