LGBT rights in Pakistan

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LGBT rights in Pakistan Pakistan
Pakistan
Same-sex sexual activity legal? Illegal
Penalty:
fine or 2 to less than 10 years of imprisonment for sexual orientation; varies by region and is rarely enforced)[1][2][3]
Gender identity/expression laws to protect Transgender and Transexual persons in all of Pakistan
Military service no
Discrimination protections only for transgender, transexual, and cross dresser
Family rights
Recognition of
relationships
Same-sex relationships considered taboo
Adoption adoption not allowed by same-sex couple; transgender persons allowed to adopt

Being open about sexual orientation, such as lesbian, gay, bisexual person is a considered a taboo in many parts of Pakistan. However, in large cities like Lahore, Karachi, Islamabad, and even Peshawar there is a large community of LGBT. There is a growing number of individuals – especially those born to parents, who "even if they have not been educated abroad, are usually university graduates" and have some sort of understanding about evolution, sexuality, or both – who are coming out to their families and friends, as well as introducing them to their same-sex partner.[4]

Pakistan's law criminalizing consensual same-sex dates back to October 6, 1860 under the colonial rule of British Raj. Written by Lord Macaulay, the Indian Penal Code 1860 (as it was named at the time) made same-sex sexual acts illegal under the Anglo-Saxon law of "Unnatural Offences", known as carnal knowledge. After Pakistan received independence in 1947 the parliament decided to continue using the same penal code just with a new title Pakistan Penal Code (Act XLV of 1860), PPC. Within the PPC, "Unnatural Offences" Article 377 states: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment [...] for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine".[5]

Disapproval of LGBT lifestyle also stems from religious and patriarchal beliefs. While sex between homosexual partners is extremely accessible with it being a social norm to walk holding hands, walk with having arms around the waist, kissing on the face, and to cuddle with the same gender; social stigma, disapproval, and discrimination of homosexuality makes it difficult for the LGBT community to have steady relationships.[6] The LGBT community is able to socialize, organize, date and even live together as couples, but usually discreetly.[7] As a result of increasing liberalisation trends and increasing globalisation and social tolerance, public gay parties in Pakistan have been thriving for a number of years.[8] Pakistan does not have civil rights laws to prohibit discrimination or harassment on the basis of real or perceived sexual orientation. Same-sex marriages and civil unions in Pakistan have no legal recognition. The LGBT community in Pakistan has not formally begun to campaign for LGBT-rights, but there is growing tolerance for social gatherings of gay men in the cities. In what was seen as a historic move in 2009, the Supreme Court of Pakistan ruled in favor of the civil rights of transsexual citizens.[8]

LGBT legal Issues[edit]

Pakistani law is a mixture of both Anglo-Saxon colonial law as well as Islamic law, both which proscribe criminal penalties for same-sex sexual acts. The Pakistan Penal Code of 1860, originally developed under colonialism, punishes sodomy with a possible prison sentence and has other provisions that impact the human rights of LGBT Pakistanis, under the guise of protecting public morality and order. Yet, the more likely situation for gay and bisexual men is sporadic police blackmail, harassment, fines, and jail sentences[9]

Pakistan Constitution[edit]

The Pakistan Constitution does not explicitly make mention of sexual orientation or gender identity. It does contain certain provisions that may impact the constitutional rights of LGBT Pakistani citizens.[10]

  • Part II 37. The government pledges to promote Islamic values among its Muslim citizens, to protect marriage and the family and to oppose obscenity.
  • Part II 38. The government will guarantee all of citizens education, job training, and health care services, including social insurance.
  • Part IX 227. Islam is the official state religion, and all laws, rules, regulations and other such legislation must be compatible with Islam, as defined by a government appointed Islamic council.

Pakistan Penal Code 1860[edit]

  • Article 141 – An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is...to commit any mischief or criminal trespass, or other offense.
  • Article 153 – Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise, induce or attempts to induce any student, or any class of students, or any institution interested in or connected with students, to take part in any political activity which disturbs or undermines, or is likely disturb or undermine, the public order shall be punished with imprisonment which may extend to two years or – with fine or with both.
  • Article 268 – A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
  • Article 269 – Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
  • Article 270 – Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
  • Article 290 – Whoever commits a public nuisance in any case not otherwise punishable by this Code, shall be punished with fine which may extend to six hundred rupees.
  • Article 292 – Prohibits the sale, distribution, exhibition, ownership or importation of any, "obscene" books, pamphlets, or other literature or images.
  • Article 294 – Prohibits any "obscene" public acts, songs, music or poems.
  • Article 371A – Whoever sells, lets to hire, or otherwise disposes of any person with intent that such a person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person shall at any time be employed or used for any such purpose, shall be punished with imprisonment which may extend to twenty-five years, and shall also be liable to fine.
  • Article 371B – When a female is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution. For the purposes of this section and section 371B, "illicit intercourse" means sexual intercourse between persons not united by marriage.
  • Article 377 – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine. Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.
  • Article 496 – Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.

Abuse issues[edit]

Several incidents of pederasty by clerics towards young boys at religious schools (madrasahs) have been reported.[11] It is difficult for the victims to get justice in these situations because the public does not want to believe that a cleric could engage in pederastry and the victims, young boys who are forced to be the receptive partner in anal intercourse, are often perceived as being gay and are thus subjected to social hostility and even legal sanctions.[12]

A Kahuta based Pakistani cleric stated on 31 December 2007 that every homosexual person should be killed to stop this sudden growth towards sexual awareness suggesting either beheading or stoning the involved.[13]

While the LGBT community is not ready to tackle such abuse and prejudices, a growing number of gay and bisexual men are creating social networks.[14]

Metropolitan areas like Lahore and Karachi have seen many gay men, mostly of the middle and upper classes, enjoying themselves at parties aimed at proclaiming their gay pride.[14][15] These usually involve large numbers of men dancing together in huge isolated rooms modeled into a discothèque environment and making out. In 2008, an incident that caught the eyes of passers-by was a group of cross-dressed men dancing to Bollywood tunes on a rooftop on the day of Basant.[8] An anonymous interviewee told BBC that he cannot remember an occasion in almost 10 years that he has felt threatened with regards to his sexuality in Pakistan.[14]

In 2003, however, three Pakistani men were arrested in the city of Lahore when one of their relatives turned them in for engaging in same-sex sexual acts at a private party. Their punishment is not known.

In 2005, a man named Liaquat Ali, 42, from Khyber region bordering Afghanistan married a fellow tribesman Markeen, 16, with the usual pomp and show associated with tribal weddings. Upon hearing of the man's religious infidelity, a tribal council told the pair to leave the area or face death.[16]

Where men are now opening up to sexualities, lesbianism has lesser exposure in the country and one hears rarely of events that matter to women indulging in same-sex relationships. One such court case, decided in 2008, displayed the same disapproving attitude towards a lesbian relationship as it would have towards two men involved.[17][18]

Transsexualism and intersexuality[edit]

A thriving community of hijras and transsexual people cross-dressed as females protest in Islamabad.

In most South Asian nations, a concept of third gender prevails where members of the same are referred to as neither man or a woman. Pakistan is no different and has a vibrant culture of hijras. They are sometimes referred to as transsexuals in English language publications.[19] Like transgender people in many countries they are sometimes the subjects of ridicule, abuse, and violence.[19] That said they enjoy a certain level of acceptance due to their position in precolonial Desi society. For example they are welcome at weddings where they will dance as entertainment for the men, and are also welcome among the women.[19]

Their presence in society is usually tolerated and are considered blessed in the Pakistani culture. Most hijras are deemed to have been direct cultural descendants of the court eunuchs of the Mughal era.[20] Thought to be born with genital dysphoria and afraid that they might curse one their fate,[21][22] people listen to their needs, give them alms, and invite their presence at various events and functions, e.g., birth of a child, his circumcision or weddings.[23] This mysteriousness that shrouds their existence has born of the fact that the hijra communities live a very secretive life. In 2004, it was reported that Lahore alone has 10,000 active transvestites.[20]

People have started accepting acts of sex reassignment surgery to change their sex as a norm either compelled by gender identity disorder or just for the sake of it. There are situations where such cases have come into the limelight.[17] A 2008 ruling at Pakistan's Lahore High Court gave permission to Naureen, 28, to have a sex change operation, although the decision was applicable only towards people suffering from gender identity disorder.[24]

In 2009, the Pakistan Supreme Court ruled in favor of a group of transvestites. The landmark ruling stated that as citizens they were entitled to the equal benefit and protection of the law and called upon the government to take steps to protect transvestites from discrimination and harassment.[25] Pakistan's chief justice Iftikhar Chaudhry was the architect of major extension of rights to Pakistan's transgender community during his term.[26]

Acceptance in media and popular culture[edit]

In 2005, Ali Saleem, 28 and the son of an army colonel, appeared on Geo TV's Hum Sub Umeed Se Hain as cross-dressed Benazir Bhutto. So loved were his performances that he has taken to act to extremes on-air and presents his own talk show where he appears as a dragged-up character named Begum Nawazish Ali. Begum would almost always interview influential government ministers, e.g., pro-Jamait-e-Islami former mayor of Karachi, Naimatullah Khan.[27] His character self is often compared to Dame Edna Everage.[28]

To raise awareness of LGBT issues author Eiynah published a childrens book called "My Chacha is Gay." Toronto LGBT book stores have added the book to their shelves recently. [29] The topic of LGBT issues remains taboo in Pakistan to discuss, despite curiosity. Relative to its total Google searches, for the year ending 15 June 2013, Pakistan was the world leader for searches of the term "shemale sex", second in the world for searches of "man fucking man", and third in the world for searches of "gay sex pics".[30]

Government's stance on homosexuality[edit]

Pakistani law is a combination of the colonial and Islamic view. Under the Pakistan Penal Code (PCC), same-sex sexual acts are deemed a crime that are punishable by a prison sentence. With the Islamicisation of Pakistan policies under the rule of General Muhammad Zia-ul-Haq, Islamic sharia laws were intervened with the existing laws. A complete compilation of Islamic laws that amended the policies were called the Hudood Ordinance that stipulated severe punishments for adultery, fornication, consuming alcohol, and same-sex sexual acts. What was excluded, however, were punishments for actions that involved pederasty, with pederasty becoming confused with other carnal acts.

Under the colonial aspects of law, since 1860, same-sex sexual acts were a crime punishable by a sentence of two to 10 years in prison. Buggery is punishable by an automatic life sentence in prison. However, when the Islamic laws were introduced to the system, amendments included primitive forms of punishments like whipping of up to 100 lashes and death by stoning. A LGBT Pakistani may face either secular or Islamic, or in some cases both punishments combined. Although, all of the known recorded cases of these laws being used against LGBT Pakistanis suggest that more common punishment involves police harassment and the imposition of fines and or jail time.

Under section 377 of the PPC, it states:[31][32]

Of Unnatural Offences
Section 377: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine.[32]

In the PPC, the provision defining the offence and prescribing the punishment for it is titled unnatural offences where people would argue that while same-sex sexual acts are generally an offence under Pakistan's Penal Code (PCC), this particular law does not specifically refer to homosexuality.[31]

The UNHRC vote[edit]

The Islamabad government has always shown resistance against the issue of gay rights and never hid its intolerance. A United Nations vote cast on 25 April 2003, on issues of LGBT human rights was derailed at the last minute by an alliance of five disapproving Muslim countries, including Pakistan. The others being Egypt, Libya, Saudi Arabia and Malaysia.[33]

The countries delayed their votes to stall the process and proposed amendments that were meant to kill the measure deliberately, removing all references to discrimination on the basis of sexual orientation, rendering the resolution meaningless. The resolution was tabled by Brazil with support from 19 of the 53 member countries of the UN Human Rights Commission (UNHRC) in Geneva.[33] It called on member states to promote and protect the human rights of all persons, regardless of their sexual orientation.[31]

Civil rights[edit]

No civil rights legislation exists to prohibit public or private sector discrimination on the basis of sexual orientation or gender identity and nor are political parties or organizations in Pakistan publicly supporting any LGBT rights legislation. Sociologists Stephen O. Murray and Badruddin Khan have written that the penal laws themselves are rarely enforced directly, but are used by the police and other private citizens as a form of blackmail.[34]

In March 2012 at the Human Rights Council, Hina Jilani, who was then also Chair of the Human Rights Commission of Pakistan and former Special Representative of the Secretary-General said, "it was very important to emphasize that a serious obstacle was the persistent denial of protection for people from violence on the basis of sexual orientation and gender identity. That denial and rejection was not prudent for any Government that claimed commitment to the promotion and protection of human rights. It was not convincing when culture and religion were used as a shield and an excuse for failure to protect. There was no notion of responsibility that allowed duty bearers to selectively hold out on protection."[35]

LGBT politics[edit]

Political parties, interest groups and other political organizations in Pakistan are required to respect Islam and "public morality", which may prelude any endorsement of LGBT rights. The one exception seems to be Pakistani citizens who are transsexual or a member of the third gender. In 2009, the Pakistani Supreme Court ruled that the government must take proactive steps to protect transsexuals from harassment and discrimination, although no legislation in the area of gender identity has advanced. 'Third gender' was officially protected from discrimination by the Supreme Court of Pakistan in 2010.

In June 2013 the Pew Research Center stated that of 39 countries studied, Pakistan was found to be one of the least gay-tolerant, with 87% of those surveyed saying homosexuality should be rejected. Also in late 2013, the government of Pakistan censored the website Queerpk.com from being viewed.[36]

Related issues[edit]

A growing number of gay and bisexual Pakistanis, mostly from the urban, middle and upper classes, are more open about their sexual orientation and are attending or hosting social functions. Underground night clubs exist in Karachi for same-sex romances. Under a veneer of strict social conformity, most of these men do not reveal their identity outside of the underground “group sex parties.”[37] While there is no political movement being launched, the Internet has played a large role in social networking and fighting isolation with websites like Facebook, Orkut, blogs and websites.[38] The blogosphere so far has been immune to the modern emergence of queer desi identity. Blogs now highlight stories and issues specific to this marginalised community.[38]

One of the issues that that has opened up public discussion about LGBT rights has been the effort to combat the spread of AIDS-HIV among men who have sex with other men, but who do not necessarily identity as being gay or bisexual in orientation. UNAIDS official reports suggest that they are targeting night truck drivers who are known for having sex with younger men.[39] Of most concern is the spread of HIV and AIDS.

Fighting HIV and AIDS[edit]

The AIDS pandemic first arose in Pakistan in 1987, and the official government reports estimate (as of 2004) that nearly 3,000 Pakistanis are living with the disease, although several critics believe that the government is underestimating the problem.[40] It is believed that the number may have risen to somewhere between 70,000 and 80,000 people,[41] and possibly as high as 210,000 (as in the UNAIDS Pakistan reports).[39]

Today, a small number of organizations exist in Pakistan to promote greater education about HIV/AIDS, including the Association for People Living With AIDS/HIV In Pakistan, which was created in 2006.[39] One of the few public educators is a woman named Shukria Gul, who got infected from her husband. She had been fighting ever since to raise awareness of the disease, and has been highly critical of the government's efforts. Ignorance about the disease, and how it is spread, is commonplace; this is particularly true among people performing high-risk behavior such as prostitutes. Pakistani prostitutes do not have access to condoms or contraception, and there is little effort to provide any sort of public health education for this high-risk group.[42]

Where there was no public call for tolerance or acceptance of LGBT people, the subject of sexual orientation and gender identity are becoming more openly discussed, especially in light of the HIV/AIDS pandemic.[14] All but a handful of LGBT Pakistanis are in the closet, the most public form of same-sex sexual acts involving illegal prostitution.[43] Young children are often forced into prostitution due to poverty, or outright coercion and have no means of protection.[44]

US Embassy Islamabad incident[edit]

On July 4, 2011, the US embassy in Islamabad hosted a LGBT event in support of gay rights in Pakistan. The embassy described the event as its first gay, lesbian, bisexual and transgender pride celebration. Jamaat-e-Islami and other groups of religious conservatives in Pakistan condemned the event and went on a protest.[45]

Summary table[edit]

Same-sex sexual activity legal No (Penalty: fine or 2 to less than 10 years of imprisonment; varies by region and is rarely enforced)[46][2][47]
Equal age of consent No
Anti-discrimination laws in employment for gays, lesbians, and bisexuals No
Anti-discrimination laws in employment only for transgender or transexual persons Yes (known as Khuwaja Sira, formerly hijra, or Third Gender)[48][49]
Anti-discrimination laws in the provision of goods and services for gays, lesbians, and bisexuals No
Anti-discrimination laws in the provision of goods and services for Yes (known as Khuwaja Sira, formerly hijra, or Third Gender)[48][49]
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No
Recognition of same-sex couples No
Adoption by same-sex couples No
Gays allowed to serve in the military No
Right to change legal gender Yes (since 2010)
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No

See also[edit]

References[edit]

  1. ^ "Pakistan Law". International Lesbian, Gay, Bisexual, Trans and Intersex Association. Retrieved 2014-02-11. 
  2. ^ a b "The 41 Commonwealth Nations where being gay can land you in prison". Pink News. Retrieved 2014-02-11. 
  3. ^ "Where is it illegal to be gay?". BBC News. 10 February 2014. Retrieved 2014-02-11. 
  4. ^ "Gay Pakistanis, Still in Shadows, Seek Acceptance". The New York Times. 3 November 2012. Retrieved 2014-02-12. 
  5. ^ "Pakistan Penal Code (Act XLV of 1860)". Pakistani. Retrieved 2014-02-12. 
  6. ^ Azhar, Mobeen (2013-08-26). "BBC News - Gay Pakistan: Where sex is available and relationships are difficult". Bbc.co.uk. Retrieved 2014-02-11. 
  7. ^ "Gays in Pakistan Move Cautiously to Gain Acceptance". The New York Times. 3 November 2012. 
  8. ^ a b c Walsh, Declan (2006-03-14). "Pakistani society looks other way as gay men party". London: The Guardian Newspaper. Retrieved 2008-05-05. 
  9. ^ "Pakistan Penal Code (Act XLV of 1860)". Pakistani.org. Retrieved 2014-02-11. 
  10. ^ "The Constitution of Pakistan". Pakistani.org. Retrieved 2014-02-11. 
  11. ^ Anderson, Paul (10 December 2004). "Madrassas hit by sex abuse claims". BBC World. 
  12. ^ Ansari, Massoud (7 February 2004). "Acid attack on boy who 'refused sex with Muslim cleric'". London: The Daily Telegraph. Retrieved 2008-05-05. 
  13. ^ Harvey, Oliver (2007-12-31). "Cleric's chilling warning to UK". The Sun newspaper (London). Retrieved 2008-05-05. 
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  15. ^ "Gay Party in Islamabad". YouTube. Retrieved 2008-05-05. 
  16. ^ Anon. (2005-10-05). "First gay 'marriage' in Pakistan". BBC World. Retrieved 2008-05-05. 
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  18. ^ Anon. (2007-05-23). "Pak lesbian couple look at Musharraf for help". Times of India. Retrieved 2008-05-05. 
  19. ^ a b c Kiss and tell By Rabab Naqvi unday, 25 Oct, 2009
  20. ^ a b "Out-on-their-luck teens turn to prostitution". The Daily Times (Pakistan). 
  21. ^ "Eunuchs warn of power outage protest dance". TopNews India. 
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  25. ^ [1][dead link]
  26. ^ Jon Boone in Islamabad. "Pakistan's chief justice Iftikhar Chaudhry suffers public backlash | World news". theguardian.com. Retrieved 2014-02-11. 
  27. ^ Walsh, Declan (2006-05-17). "Pakistan's late-night, cross-dressing TV star". San Francisco Chronicle. Retrieved 2008-05-06. 
  28. ^ Wilkinson, Isambard (2006-04-22). "How Pakistan's 'Dame Edna' has upset Musharraf". London: The Daily Telegraph. Retrieved 2008-05-06. 
  29. ^ http://www.pakistantoday.com.pk/2014/05/31/comment/my-chacha-is-gay/
  30. ^ "Homosexuality Is Not Tolerated In Pakistan, But The Country Leads Google Searches For Gay Porn". Huffingtonpost.co.uk. 2013-06-14. Retrieved 2014-02-11. 
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  32. ^ a b Pakistan Penal Code (PDF). Government of Pakistan. p. 138. Retrieved 2008-05-05. 
  33. ^ a b Osborn, Andrew (2003-04-25). "Muslim alliance derails UN's gay rights resolution". London: The Guardian Newspaper. Retrieved 2008-05-05. 
  34. ^ Khan, Badruddin (August 1997). Sex Longing & Not Belonging : A Gay Muslim's Quest for Love & Meaning. Floating Lotus USA. ISBN 0-942777-16-6. 
  35. ^ "Human Rights Council holds panel discussion on discrimination and violence based on sexual orientation and gender identity". UN High Commissioner for Human Rights. Retrieved 16 February 2014. 
  36. ^ "Pakistan's gays in dark as Muslim nation's first gay website blocked". CNN.com. Retrieved 2014-02-11. 
  37. ^ Kiran Nazish, The Diplomat. "Queer Pakistan Under Attack". The Diplomat. Retrieved 2014-02-11. 
  38. ^ a b "Queeristan". Retrieved 2008-05-06. 
  39. ^ a b c "UNAIDS Pakistan". Retrieved 2008-05-06. 
  40. ^ Anderson, Paul (2004-12-01). "Battle to beat Pakistan's Aids taboo". BBC News. Retrieved 2008-05-06. 
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