Homosexuality/Bisexuality

In 2019, ILGA’s ‘State-Sponsored Homophobia’ report stated that Pakistan had been vocal at the UN Human Rights Council and other fora in its refusal to embrace SOGI within the scope of the various human rights treaty bodies, and in its promotion of the ‘traditional values of humankind’ resolutions at the Human Rights Council. Furthermore, it had rejected five out of the seven recommendations received at the Universal Periodic Review in 2017, including decriminalization of consensual same-sex sexual relations and taking measures to protect the LGBTQI+ community. Most recently, the parliament has rejected taking any action on the issue after receiving a request by gay men to have certain rights recognized.

The U.S. Department of State’s ‘Country Reports on Human Rights Practices’ (section 6) 2012 corroborates other news sources regarding societal attitudes and state enforcement of laws against homosexuality. That is, in practice, cases that fall within Article 377 of the Penal Code are rarely prosecuted. Systematic discrimination against LGBTQI+ persons is widespread but no definitive data exists. This may be due to the reluctance of sexual minorities to come forward in complaint of discrimination for fear of greater difficulties within their communities should they do so. According to LGBTI News and BBC the law is rarely enforced in the courts, but families tend to intervene to suppress the case without filing a complaint and force the concerned persons to marry.

According to Global AIDS Monitoring 2018, 2019 and 2020, men who have sex with men and a lesbian couple who announced their relationship in social media were arrested in some cases, although cases have not been traceable after the arrests took place. In prison, transgender women are sometimes forced to share cells with men, and get harassed by them. 

The Guardian stated families tend to consider it a “dishonor” to have homosexual or bisexual family members, and pressure them to get married and conform to the norms of Pakistan’s society, according to DFAT Country Information Report on Pakistan 2022. If their sexual orientation is known or they refuse, they might be forced to undergo medical treatment to losing their rights in the family, physical violence or even expulsion from the family.

Nevertheless, in larger cities like Lahore, Karachi and Islamabad, LGBTQI+ persons may be accepted by their closer relatives and friends, and might live as a couple, but will potentially be subjected to threats, violence or blackmail if the nature of their relationship is known.  Between 2015 and 2019, 66 trans people were killed in Khyber Pakhtunkhwa, one of Pakistan’s five regions, but no arrests were made. In general, perpetrators are not apprehended when cases of violence against the transgender community are registered with the police.

Activities organized in aid of highlighting the plight of LGBTQI+ persons in Pakistan stirred up significant opposition. The Muslim Youth Front(MYF) launched a campaign in Lahore in early 2012 and directed it primarily against two American organisations: GLIFAA (Gays and Lesbians in Foreign Affairs Agencies) and GLSEN (Lesbian and Straight Education Network). In 2011, a GLIFAA event was opposed by MYF, Jamaat-e-Islami and Jamaatud Dawa. These groups couch their rhetoric in terms of the ‘twin evils” of America and homosexuality, the former they see as having brought the latter over as an otherwise non-existent phenomenon in Pakistan.

 Transgender persons

Although transgender persons are recognized and granted rights by law, they still suffer violent attacks by other civilians. Especially targeted are activists on trans rights, for example Shama, who was sexually assaulted by nine men on January 17th, 2018 or activist Sonia, who was shot and injured.

The transgender or hijras community is still shunned and heavily excluded from society, and they often live together in a community making a living through artistic performances, begging and prostitution. Nonetheless, after passing the 2018 TPPR Act, transgender rights have been acknowledged, including them in more social programs and giving them public employment opportunities. Transgender candidates stood for election in the 2013, 2018 and 2019 rounds, and a transgender woman was appointed by the Minister for Human Rights for the first time in Pakistan’s history. And in 2020, a transgender woman represented Pakistan at the United Nations’ convention to end violence against women.

Pakistani police have, however, arrested transgender women based on them maintaining same-sex relationships and claiming they defied the order of nature as foreseen in the country’s constitution and penal code.

Iqbal v UK Immigration Asylum Chamber Appeal (2018)
Iqbal entered the UK in 2012 on a student visa and had later applied for leave to remain on the bases of his family and private life in 2015, but the request had been refused.
In 2017 he applied for an asylum request on the grounds that he was homosexual and that returning to Pakistan would place him at risk of persecution. His request was refused, and M. Iqbal appealed the request, but it was dismissed because the judge considered the application lacked overall credibility that the applicant was homosexual, especially considering that M. Iqbal had already applied for a permit to reside in the UK without claiming he needed protection because of his sexuality.
The appellant later lodged an application for permission to appeal based on an error in law, given that the judge had erred in his approach to the witness evidence and in the consideration given to the Asylum and Immigration Act 2004. However, the Appeal Court found there was not material error in law and upheld the original decision.

Unknown applicant v Italian Ministry of Interior (2013) 
A national Pakistani applied for international protection in Italy, based on the ground that he had been forced to flee Pakistan due to the threats from his boyfriend’s brothers, members of the Muslim League, because of his homosexuality. The application was refused by the Territorial Commission in 2012, but the applicant appealed before Tribunal.
The Tribunal considered the applicant’s claim credible and accepted the appeal under Article 1(a) of the 1951 Convention relating to the status of refugees, because of the existence of well-founded fear of persecution due to his sexual orientation. 

Matter of M-H-, Respondent, U.S. Department of Justice (2012)
The respondent (the asylum seeker) was denied asylum and withholding of removal on grounds that crimes he committed in America (consisting of sexual acts with minors) denied him these rights. The court reviewed the question of whether the crime must be an ‘aggravated felony’ in order to bar these rights (even when a claimant faces torture on refoulement). They concluded that Matter of N-A-M should be applied as the standard for evaluating when a claim for asylum may be barred on grounds of criminal conduct; the lesser threshold of ‘particularly serious crime’ was found to be the appropriate measure.

SZMDS v Minister for Immigration and Citizenship High Court of Australia (2010)
As with other rejections for asylum by the Australian courts, the claimant was not considered to be ‘homosexual enough’. Here the majority of the court agreed with the Refugee Review Tribunal and determined that the homosexual activities he had engaged in were unlikely to continue and that one trip to Pakistan and another to the UK both rebutted any claim for subjective fear of persecution in Pakistan. The High Court even went so far as to make a public announcement defending the decision. 

An asylum case of a transgender Pakistani was reconsidered without full hearing at the UK High Court in August 2009. Judge Mark Ockelton QC remarked that he had ‘real difficulty’ in understanding why the Pakistani national was still being litigated against by the home office. Due to the strength of the asylum seeker’s case, Ockelton cut the hearing short and dismissed the home office’s appeal.