LGBT rights in Pakistan

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LGBT rights in Pakistan Pakistan
LGBT flag map of Pakistan.svg
Same-sex sexual activity legal? Illegal (not enforced)[1]
Penalty:
2 years to life imprisonment.[2][3][4]
Gender identity/expression Laws to protect Transgender and Transsexual persons in all of Pakistan
Military service No
Discrimination protections Only for transgender and transsexual persons
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 one's sexual orientation, such as being a lesbian, gay or bisexual person, is considered a taboo in Pakistan. Even in large cities, gays and lesbians have to be highly discreet about their sexual orientation. There is a growing number of individuals—especially those born to parents who have been educated in the developed world, are usually university graduates and have some sort of understanding about evolution and sexuality—who are coming out to their friends and introducing them to their same-sex partner.[5]

Pakistan's law prescribes 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. Despite being a legal offense, acts of homosexuality are rarely prosecuted in the country.[1]

In what was seen as a historic move in 2009, the Supreme Court of Pakistan ruled in favour of the civil rights of transsexual citizens.

Pakistan does not have civil rights laws to prohibit discrimination or harassment on the basis of sexual orientation. Neither same-sex marriages nor civil unions enjoy legal recognition and are scarcely ever brought up in the political discourse. The LGBT community in Pakistan has not officially begun to campaign for LGBT rights and it remains a long distance dream for that community.

Discrimination and disapproval of the LGBT community, along with the associated social stigma, mostly stem from religious and patriarchal beliefs and make it difficult for the LGBT people to have steady relationships.[6] Nevertheless, the LGBT community is able to socialize, organize, date and even live together as couples, but usually only secretly:[7] Sexual encounters between same-sex partners are easily accessible, especially in big cities such as Karachi and Lahore, and for gay and bisexual men in particular, with it even being socially accepted to demonstrate their affection. As a result of globalisation, increasing liberalisation trends and advancing social tolerance, private gay parties in Pakistan have been thriving for a number of years.[8]

LGBT legal Issues[edit]

Pakistani law is a mixture of both Anglo-Saxon colonial law as well as Islamic law. Under the colonial aspects of the law, the section of the penal code criminalizing consensual same-sex relations dates back to 6 October 1860 under the colonial rule of the 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, parliament decided to continue using the same penal code, merely changing the title to Pakistan Penal Code (Act XLV of 1860), PPC. Within the PPC, Article 377 ("Unnatural Offences") 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".[9]

However, with the Islamicisation of Pakistan policies under the rule of General Muhammad Zia-ul-Haq, Islamic sharia laws were intertwined with the existing laws. A complete compilation of Islamic laws that amended the policies, called the Hudood Ordinance, stipulated severe punishments for adultery, fornication, consuming alcohol, and same-sex sexual acts. The amendments included primitive forms of penalization like whipping of up to 100 lashes and death by stoning. What was excluded, however, were penalties for actions that involved pederasty, which was confused with other carnal acts.[citation needed] An LGBT Pakistani may face either secular or Islamic, or in some cases both punishments. Although, all of the known recorded cases of these laws being used against LGBT Pakistanis suggest that the more common punishment involves harassment and sporadic blackmail by the police, the imposition of fines and jail sentences.[10]

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.[11]

  • 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.[12] 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 pederasty 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.[13]

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.[14]

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.[15]

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.[15][16] 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.[17] 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.[15]

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.[18]

Where men are now opening up to sexuality, 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.[19][20]

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.[21] Like transgender people in many countries they are sometimes the subjects of ridicule, abuse, and violence.[21] 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.[21]

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.[22] Thought to be born with genital dysphoria and afraid that they might curse one their fate,[23][24] 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.[25] 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.[22]

People have started accepting acts of sex reassignment surgery to change their sex as a norm either compelled by gender dysphoria or just for the sake of it. There are situations where such cases have come into the limelight.[19] 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 dysphoria.[26]

In 2009, the Pakistan Supreme Court ruled in favour 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.[27] Pakistan's chief justice Iftikhar Chaudhry was the architect of major extension of rights to Pakistan's transgender community during his term.[28]

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.[29] His character self is often compared to Dame Edna Everage.[30]

To raise awareness of LGBT issues author Eiynah published a children's book called "My Chacha is Gay." Toronto LGBT book stores have added the book to their shelves recently.[31] 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".[32]

In June 2016, a small clerical body in Lahore known as Tanzeem Ittehad-i-Ummat declared Transgender marriages legal under Islamic law. [33]

In November 2016, Kami Sid, a female identified transgender activist, did a photoshoot with photographer Haseeb M. Siddiqui, stylist Waqar J. Khan and makeup artist Nighat Misbah[34] as a form of protest against the atrocities committed against transgender people in Pakistan. One of those atrocities was the death of a transgender woman identified as Alisha, who had a gunshot wound. Alisha died because there was a delay in care due to an argument whether to put her in the male ward or female ward of the hospital. While Pakistan has addressed a "third" gender when identifying transgender people, Kami Sid believes more can be done. Sid is quoted saying “We have to understand that by just mentioning the third gender identity on your CNIC, the state has not done enough. It is not enough that the government has fixed a two per cent job quota either. No! It’s a protracted fight that we have to continue to get equal opportunities”[35] Before doing this photoshoot, Kami Sid was already a part of two documentaries How Gay is Pakistan? and Chuppan Chuppai[36] to shed light on what it means to be transgender in Pakistan. In January 2017, Sid discussed a new movie she is starring in, Rani, in which she plays a transgender woman who finds an abandoned baby and raises it as her own. The movie is directed by award-winning director Hammad Rizvi. Kami Sid is hopeful that this will have a positive impact on Pakistan's societal view of transgender people, much like the photoshoot. [37] Hina Pathani, another prominent transgender activist, will be starring alongside Kami Sid in Rani. [38] Kami Sid was helpful in confirming and disproving some preconceived notions of transgender people in the recent TV show Khuda Mera Bhi Hai. Asma Nabeel, the writer of Khuda Mera Bhi Hai, was more than happy to ask questions for clarification.[39]

Government's stance on homosexuality[edit]

The UNHRC vote[edit]

The Islamabad government has always shown resistance towards 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.[40]

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.[40] It called on member states to promote and protect the human rights of all persons, regardless of their sexual orientation.[41]

Civil rights[edit]

No civil rights legislation exists to prohibit public or private sector discrimination on the basis of sexual orientation or gender identity.

The Green Party of Pakistan has expressed some support for LGBT rights, but most political parties either ignore the issue of LGBT rights or oppose LGBT rights on religious grounds.

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.[42]

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."[43]

LGBT politics[edit]

Political parties, interest groups and other political organizations in Pakistan are required to respect Islam and "public morality", which may preclude 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.[citation needed]

Public opinion[edit]

Public opinion regarding LGBT politics is complex. In June 2013, the Pew Research Center stated that of 39 countries studied, Pakistan was one of the least accepting of homosexuality with 87% of those surveyed saying "Homosexuality should not be accepted by society".[citation needed] Alternatively, a survey by the International Lesbian, Gay, Bisexual, Trans and Intersex Association found that 60% of Pakistanis would have no concerns if "[their] neighbour were gay or lesbian", and 30% of Pakistani people thought "same-sex marriage [should] be legal." This was similar to the percentage of people in nearby India who supported same-sex marriage (35%).[44]

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 events. 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."[45] While there is no political movement being launched, the Internet has played a huge role in social networking and fighting isolation with websites like Facebook, Orkut, blogs and websites.[46] 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.[46]

One of the issues 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.[47]

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.[48] It is believed that the number may have risen to somewhere between 70,000 and 80,000 people,[49] and possibly as high as 210,000 (as in the UNAIDS Pakistan reports).[47]

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.[47] 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.[50]

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.[15] All but a handful of LGBT Pakistanis are in the closet, the most public form of same-sex sexual acts involving illegal prostitution.[51] Young children are often forced into prostitution due to poverty, or outright coercion and have no means of protection.[52]

US Embassy Islamabad incident[edit]

On 4 July 2011, the US embassy in Islamabad hosted an 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.[53]

Media Coverage[edit]

Pakistani media strictly censors LGBT related news stories. In late 2013, the government of Pakistan censored the website Queerpk.com from being viewed.[54]

When a Chinese court accepted to hear a case regarding the issue of same-sex marriage, the news story received substantial international coverage. However, in the Pakistani version of the International New York Times (Express Tribune), the picture accompanying the article was censored and a blank space was left on the front page of the newspaper. Daily Times columnist Farman Nawaz raised several questions about this kind of journalistic approach.[55] However, Farman Nawaz (editor of Border Times Pakistan) took a different approach while writing for Global Times China. He wrote "Secular and liberal viewpoints are not given space on the pages of newspapers and news channels in Pakistan and liberals have to wrap their ideas in religion and customs to make them worth publishing. But people have found social media a more accommodating space".[56]

Summary table[edit]

Same-sex sexual activity illegal No (Penalty: fine or 2 to less than 10 years of imprisonment; varies by region and is rarely enforced)[57][58][59][1]
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 transsexual people Yes (known as Khuwaja Sira, formerly hijra, or Third Gender)[60][61]
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 transgender or transsexual individuals Yes (known as Khuwaja Sira, formerly hijra, or Third Gender)[60][61]
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
MSMs allowed to donate blood No

See also[edit]

References[edit]

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