KEY FACTS:
On 23rd August 2020, an advertisement was publicized by the Punjab Public Service Commision to call for applications for the posts of Lecturers. These applications were invited only under Male and Female categories. The Petitioner, being transgender, applied for the post under Female category in exercise of their option under Section 3 of the Transgender Persons Protection of Rights Act, 2018 (‘Trans Act 2018’). However, their application was rejected on grounds that the posts were open only for males or females, and not transgender persons.
ISSUE AND DECISION:
The issue before the Lahore High Court was whether the rejection of the Petitioner’s application was illegal, and whether the Petitioner could be allowed to apply under Lecturer (Female).
The counsels appearing for the respondents told the Court that they were ready to concede and allow the Petitioner to take part in the recruitment process under the Lecturer (Female) category. On this basis, the Court set aside the order that rejected the Petitioner’s application and held that she will be allowed to participate in the recruitment process.
The Court held that this violated not only the Constitutional Guarantees under the Constitution of the Islamic Republic of Pakistan, but also sections 4, 6, 9, 11 and 16 of the Trans Act 2018. The Court also directed the Government to frame a comprehensive policy for the Higher Education Department implementing the Trans Act 2018 in letter and spirit.
SIGNIFICANCE:
The judgment affirms the right to self-identify in the context of public employment: transgender persons have the right to apply as the gender of their choice. This right is guaranteed by both the Trans Act 2018 and the Constitution of Pakistan.
The Court also noted that the respondents had conceded only under social, moral and legal pressure. Their mindset had not changed since they categorically stated that they only concede in the case of the Petitioner and not other transgender persons. It held that this is discriminatory and shameful.