Bangladesh’s ‘third gender’ awaits legal protection

Following Pakistan’s example, Bangladesh must do more to safeguard the rights of its transgender citizens, writes Raisul Sourav

Bangladesh’s ‘third gender’ awaits legal protection
The Pakistani National Assembly has recently taken an incredibly historical decision by enacting the Transgender Persons (Protection of Rights) Act. This is a unique piece of legislation by which the legislators of Pakistan not only guaranteeing basic rights of the transgender people for the first time but also outlawing discrimination against them.

However, traditionally the exploitations against the transgender community in Bangladesh are not different from Pakistan. The saga of plights got legal status back in colonial period by the introduction of the Criminal Tribes Act 1871, which tagged the transgender people as genetically criminal. Consequently, it condemned their individual dignity and humbling them in social echelons which eventually encouraged their family to repudiate them. As a result, they started to do prostitution, blackmailing and other illegal means of earning for their survival. However, although the mentioned enactment was repealed in 1949, their livelihood, discrimination, neglect and oppression remain the same in this land.

Transgender citizens were added to voter lists in Bangladesh in 2009

However, Pakistan’s journey towards the official protection of the rights of the trans community and criminalising discrimination against them commenced in 2009 by the landmark Mohammad Aslam Khaki versus Senior Superintendent of Police (Operation) Rawalpindi and Others case. In the verdict, the Supreme Court of Pakistan ordered the Pakistani government to take effective measures to ensure protection of basic rights, including the right to education, inheritance, vote, marriage, registration of identity etc. for transsexuals. Consequently, Senator Babar Awan brought a private member’s bill to safeguard the basic rights of the transgender persons to the parliament in 2017.

The newly-introduced Act shows courage to accept the right to inheritance by a transgender person which was often disputed under some debated religious interpretation. Now, finally they can claim their share of property from their ancestors according to their own perceived gender identity. This provision has resolved a major issue which will ultimately make them financially solvent and build relationships with their families.

The said law also allows the right to self-identity as male, female or a blend of both or neither and to have that identity in official documents like passports, national identity cards and the Act describes ‘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.’ Furthermore, it confirms their voting right in all national, provincial and local elections.
Being a sexual minority, the legal position of the transgender community is highly vulnerable in Bangladesh

It forbids all sorts of discrimination against transgender persons in educational institutions, occupations, transportation services, employment, access to public amenities, residences, health care, movement, public office and custody. Moreover, this piece of legislation ensures fair and equal opportunity in all public and private employment and prohibits discrimination on the ground of gender identity only. Additionally, it obliges all establishments to appoint an officer to address the grievance(s) raised by trans people.

Further, the Transgender Persons (Protection of Rights) Act has provision on access to proper medical care and review of medical curriculum regarding the transgender and inclusive education, scope of self-employment and vocational training for this community. Also, it obliges the government to rescue, protect rehabilitate and build safe house for transgender citizens who feel at risk and give psychological counselling to those who require it. In addition, it says to arrange separate rooms in jails for transgender offenders. This Act also stipulates punishment for sexual and physical violence against the transgender citizens, denial of access to public places, forceful eviction from living spaces, endangering lives, health and safety of transgender citizens.

Being a sexual minority, the legal position of the transgender community is highly vulnerable in Bangladesh, although they were added in voter lists in 2009 and in 2013, the government has recognised them as ‘third gender’ category. They are also eligible to get passports according to their third gender identity. Nevertheless, the tag ‘third gender’ is still a huge burden to carry. We often hear of complaints from trans people that they are being denied access to public places like toilets, schools and hospitals due to their sexual identity. They are facing endless harassments in their daily life, that do not end even after their death as often people refuse to bury them in the graveyards with men and women.

A transgender citizen in Bangladesh cannot imagine their right to property as there exist misleading interpretations of religious rules regarding the distribution of inheritance and adverse interests of their socially established co-sharers. Pakistan, a more conservative society, has taken such an illustrative initiative to eliminate discrimination and ensure equality but Bangladesh remains silent about rights of the transgender community as citizens of the country.

Bangladesh should not wait any longer to protect basic rights of this marginal community. The constitution guarantees equality before law under Article 27 and prohibits any discrimination only on the grounds of sex, gender, race, place of birth, religion under Article 28.

Bangladesh should enact a holistic piece of legislation giving full equality, freedom and rights to transgender people and criminalise all kinds of discrimination and exploitation against them. We dream of a Sonar Bangla where everybody is treated as equal and none is subject to any kind of social exploitation.

The author is a Chevening Scholar 2017/18 and currently pursuing his second LLM in International Energy Law and Policy at the University of Stirling, UK.