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Khaki v. Rawalpindi, Supreme Court of Pakistan (12 December 2009)

Procedural Posture

A constitutional petition was filed on behalf of hijras (also known as unix or eunuchs) before the Supreme Court. (Editorial Note: Hijra is a term used in South Asia to refer to individuals who adopt a feminine gender identity, including in clothing and roles. They are sometimes also referred to as a third gender.) The Court requested the provinces to submit detailed reports on the status of their eunuch populations. A working paper was drafted that discussed the need to protect the rights and welfare of hijra in light of the discrimination, stigma and exclusion they suffered. Specific problems were noted in the areas of inheritance, registration of identity, voting, employment, and schooling. The Court gave the provinces an opportunity to review the working paper and develop an implementation policy. In its judgment, the Court gave a status update on the working paper.

Domestic Law

Constitution of Pakistan, Article 22(4) (“Nothing in this article shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens”), and Article 25(1) (equal protection).

Reasoning of the Court

The Court began by addressing the right to inherit. Once a eunuch had been registered, the Social Welfare Department was required to ensure that the person’s family roots were tracked down and that they were afforded their share, if any, of the family inheritance.

Furthermore, whereas registration sheets previously had columns for only male or female, they were now to include a column for eunuchs, whose status was to be confirmed through unspecified medical tests. The Election Authority and the Social Welfare Department also agreed to work together to ensure that all registered eunuchs were entered into the voter lists.

The Court noted that no provisions were in place to ensure that eunuchs were admitted into schools; however, the provinces and the Social Welfare Department had assured the Court that steps were being taken for hijra admission and accommodation in educational institutions. This was especially important because the Constitution granted a basic and fundamental right to education under Article 22 read with Article 25.

Eunuchs had recently assisted with the administration of vaccinations, and the Court held that similar efforts to create respectable jobs should be extended to all provinces. It ordered a report from all provinces to this effect. The Court specifically referred to a system developed in the Indian State of Bihar, where: “[T]he Bihar government is trying out innovative ways to involve the eunuchs, also called kinnars or hijras, in socially useful work. It has successfully used the services of eunuchs to recover taxes from habitual defaulters in Patna. Now, the social welfare department plans to rehabilitate them – in a first such rehabilitation scheme for eunuchs. Bihar Social Welfare Minister Damodar [said] that the government would … ‘provide literacy and vocational training to prepare them for respectable regular employment’.”

Finally, the Court noted that the provinces had done nothing to protect eunuchs from harassment or prevent non-eunuchs from using the status falsely to commit crimes. The Court ordered law enforcement institutions to create mechanisms to prevent these problems from occurring.

The Court gave the various social welfare mechanisms one month to issue reports confirming their compliance with the order.

Khaki v. Rawalpindi, Supreme Court of Pakistan (full text of judgment, PDF)