Being a Sexual Minority in Bangladesh: Finding protection in a paradoxical legal system

12-11-2015

Human rights defenders have reported pervasive human rights violations against sexual and gender minorities. These violations have ranged from verbal abuse and physical assault to sexual harassment and property disputes. One of the roots of the problems lies on the Penal Code of Bangladesh Section 377. The Penal Code prohibits carnal intercourse ‘against the order of nature’ and it authorizes law enforcement agencies to arrest people who commit these ‘unnatural offences’. In practice, it has been misused to harass sexual minorities.

Although there has been no case tried under the Penal Code to date, the code’s existence is not only misleading, but also distracting from other major challenges,[1] which are:

There is no law that specifically protects sexual minority groups against abusive treatment. For instance, sexual and gender minorities who working as sex workers are more vulnerable as there is no law to penalize ‘male-to-male’ rape.[2] Rape is still defined ‘within a peno-vaginal framework and is understood to be an exclusively heterosexual phenomenon both culturally and legally’.[3] Based on such situation, Amnesty International reported that it is unlikely for gay men who are victims of violence or under threats to seek protection from the Government. In fact, such a request could potentially be interpreted as a confession to a possible criminal offence.[4]

  • On March 24th, 2014, Jahangir, a male sex worker, , was picked up by his client from his working location. It was agreed that Jahangir would get paid after the service he provided. However, after the service, his client refused to pay Jahangir. Instead, the client forced Jahangir to have sex with him, beat him up, and extorted some money from him. As there is no legal protection for such situation, the victim was unable to file a report to the local police, while the law enforcement agency themselves did not take any necessary measures to address this issue.

As mentioned above, section 377 has not been enforced.[5] The law has contributed to higher possibilities for the law enforcement agencies to use section 377 as a harassment tool against people from marginalised community. “It has impeded the LGBT community’s access to justice and ability to seek protection from law enforcement, due to the threats of prosecution under section 377.”[6] Additionally, most violations against these minorities go unreported as many of the victims are afraid that filing a case would turn against them. Several cases show the vulnerability of minorities within the current system:

  • On May 4th, 2014, a Hijra woman was verbally abused and physically assaulted by two other members of the Hijra community after she refused their offer to work with them as a sex worker. She was tied up with a rope and beaten. However, she did not file the incident at the local police station. She instead sought help from a local NGO that eventually was able to resolve the issue.

  • On August 19th, 2014, a Hijra woman was beaten up by the local police in Sylhet after the police caught her urinating around the police force residence. 

Additionally, most of the cases of human rights violations of Hijra, MSM[7] and effeminate males who self-identified as Kothi that we received from our partner in the field are not registered with the local police. The inadequate legal protections and strong stigmatization from the Bangladeshi society have created national laws that conflict with internationally accepted human, gender, and sexual rights.[8]

National protection mechanisms and relevant conventions signed by Bangladesh

Bangladesh itself has ratified several international human rights conventions, like the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention of the Elimination of All Forms of Discrimination against Women. Furthermore, the Constitution of Bangladesh provides legal protection for every citizen, As in Part II, Article 19, it guarantees equal opportunities to all citizens and Part III, Article 27 also guarantees equality before the law to all citizens.

In 2009, the National Human Rights Commission (NHRC) of Bangladesh was founded under the National Human Rights Commission Act 2009.  Bangladesh NHRC is an independent statutory body, a national advocacy body for the promotion and protection of human rights.[9] In the first year of its establishment, the NHRC has filed more than 250 cases of human rights violations and worked with related authorities to address these violations.[10]

Additionally, in 2013 the Government made a statement to officially recognize has the transgender Hijra population as Bangladeshi’s third gender. This new government policy will allow Hijra to identify themselves in all official documents, including passports, as a third gender. However the Government has yet to introduce the legislation.[11]

Actions to be taken

It is essential for the government to address the paradoxes in its legal system The Government has to repeal Penal Code Section 377 and introduce legislations that protect and promote the human rights of sexual and gender minorities in Bangladesh. It also needs to further deliberate the recommendations on the 4th Round of the Universal Periodic Review. For instance, in regard to the issue of male-to-male rape, it is important that the government formulate a separate law addressing this issue specifically.[12]

Under the Bangladeshi legal system, there are no anti-discrimination laws on the grounds of sexual orientation and gender identity, which means there is no specific protection against the discrimination of sexual and gender minorities.[13] However, the advocacy of human rights defenders significantly impacts the lives of gender and sexual minorities. Therefore, it is important that LGBT activists in Bangladesh are integrated into the wider social movement sector in Bangladesh to increase awareness and improve legal protections for sexual and gender minorities.

For more information please contact: Naz Tuncay, Human Rights Officer, ntuncay@ghrd.org


[2] UPR Info, Sexual Rights Initiatives, ‘Report on Bangladesh – 4th Round of the Universal Periodic Review – February 2009’, para. 15, p. 3, available at (http://sexualrightsinitiative.com/wp-content/uploads/Bangladesh-UPR-4.pdf), last accessed 20 October 2015

[3] Ibid

[4] Amnesty International, Correspondence from the Refugee Coordinator providing information from a Bangladeshi researcher with the South Asian team of the International Secretariat of AI, Toronto 5 March 2010. See also National Human Rights Commission Bangladesh, ‘Report to the Regional National Human Rights Institutions Project on Inclusion, the Right to Health and Sexual Orientation and Gender Identity’, 11 October 2012, p. 6, (http://www.asia-pacific.undp.org/content/dam/rbap/docs/Research%20&%20Publications/hiv_aids/rbap-hhd-2013-nhri-project-on-right-to-health-sogi-bangladesh.pdf), last accessed 20 October 2015

[5] Bandhu Social Welfare Society, A Study into the life situation of Sexual Minority (Lesbian, Gay, Bisexual, Kothi and Transgender), p. 21

[6] The Invisible Minority: The situation of LGBT community in Bangladesh, http://www.ghrd.org/fileadmin/user_upload/LGBT_Report_2015.pdf, p.12

[7] The term MSM is widely used in the HIV sector for men/males who have sex with men/males, instead of using the term ‘gay’ to describe homosexual or bisexual men. See National Human Rights Commission Bangladesh, ‘Report to the Regional National Human Rights Institutions Project on Inclusion, the Right to Health and Sexual Orientation and Gender Identity’, 11 October 2012, p. 4, (http://www.asia-pacific.undp.org/content/dam/rbap/docs/Research%20&%20Publications/hiv_aids/rbap-hhd-2013-nhri-project-on-right-to-health-sogi-bangladesh.pdf)

[8] S. O. Wolf, ibid, p. 3

[9] National Human Rights Commission Bangladesh, ‘About NHRC’, (http://www.nhrc.org.bd/About_NHRC.html), last accessed 19 October 2015

[10] UNDP, ‘Bangladesh National Human Rights Commission: What is the Project About?’, (http://www.undp.org/content/bangladesh/en/home/operations/projects/democratic_governance/bangladesh-national-human-rights-commission.html), last accessed 19 October 2015

[11] Bandhu Social Walfare Society, ‘Third Gender is not a word, it is a Gender’, 7 June 2015, (http://www.bandhu-bd.org/third-gender-is-not-a-word-it-is-a-gender/), last accessed 19 October 2015

[12] UPR Info, Sexual Rights Initiatives, ‘Report on Bangladesh – 4th Round of the Universal Periodic Review – February 2009’, para. 16 p. 3, available at (http://sexualrightsinitiative.com/wp-content/uploads/Bangladesh-UPR-4.pdf)

[13] Ain o Salish Kendra (ASK), ‘Human Rights in Bangladesh 2008 – English’, p. 242, available at (http://www.askbd.org/hr_report2008/22_Sexual.pdf), last accessed 20 October 2015

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