What Pakistan gets right and the US gets wrong on trans rights

The Trump administration is considering a policy that is arguably the most significant federal attack on civil and political rights in at least a generation, one which, the New York Times reports, would define 1.4 million transgender Americans "out of existence." The Department of Health and Human Services is leading an effort to legally define gender under Title IX as a "biological, immutable condition, determined by genitalia at birth," removing federal recognition and thereby rights and protections for those who identify as a gender other than the one they were assigned at birth

This proposed policy -- along with a recent proposed ban on transgender individuals serving in the US military -- stands in stark contrast to the pride many Americans have expressed over the country's perceived world leadership on issues of LGBT rights. And yet the Trump administration's attempts to erase the humanity of transgender people serves to pull back the curtain on the long history of Western myopia, wherein we mistakenly imagine ourselves as the primary and leading source of freedom around the world.

The truth is other countries are several steps ahead of us. In 2004, England passed the Gender Recognition Act to allow transgender people to change their legal gender. England was followed by Spain in 2007 and Uruguay in 2009. In 2012, Argentina passed what the New Yorker's Jonathan Blitzer dubbed "the most progressive gender-identity law in the world," allowing individuals to change their name or gender in public registries without a doctor or judge's approval and guaranteeing free access to hormones and gender-reassignment surgery. And, in 2015, Colombia passed a similar law that allowed citizens to change their legal name and gender marker by simply appearing before a notary public.

But European and Latin American countries aren't the only ones extending legal rights to transgender individuals. Just consider Pakistan, a country strongly influenced by its Islamic tradition. Last spring, its legislature passed the "Transgender Persons (Protection of Rights) Act." In doing so, Pakistan affirmed that it must respect "a person's innermost and individual sense of self as male, female or a blend of both, or neither; that can correspond or not to the sex assigned at birth."

The law allows citizens to have this identification recognized on all state documents, such as passports and drivers' licenses. What's more, the Pakistani government will be required to provide protection centers and safe houses for those who feel at risk, and trans citizens will have the right to inheritance, to run for office and to assembly.

In short, Pakistan is extending the full protection of rights to trans people as equal citizens.

Many of Pakistan's Muslim clerics have supported this legislation. Fifty signed a fatwa in 2016 in favor of trans people, declaring, "It is permissible for a transgender person with male indications on his body to marry a transgender person with female indications on her body. ... Also, normal men and women can also marry such transgender people..."

The clerics did not just note the permissibility of transgender people marrying in the fatwa, though. They also stated that discrimination or harassment of trans people was forbidden, noting, "Making noises at transgender people, making fun of them, teasing them, or thinking of them as inferior is against sharia law, because such an act amounts to objecting to one of Allah's creations, which is not correct."

How can an Islamic nation embrace such a law, with clerics openly issuing fatwas in favor of trans people? Well, for starters, they have a history of openness to a range of gender identities and expressions. For millennia, South Asia has recognized a group of people called the "khwaja sira." They are not, in our sense, trans. They are almost always born male but live as a "third gender" outside the binary of man and woman. Khwaja sira are a special class in society, often called upon to dance at celebrations, and at times thought of as having a mythical, almost sacred quality.

To be clear, khwaja sira rarely have an easy life. Though romanticized, they are typically entertainers -- and often sex workers. Many are underemployed, destitute and live in segregated, sometimes precarious communal settings. They cannot marry and are subject to scorn and ridicule.

The more "Western" category of "trans" has brought some advantages in its binary quality. If society is able to see you as man or a woman, then you can enjoy the rights granted to such positions, particularly heterosexual marriage.

Pakistan's new law is part of a global exchange of conceptualizations of gender identity, combining South Asia's social and cultural history with a western notion of binary gender. Pakistan's law preserves the sense of gender identity being "a blend of both" male and female. So, the khwaja sira can remain a third gender, but if others identify as trans, they can enjoy the rights and obligations of marriage. This reveals the openness, in this instance, of an overwhelmingly and officially Islamic nation, and its possibility of heralding rights that are currently not just unimaginable within United States politics, but with the prospective Trump administration rule, potentially impossible.

The extension of trans rights is a rare glimmer of hope within Pakistan's LGBT movement. Acts of sodomy, like adultery and sex outside marriage, are still illegal (though they are rarely punished). And, regardless of the law, gay and lesbian Pakistanis are often subject to violence by peers, strangers and even their family and the state.

Yet the "West" has hardly paved a path toward emancipation; Pakistan's first anti-sodomy law came not from its Islamic leaders, but from the British Raj. In the experience of many, Western encounters have often brought legal regulation and coercion, not freedoms and liberal reforms. Khwaja sira activists today continue to experience this concern, where global "trans" activism may be limiting their capacity to be, in the words of their new law, "a blend of both, or neither" gender.

The fact that Pakistan's law seems to Western eyes surprisingly progressive reflects how invested Americans are in a fantasy of being international leaders in LGBT rights. It also shows our lack of interest in this global exchange. Such blind arrogance has obscured how much we have fallen behind the rest of the world in important ways.

Here at home, many US states require a doctor's letter to change one's gender marker on a driver's license. Some states even continue to require doctor confirmation that someone has undergone gender reassignment surgery.

The Trump administration proposes further attacking these Americans by erasing their identities and thereby excluding them from federal protections. Americans must fight back. To do so, we might look East, to places like Pakistan, for guidance on how to protect our fellow Americans' right to exist.

Shamus Khan is professor and chair of the sociology department at Columbia University. Joss Greene is a Ph.D. candidate in the sociology department at Columbia University. The views expressed in this commentary are their own.

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