Types of criminalisation

  • Criminalises sex between men
  • Death penalty
Commonwealth member state
Penal Code 1860, S. 377 Unnatural Offences

Section 377, which originates from the Indian Penal Code that was imposed by the British colonial rulers, criminalises “carnal intercourse against the order of nature”, with a maximum penalty of life imprisonment. This provision applies only to sexual intercourse between men.1

Hudood Ordinance 1979, S. 4 Zina

Section 4 criminalises sexual intercourse outside of marriage, in accordance with Sharia law principles. As non-heterosexual marriages are not legally recognised in Pakistan, all same-sex sexual intercourse is necessarily outside of marriage and so captured by this provision. The penalty is death by stoning for married people, or 100 lashes for unmarried people.2

Enforcement

2017

The US Department of State Human Rights Report on Pakistan states that the Government rarely prosecuted cases against LGBT persons that year. However, prosecutions of LGBT persons have been reported (as described below).

2015

In its 2015 State-Sponsored Homophobia Report, ILGA stated: “we are not aware of contemporaneous evidence that consensual same-sex sexual activity has been targeted for the death penalty in… Pakistan.”

In June, Pakistan’s Express Tribune reported that police arrested two men in the Jaffarabad district of Balochistan after they allegedly carried out a “secret marriage.”[iv]

2013

In December, a TV reporter entered a couple’s house, accusing them of being gay. The news segment was filmed with phrases such as “[LGBT are] worthy of stoning” running over the top of the clip. The couple were arrested by police, although it is not known under what offence they were charged.

According to one article in August, a boy was arrested after being discovered having sex with another boy in a field. The boy’s family allegedly attempted to bribe the police, but the police would not accept the bribe. The same article claimed that whilst many arrests occur: “[i]n almost all cases charges will be dropped.”

2011

In November, the Immigration and Refugee Board of Canada, relying on information provided by the Neengar Society, suggested that in the city of Multan ten prosecutions took place under Section 377, two of which resulted in a ten year prison sentence for those convicted.

2010

43 people were arrested in May when the police suspected a gay marriage was taking place. One of those accused of getting married told police it was a birthday party.

Statements by Public Figures

2018

In July, Nayyab Ali, one of four transgender candidates standing in Pakistan’s general election, said to the BBC: “I realised that without political power and without being part of the country’s institutions, you cannot gain your rights.”

2015

In July, Hamza Ali Abbasi, a Pakistani actor followed by over 60,000 people on Facebook, declared himself “disappointed at people in Pakistan celebrating a behaviour that is taboo even in animals” and changed his profile picture to a rainbow flag with a red line across it.

2012

Zamir Akram, Former Pakistan Ambassador to the UN, wrote a letter to the UN Human Rights Council in February expressing concern over the “introduction” of sexual orientation in the 2012 General Assembly Resolution (17/19): “We are… disturbed at the attempt to focus on certain persons on the grounds of their abnormal sexual behaviour, while not focusing on the glaring instances of intolerance and discrimination in various parts of the world, be it on the basis of colour, race, gender or religion, to mention only a few… The OIC Member States are concerned that the Panel will discuss issues that relate to personal behaviour and preferences, and have nothing to do with fundamental human rights.

We are… disturbed at the attempt to focus on certain persons on the grounds of their abnormal sexual behaviour.

Zamir Akram, Former Pakistan Ambassador to the UN

Persecution and Discrimination

2017

The US Department of State Human Rights Report on Pakistan noted that violence and discrimination persisted against LGBT people with impunity as police generally refused to take action. For instance, in Karachi, Sindh Police were slow or reluctant to investigate crimes committed against transgender women, including two murders in August and two gang rapes in September. According to a range of LGBT NGOs and activists, society generally shunned transgender women, eunuchs, and intersex persons, collectively referred to as “hijras”, who often lived together in slum communities and survived by begging and dancing at carnivals and weddings, while others relied on prostitution.

The report also noted that transgender persons were often denied admission to schools and hospitals by local authorities, and landlords often refused to rent or sell property to them. Authorities often denied transgender individuals their share of inherited property.

2015

In July, some terror suspects in Karachi revealed in a police investigation that they wanted to kill homosexual persons and obscenity promoters in Pakistan. A lead suspect reportedly stated: “By killing the selected ones we wanted to make them a lesson for others who are bent upon making Pakistan a vulgar and obscene country and like the West, in most parts of which the homosexuality has been legalized.”

Three transgender women were murdered in a drive-by shooting on the evening of 8 May. Almas Bobby, President of the Shemale Foundation Pakistan – an organisation she started in 2004 to campaign for the rights of transgender people – told Pakistan’s Dawn News that “the attackers could be those who did not like the presence of transgenders in the locality.”

In April, armed men in Swabi reportedly abducted and gang-raped a trans woman after killing two others in a pre-dawn incident while a group of transgender persons were returning home after performing a music and dance show at a wedding party.

2014

In July, the UK Home Office’s Country Information and Guidance Document on Pakistan stated that: “Widespread and systematic discrimination against LGBT persons in Pakistan… persist[s], including harassment and violence… No effective protection is provided by the authorities.” The document also stated that: “Gay rights activists and other individuals who openly campaign for gay rights in Pakistan would be at real risk of persecution from societal actors.”

A group of men reportedly attacked and gang-raped a transgender woman in Karachi in May. Activists claimed police refused to conduct a thorough investigation despite having photographic evidence and contact information for one of the accused assailants.

In May, a Lahore paramedic confessed to killing three gay men whom he met online. Authorities suspended one senior officer allegedly involved in the attack, and the police department launched an investigation.

2013

A popular gay website was blocked in September, despite it containing no pornography. A spokesman of the PTA (Pakistan’s internet regulator) gave reasons for the censorship: “We blocked the website under the law because its content was against Islam and norms of Pakistani society.”

For the first time in the country’s history, several transgender women ran for public office in Pakistan’s May 2013 general elections.

2012

A qualitative study published in BMC International Health and Human Rights found that “the transgender community is socially excluded by Pakistani society which is leading them to indulge in commercial sex and putting their lives at risk.”

Legislative News

2018

Pakistan’s Parliament passed the Transgender Persons (Protection of Rights) Act in May. This bill grants the country’s transgender citizens fundamental rights. It allows people to choose their gender and to have that identity recognised on official documents, including national IDs, passports and driver’s licenses. The legislation prohibits discrimination in schools, at work, on public transport and while receiving medical care.

2017

During its third UPR cycle, Pakistan noted several recommendations both to decriminalise consensual same-sex relations and protect LGBT people from discrimination, while supporting a recommendation on the adopting of legislation to recognise and protect the rights of transgender persons.

2015

In March, Pakistan voted in favour of a failed Russian draft proposal at the UN General Assembly’s Fifth Committee (Administrative and Budgetary) that would have overturned the Secretary-General’s decision to extend UN staff benefits same-sex married couples.

2012

During its second UPR cycle, a recommendation to decriminalise non-marital consensual sex did not enjoy the support of Pakistan.

In September, the Supreme Court of Pakistan affirmed that transgender citizens should be given equal basic rights as all citizens, including employment and inheritance rights.

2011

In November, the Supreme Court of Pakistan ordered the Election Commission of Pakistan to collect data from the hirja community and register them as voters.

2009

In December, the Supreme Court of Pakistan ruled that the country’s hirja community should be issued with national identity cards showing their distinct gender.

Footnotes
1. Penal Code 1860, S. 377 Unnatural Offences

“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.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” Full text.

2. Hudood Ordinance 1979, S. 4 Zina

“4. Zina

A man and a woman are said to commit Zina if they wilfully have sexual intercourse without being married to each other.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina.

5. Zina liable to hadd

(1) Zina is zina liable to hadd if-

(a) it is committed by a man who is an adult and is not insane with a woman to whom he is not, and does not suspect himself to be married; or

(b) it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be, married.

(2) Whoever is guilty of Zina liable to hadd shall, subject to the provisions of this Ordinance, –

(a) if he or she is a muhsan, be stoned to death at a public place; or

(b) if he or she is not muhsan, be punished, at a public place; with whipping numbering one hundred stripes.

(3) No punishment under sub-section (2) shall be executed until it has been confirmed by the Court to which an appeal from the order of conviction lies; and if the punishment be of whipping; until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment.” Full text.

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