PESHAWAR: The Peshawar High Court has ordered the National Database and Registration Authority (Nadra) to unblock Computerised National Identity Card (CNIC) of a transgender person.

The court observed that a transgender had the right to freedom of expression and opinion regardless of his sexual orientation or gender identity.

A bench consisting of PHC Chief Justice Musarrat Hilali and Justice Shakeel Ahmad accepted a petition filed by a transgender person Shah Fahad alias Katrina against blocking of his CNIC on the orders of an additional district and sessions judge issued on March 4, 2019 and April 19, 2019.

The petitioner was fraudulently mentioned as surety for accused persons in two criminal cases when they were released on bail. When the accused started absconding, the court had issued non-bailable arrest warrants of the petitioner with the direction to Nadra to block his CNIC.

Rules people have rights regardless of their sexual orientation

Advocate Umair Iqbal appeared for the petitioner and said that traumatic experiences were faced by members of the transgender community. He argued that every member of that community including the petitioner had legal rights to be treated in accordance with law in terms of Article 4 of the Constitution and to espouse and determine their identity.

He said that since transgender persons were neither treated as male or female, nor given the status of third gender, they were being deprived of many rights and privileges, which other persons were enjoying as citizens of the country.

About the case of his client, the counsel stated that in a narcotics case in 2014 bail was granted to a woman accused and in her surety bonds the name of the petitioner was mentioned by someone and thus he was shown as one of the sureties. Subsequently, during inquiry, the Forensic Science Laboratory (FSL) found the signature of the petitioner on the surety bonds as forged and he was absolved of the liability as surety by the court.

However, the petitioner was shocked when he learnt about two FIRs wherein he was shown as surety of two other accused persons, who had been absconding, and the additional sessions judge had ordered blocking his CNIC through the two impugned orders.

Setting aside the impugned orders, the bench directed the presiding officers of subordinate courts across the province that before attesting the bail bonds/surety bonds they must inquire about the identity of the sureties and Nadra should provide facility of biometric system in the courts of judicial magistrates, sessions judges, additional sessions judges and judges of the special courts for comparison of signatures/thumb impressions of the sureties.

The bench observed that the petition exposed the prevalence of gender inequality in the society, which compelled one to contemplate whether fundamental conception of gender empowerment and gender justice was actualised despite a number of legislations, judicial pronouncements and progressive outlook in the society.

“We noted and observe that seldom, our society realises or cares to realise the trauma, agony, pain and humiliation, which the members of the transgender community undergo, nor appreciate the innate feelings of the members of the transgender community, especially those whose mind and body disown their biological sex,” the bench observed.

“Our society often ridicules and abuses the transgender community at public places like railway stations, bus stands, workplaces, mall, schools, hospitals, theatres, etc. They are sidelined and treated like untouchables, forgetting the fact that the moral failure lies in society’s unwillingness to accept them as human beings or embrace different gender identities and expressions, a mindset which we have to change,” the bench observed.

The court also referred to different international conventions observing that Article 6 of the Universal declaration of Human Rights 1948 and Article 16 of the International Covenant on Civil and Political Rights 1966 recognised that every human being had the inherent right to live and the right should be protected by law and no one should be arbitrarily deprived of that right.

“When we discuss about the rights of transgender persons in the constitutional context and perspective, we find that in order to bring about complete paradigm shift, law has to play more predominant role,” the bench maintained.

The bench said that treating a transgender person differently was the denial of the fundamental rights guaranteed to the citizens of Pakistan. “It is the denial of social justice, which in turn has the effect of denying political and economic justice,” it added.

Published in Dawn, May 14th, 2023