Advancing queer and transgender rights in Pakistan
A conversation with Professor Lucas Lixinski and Law & Justice alumnus Jarri Haider
A conversation with Professor Lucas Lixinski and Law & Justice alumnus Jarri Haider
June is Pride Month in much of the world (particularly in the northern hemisphere). It is a time to reflect, celebrate, and strategise. While there are many achievements for LGBTIQ+ people around the world worth celebrating, and the joyous abandonment of a Pride Parade is wonderfully political, there are still many fights to be fought. In countries like the United States, the fight today comes down to basic things like the right to exist as your own self. In Australia, the current battleground is religious freedom. In places like Pakistan, religion is weaponised to target people's identities.
Jarri Haider (he/they) is a UNSW alumnus advancing the rights of queer and trans and gender diverse people in Pakistan. They spoke to Professor Lucas Lixinski (he/him) at UNSW Law & Justice about this work, what it means to fight for social justice in practice, and the importance of strategy for rights.
Tell us a little about yourself. When did you come to UNSW? What did you study here? What are you working on at the moment?
I am a young Pakistani lawyer, working as an Associate at a leading firm in Pakistan's capital city of Islamabad. I came to UNSW as an international student, graduating from the Bachelor of Arts/Laws (Honours) program in 2020. Currently, I am working on a constitutional appeal regarding transgender rights before the Supreme Court of Pakistan.
How do you think what you learned at UNSW Law & Justice helps with your current work?
It was incredibly important for me to choose a law school that would enable me to pursue a career in public interest advocacy. At UNSW, I pursued my legal training through praxis: completing two Aurora internships, volunteering at the Aboriginal Legal Service, and undertaking clinical legal education at the Kingsford Legal Centre. These practical experiences informed the issues I later wrote about in my Honours thesis, where I focused on the link between offensive language laws, the expansion of police discretion, and the over-policing of Indigenous people in public spaces. When I came back to Pakistan, I realised that, owing to a shared colonial history with Australia, the Pakistan Penal Code, 1860 also contained public order provisions similar to the ones I had explored in my thesis. In Pakistan too, these provisions were being used to police vulnerable communities, particularly Pakistan's indigenous transgender community - the khwaja sarahs. In this way, the insights I gained through my academic work at UNSW Law & Justice directly led to my current role as a human rights advocate for Pakistan's transgender community.
You had a lot of experience after graduation in multiple areas of law and multiple jurisdictions. What lessons have you learned about yourself, and about the role of law in society? And what skills have you been able to take from one position to the next?
Following my graduation, I completed my practical legal training while serving as the Human Rights Fellow at Legal Aid NSW. As a solicitor, I represented refugees and asylum-seekers in complex visa cancellation matters in the Commonwealth courts and the AAT. What I've learned through these experiences is that working in public interest law requires abiding care and sensitivity to your clients' vulnerabilities. The stakes are high, because what you do, or fail to do as a lawyer, might end up having serious consequences for someone's life, their family, and sometimes even their entire community. Therefore, empathy, cultural awareness, and a capacity to identify and address systemic injustices through strategic litigation are essential skills that I have acquired through my experience so far.
The case on which you are working is important for LGBTIQ+ social movements everywhere, and particularly in Pakistan. Tell us a bit more about the case and the legal strategies you are using.
I'm currently working on an appeal against the Federal Shariat Court's recent decision to strike down the operative provisions of Pakistan's first transgender rights legislation. The law in question, the Transgender Persons (Protection of Rights) Act, 2018, was a watershed moment for the queer rights movement in Pakistan. What sets the law apart from other similar legislation in South Asia, and even beyond, is that the Act does not condition a transgender person's right to identify with their correct gender on an external medical evaluation of their biological sex, or even a psychological evaluation to confirm a diagnosis of gender dysphoria. Instead, it uses a forward-thinking definition of gender identity, and bases the legal recognition of gender identity solely on a person's self-perception. In 2020, right-wing Islamist groups seized on the law's progressive nature, and challenged the law on grounds of its alleged 'repugnancy' to Islamic teachings. Curiously though, many of the arguments used by the petitioners in court were lifted verbatim from right-wing rhetoric against transgender rights in the US and the UK. Our legal strategy in the case was to show the Court that transgender people have existed in the Indian subcontinent since antiquity - that their sense of gender is rooted in a distinct interpretation of Islamic spirituality, and that their existence is neither a foreign import, nor alien to the lived experience of the Islamic faith. In doing so, we were also able to advance liberal interpretations of Sharia Law which accommodate the recognition of transgender people within Islam. Regrettably, the Federal Shariat Court failed to consider or engage with any of our arguments. Hence, the appeal.
What is the importance of self-identification in cases involving LGBTIQ+ (especially trans and gender diverse) persons?
The central premise of transphobic rhetoric - in Pakistan, and elsewhere - is to question the very existence of gender diversity. These arguments usually proceed on the basis that gender identity cannot and should not be determined on any basis other than biological sex. Even if we ignore, for a second, the fact that the sex binary is a myth with no basis in science, the most immediate consequence of making such an argument is to deny the humanity and agency of transgender people. This is why transgender rights advocates have so strongly opposed biological essentialism - advocating instead for the idea that gender has to do with a person's inner-most and individual sense of self, and not just their biology. Pakistan's Transgender Rights Act was drafted with these nuances in mind. Therefore, the inclusion of 'self-perceived gender identity' as the statutory benchmark for gender recognition in the Act was absolutely intentional. In fact, it was the result of the lawmakers' extensive consultations with transgender scholars, and the product of decades of activism by the Khwaja Sarah community. The Federal Shariat Court's casual dismissal of this context continues the painful legacy of dehumanisation facing transgender people (and other queer groups) across the world.
What does it mean to you to be an advocate for LGBTIQ+ rights in Pakistan with a global outlook?
I am deeply conscious of the global ramifications of my work on this case. Just this week, the Human Rights Campaign declared a national state of emergency in the United States due to the proliferation of laws targeting transgender people. Last month, Uganda introduced a law mandating the death penalty for anyone found to be engaging in same-sex acts, and a twenty-year prison sentence for LGBT advocates. Given this global wave of LGBT persecution, it was not surprising to me that the petitioners arguing against Pakistan's first transgender rights law cited transphobic rhetoric from far-right activists in the global north. What was surprising to see, was how much weight the Federal Shariat Court placed on these materials. It left no doubt in my mind that hate speech against LGBT people echoes globally - it is heard in courtrooms and legislatures worldwide, and it has consequences. If the goal is to combat LGBT oppression globally, then global solidarity between activists and lawyers is absolutely necessary.
How does the law connect to the aspirations of marginalised communities on the ground? What is the role of the law in helping advance these groups' aspirations?
Prior to British colonisation in India, transgender people held a revered status. They played an important role in the Mughal courts, and held significant political power. With colonialism, and the introduction of laws such as the Criminal Tribes Act, 1871, the very existence of transgender people was threatened. When the Transgender Rights Act was promulgated in 2018, the main intention was to undo some of the damage done to the community by this colonial legacy. The point of narrating this history is to show that law can be used as a double-edged sword - it has the capacity to suppress, as well as to liberate. Marginalised communities, such as the khwaja sarah, often have a very dim view of the law owing to their past experiences with it. And when the first Pakistani law granting this community legal recognition is struck down by a constitutional court on dubious grounds, one can imagine how this distrust of legal institutions deepens even further. My role as a lawyer is to rehabilitate the community's faith in the law as a tool for the advancement of their rights. It is an uphill battle, at all times, so I'm hoping that the Supreme Court of Pakistan will give the community the fair hearing they so desperately need and deserve.
Since the topic of protections for religious views is very much alive in Australia, what would you want to tell your fellow alumni and others in Australia about the relationship between religious freedom and LGBTIQ+ rights?
I understand that the topic of protections for religious views is a very charged question. I will address it in the Pakistani context, first. For those who don't know, Pakistan is an Islamic Republic, with Islam being the state religion. Pakistan's Constitution requires that all laws made by Parliament need to be consistent with Shariah Law - if they are not, the Federal Shariat Court has the power to strike them down. It might sound strange that this is even possible in an (allegedly) democratic set up, but that's the way things are. The petitioners who challenged the Transgender Rights Law were private individuals who felt that the law offended their religious sentiments. Since Australia is a secular state, it might be difficult to imagine this scenario playing out in that jurisdiction. However, the argument of protection for religious freedom can be used quite insidiously, in any context. For instance, the right to refuse service, or to refuse employment to LGBT people can very easily be clothed in the garb of an exercise of religious freedom. Since Australia doesn't have a human rights charter, it is quite possible that the legal expansion of protections for religious freedom could end up encroaching on the LGBT peoples' fundamental rights. Therefore, my advice to LGBT Australians would be to be remain alive to the possibility of such an encroachment and to hold their elected representatives accountable for taking action against it.