LGBT rights in Pakistan

Traditional religious norms and cultural beliefs view homosexuality and cross-dressing negatively and this homophobic societal attitude contributes to intolerant social behavior as well as refusal of the government, or most political groups within Pakistan, to support LGBT-rights. The current criminal ban on homosexuality comes from a British colonial era law, which has been on the books since 1860, with subsequent laws further restricting LGBT-rights under the guise of protecting public morality.

Pakistan does not have civil rights laws to prohibit discrimination or harassment on the basis of real or perceived sexual orientation and there is no legal recognition of same-sex marriage or civil unions in Pakistan.

The LGBT community in Pakistan has not formally begun to campaign for LGBT-rights, but there is growing tolerance for social gatherings of gay men in the cities and the Pakistani Supreme Court ruled in favor of the civil rights of transsexual citizens.

LGBT Legal Issues

Pakistani law is a mixture of both Anglo-Saxon colonial law as well as Islamic law, both which proscribe criminal penalties for homosexuality. The Pakistan Penal Code of 1860, originally developed under colonialism, punishes acts of 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. Alongside these Anglo-Saxon based laws are the religious courts and Islamic laws, where the maximum punishment for sodomy is death. Yet, the more likely situation for gay and bisexual men is sporadic police blackmail, harassment, fines and jail sentence.

Pakistan Constitution

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

• 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

• 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 offence.
• 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

An institutional form of pederasty does exist within certain parts of rural Pakistan, which is often treated as being the same as homosexuality, thus furthering homophobia within Pakistani society and making it harder to help victims of sexual abuse, because both the abuser and his victim are often treated as the law and society treats gay people.

The World Organization Against Torture (Organisation Mondiale Contre la Torture, OMCT) targeted Pakistan conservatives in the tribal areas in 1997 over the recent whipping of two males, an adult and a minor, allegedly caught having sex in a public lavatory. Mohammad Yaman, a mosque worker and Fahimullah, 14, a student were lashed publicly on 1997-05-17 in Bara Bazar in Pakistan's western Khyber Agency, an area administered by local Afridi tribesmen. It was reported that Fahimullah was paid PKR 100 (USD 1.15) for the act. The adult was whipped 75 times while the minor received 32 lashes. A Kahuta based Pakistani cleric stated on 2007-12-31 that every homosexual person should be killed to stop this sudden growth towards sexual awareness suggesting either beheading or stoning the involved.

There have been several incidents of pederasty reported as being made by clerics towards young boys at religious schools or madrasahs. It is often difficult for victims of sexual abuse to get justice in these situations, because the public does not want to believe that a cleric could engage in pederastry 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. 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.

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. These usually involve large numbers of men dancing together in huge isolated rooms modelled 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. Yet, despite examples of tolerance, prejudice and discrimination still exists.

In 2003, however, three Pakistani men were arrested in the city of Lahore when one of their relatives turned them in for engaging in homosexuality 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.

Where men are now opening up to sexualities, lesbianism has lesser exposure in the country and one hears almost rarely of events that matter to women indulging in homosexual 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.

Transsexualism and intersexuality

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

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. Thought to be born with genital dysphoria and afraid that they might curse one their fate, 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. 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.

People have started accepting acts of sex reassignment surgery to change their sex as a norm either compelled by gender identity disorder or just for the sake of it. There are situations where such cases have come into the limelight. A 2008 ruling at Pakistan's Lahore High Court issued permissions to Naureen, 28, to have a sex change operation, although the decision was applicable only towards people suffering from gender identity disorder.

In 2009, the Pakistan Supreme Court ruled in favor 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

Acceptance in media and popular culture

In 2005, Ali Saleem, 28, son of an army colonel gathered courage to appear 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. His character self is often compared to Dame Edna Everage.

Government's stance on homosexuality

Pakistani law is a combination of the colonial and Islamic view. Under the Pakistan Penal Code (PCC), homosexuality is deemed a crime that is punishable by a prison sentence. With the Islamicisation of Pakistan policies under the rule of General Muhammad Zia-ul-Haq, Islamic sharia laws were intervened with the existing laws. A complete compilation of Islamic laws that amended the policies were called the Hudood Ordinance that stipulated severe punishments for adultery, fornication, consuming alcohol and homosexuality. What was excluded however was punishments for actions that involved pederasty, pederasty became confused with other carnal acts.

Under the colonial aspects of law, since 1860, homosexuality was a crime punishable by a sentence of two to 10 years in prison. However, when the Islamic laws were introduced to the system, amendments included primitive forms of punishments like whipping of up to 100 lashes and death by stoning. A homosexual Pakistani may face either secular or Islamic, or in some cases both punishments combined. Although, all of the known recorded cases of these laws being used against LGBT Pakistanis suggest that more common punishment involves police harassment and the imposition of fines and or jail time.

Under section 377 of the PPC, it states:

Of Unnatural Offences

• Section 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.

In the PPC, the provision defining the offence and prescribing the punishment for it is titled unnatural offences where people would argue that while homosexuality is generally an offence under Pakistan's Penal Code (PCC), this particular law does not specifically refer to homosexuality.

The UNHRC vote

The Islamabad government has always shown resistance against the issue of gay rights and never hid its intolerance. A UN vote cast on 2003-04-25, on issues of homosexual human rights was derailed at the last minute by an alliance of five disapproving Muslim countries which included Pakistan. The others being Egypt, Libya, Saudi Arabia and Malaysia.

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

Course of denials

The Government denies that homosexuality even exists in Pakistan and that LGBT expressions or human rights are alien concepts from the decadent west. Pakistan is one of the few countries retaining penalty of death as punishment for homosexuality and one of the eight countries retaining capital punishment for the same. Others being Mauritania, Sudan, Afghanistan, Iran, Saudi Arabia and Yemen. However, the UAE's stance is unclear.

Civil rights

No civil rights legislation exists to prohibit public or private sector discrimination on the basis of sexual orientation or gender identity and nor are political parties or organizations in Pakistan publicly supporting any LGBT rights legislation. 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.

Pakistan is under the spotlight after the derailment of the UN vote to make a formal statement supporting the human rights of LGBT people. During that same month, the chief minister of Pakistan’s south-eastern state of Sindh, Ali Mohammad Mahar, was publicly outed as being gay and attending private parties in women's clothing, although he was allowed to keep his government job.

LGBT politics

Political parties, interest groups and other political organizations in Pakistan are required to respect, Islam and "public morality", which may, prelude 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' officially protected from discrimination by the Supreme Court of Pakistan in 2010.

Related issues

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 functions. While their is no political movement being launched, the Internet has played a large role in social networking and fighting isolation with websites like Facebook, Orkut, blogs and websites. 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.

One of the issues that that has opened up public discussion about homosexuality has been effort to combat the spread of AIDS-HIV among men who have sex with other men, but may 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 other younger men. Of most concern is the spread of HIV and AIDS.

Fighting HIV and AIDS

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

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. 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 bahavior 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.

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. All but a handful of LGBT Pakistanis are in the closet, the most public form of homosexuality involving illegal prostitution. Young boys, and girls, are often forced into prostitution due to poverty, or outright coercion and have no means of protection.