Since the enactment of The Transgender Persons (Protection of Rights) Act in 2018 by the Parliament of Pakistan, the historically criminalised and discriminated transgender community has gained legal and social visibility although the enforcement of their rights lacks effectiveness due to key criminal, judicial and administrative limitations. These challenges have increased during the COVID pandemic when the trans community have faced new forms of violence and discrimination against them while access to administrative remedies and to justice have become even more difficult to obtain than in pre-COVID times, forcing them to go back to the limited protection of informal networks. In the post-COVID world, the resultant social, economic, educational and healthcare divide will be wider than before, making the design and implementation of new holistic measures for a real enforcement of equality and non-discrimination as granted in The Transgender Persons Act a crucial matter.
The ‘tyranny of the majority’ problem is a longstanding issue in constitutional theory concerned with majority oppression of minorities in democracies. This paper argues that new minorities — groups that switch from being in the majority to in the minority — present a particular set of challenges for the problem. First, they disrupt typical understandings of what constitutes ‘tyranny’ and what constitutes ‘the majority’. Second, they challenge the attraction of the two most common constitutional responses to the problem — rights and structures.
The paper illustrates this challenge by reference to Australia’s COVID-19 measures. In response to the pandemic, Australia shut its international border, effectively leaving tens of thousands of citizens stranded overseas. A new minority was created that was unlikely to have been protected by rights (because any limitations were arguably justifiable) or structures (because they are suited to entrenched minorities). The paper argues, however, that greater state capacity might have ameliorated the situation, suggesting it may be a third constitutional response to the tyranny of the majority problem.
This work analyses the data collection technologies used in the response to the COVID-19 pandemic, as a thermometer of the democratic exercise of fundamental rights. From Judith Butler’s theoretical contribution on precarious condition, it problematizes the differential allocation of these measures’ impact, considering ethical, legal, and technical challenges. A range of experiences based on the use of technologies for large data collection is on course in the response to the pandemic, as monitoring quarantined people through geolocation data and contact tracing by using smartphones data. By detailing them and analyzing hard cases, this paper seeks to demonstrate the lack of proportionality in the measures that have been taken as naturalized responses to the crisis, especially when it concerns fundamental rights of vulnerable groups. The conclusion points to the need for building alternatives more sensitive to the distinct layers of vulnerability to which people are submitted.
The Pandemic caused by Covid 19 – like every emergency moment- has taken the inequalities to an extreme. The protection of women’s health, as well as equal treatment at work and in the times of life, has not been completed.
Is it still time for positive action? Or should the principle of equality be rethought following other ways? Is it enough to apply a genre principle of proportionality?
Public law must take charge of a rethinking of guarantees and promote the protection of life of times as a right to the well-being and full development of the human person, dignity or the right to happiness, which are contained in many Constitutions and which represent the key to once for this new and perhaps more effective gender protection: treating different questions in a different way, but protecting everyone so that they reach the full development of their potential. The core of the protection must focus on the relationship between equality and difference, this is the challenge.
The pandemic has imposed a series of consequences for various sectors, be they economic, health, political or social, as well as an emergency regime at all levels of the Democratic State under the rule of law. The concept of vulnerability is constituted as a legal and political phenomenon, it also encompasses victimization, fragilities and citizen contingencies and their families face in the trajectory of their life cycle, due to social impositions, devolutions and policies. The reasoning must be comprehensive, insofar as it must be pursued taking into account the development (as premises that structure the concept), as well as the dispositive parts (an example of the relevant sentences that affect it). The privilege, the power and the capacity of the most powerful must be precisely combated, insofar as it legitimizes by difference, and erodes through the vulnerability of the weakest.