Dr Mohammad Aslam Khaki, an Islamic scholar, filed a case on behalf of the transgender community. Khaki argued for legal recognition and equal treatment of transgender persons, under the Constitution of Pakistan.
The Constitution of Pakistan recognises the right to equal treatment of all citizens. It allows public authorities to make provisions for any ‘socially or educationally backward class of citizens.
The Court directed provinces across the country to submit reports on the status of the “eunuch” population. A working paper submitted to the Court addressed issues of property inheritance, identity registration, voting, employment, and schooling faced by transgender persons in the country.
The Court through its multiple orders during the pendency of the case observed that transgender persons had been neglected “merely on account of gender disorder in their bodies”. It held that transgender persons were entitled to all fundamental rights enshrined in the Constitution. Consequently, the Court directed the National Database and Registration Authority (NADRA) to recognise transgender persons as “third gender” in identification documents. It also directed government bodies to take steps for the realisation of transgender rights. This included directives to the Social Welfare Department to ensure admission and inclusion in educational institutions and recommendations to Federal and Provincial Governments to institute policies to encourage employment opportunities for transgender persons. Finally, the Court noted the prevalence of harassment by law enforcement. It underscored the responsibility of Federal and Provincial governments to ensure protection and respect for transgender persons. In the final order, it held that the eunuchs should be treated equally as other citizens in this country enjoying the same rights under the Constitution of the Islamic Republic of Pakistan.
This decision instituted “third gender” as a category under “sex” based on which transgender persons could access their fundamental rights under the constitution. This was a landmark judgement, the first in granting legal recognition to transgender persons in Pakistan. The Chief Justice of Pakistan, Iftikhar Chaudhry, faced severe criticism for the judgement.