AIN-O-SALISH Kendra Report on violation of Human Rights on Sexual Minorities: 2008

 

RIGHTS OF SEXUAL MINORITIES

 

It is difficult to assess the extent of rights violations against

sexual minorities and of state and non-state responses in any

year, given the paucity of reliable information. This chapter

therefore begins to articulate the rights of sexual minorities in

Bangladesh in mainstream human rights discourse by mapping

some of the problems faced by the MSM and Hijra communities.

As will be clear from the text below, the nature of available

data is not only limited but also highly gendered, the focus

has been almost entirely on male to male relations.

 

 

Overview

 

For a number of reasons, including cultural invisibility, a general

reluctance to discuss sexuality in the public sphere, and the

stigma attached to non-normative sexualities, information on

Sexual minorities in Bangladesh are quite limited. For that matter,

most human rights organizations, until very recently, have

not considered the subject of sexual rights to be an obvious part

of their mandate.

Problems of categorization complicate matters further. Non normative

sexual practices and identities tend to be quite fluid,

existing within a diverse continuum of sexualities, rather than

being discrete sources of identity.1 Sexuality may not be the

defining feature of identity; non-normative sexualities tend to

exist without being recognized openly or sanctioned culturally

(that is, they are accommodated but not necessarily named by

the dominant culture), and without being associated with a distinct

community or group. With the exception of self-identified

hijras (trans-gender or trans-sexual persons), social identity

and sexual practice do not necessarily coincide.

Paradoxically, the global HIV/AIDS pandemic in the 1980s,

and related anxieties about “high-risk” groups, opened up

spaces for discussion and activism around matters of sexuality.

Although the discourse tends to be somewhat medicalised, it

has increased both visibility and opportunities for mobilization.


 

Legal/Constitutional Protections


 

There is no express legal or constitutional recognition of non normative

sexualities in Bangladesh nor any specific protection

against discrimination for example on grounds of sexual orientation.

Section 377 of the Penal Code introduced by the British

in 1860, continues to be in force and provides punishment for

“carnal intercourse against the order of nature,” a phrase

widely interpreted as criminalizing sodomy. Ostensibly gender-neutral,

it is usually assumed to refer to men.

Notably, Bangladesh has a fairly progressive National Policy

on HIV/AIDs. Issued in 1997, the document upholds the

protection of the rights of persons affected with HIV/AIDS,

including rights to confidentiality and non-discrimination in

health care access and treatment.


 

Recognition of Identities


 

It can be argued that legal invisibility allows for a degree of

flexibility for sexual minorities. At the same time, for some

groups, legal non-recognition can be highly problematic at an

everyday level. Badhon, a community based organization representing

hijras, has demanded state recognition as a third gender,

and Government issued identity cards to affirm their separate

identity. Not being able to ‘prove’ a clear cut gender meant they

were not able to stand in either the male or female queues during

elections or for any other purpose. They also faced problems

with inheritance, as under personal laws, the shares for men and

women differ: as Hijras are not perceived to be either male or

female, and therefore neither son nor daughter, complications

arise with determining their share of inheritance.


 

Arbitrary Arrest and Detention


 

Although there has been only one reported case involving section

377 in the four decades since the independence of Bangladesh,

the existence of this offence is reportedly used by law enforcing

agencies and others to threaten and harass individuals,

and thus inhibit their free exercise of expression and behaviour.2

In fact, none of the cases reported by or to Bandhu (see below)

involved Section 377 directly, although the threat of arrest under

this law may have been invoked. More significant is the abuse of

Section 54 of Criminal Procedure Code and Section 86 of the

Dhaka Metropolitan Police Ordinance (and related provisions in

the police ordinances applicable to other Metropolitan cities)

which are commonly used to harass persons using public spaces.

Indeed, this situation is not very different from that of sex workers

and other socially marginalized groups detained under Section

54 without being shown any cause. And yet, while lawyers

and human rights groups are vocal about the perils of Sections

54 and 86, they have tended to be silent about the specific effects

of these provisions on this community.


 

Incidents of Violence and Harassment of MSM and Hijras


 

Table XXII, drawn from data collected by Bandhu, a support

service organization, indicates the nature of violence and harassment

faced by the MSM (and hijra) population. Underreporting

of such matters is widespread and, presumably, actual

figures are much higher.

 

Table XXII:1 Harassment and Violence on MSM of 2008 (till 16 July)

  

Perpetrator/

Type of Violence

  

 

Police

 

RAB

 

Gangstar

 

 Others

 

Family Members

 

 Total

 

Beating

 

 

   5

 

  

                  9          7              21

Beating and Snatching

 

 

 

  

 

      4

 

   

           4
Forced eviction 

 

  3

 

     1

 

      1

 

   

           5
 Forced sex     1

 

  

 

      1

 

  

 

    

     2
 Suicide        

 

    

 

  

 

      1

 

    1

  Total       9     1

  

         15

  

     1

  

     7

 

    33

 

 

 

 

Bandhu’s records show that physical assault or beating was the

primary form of violence experienced by MSM. Second to

physical violence was rape/forced sex, followed by forced eviction

from public spaces. The main perpetrators of violence are

local thugs or mastans, followed closely by members of law enforcement

agencies, primarily the police. Harassment by the local

population is relatively less common though not entirely absent.

In one reported incident, the taunts and reprimands of family

members resulted in the suicide of an individual.

The justifications for violence directed at the MSM population

signal the dangers MSM, hijras and others face on a daily

basis. An overwhelming majority were attacked for their “feminized”

behavior, that is, simply for challenging socially acceptable

norms of masculinity. Simultaneously, this also apparently

invited and legitimized forced sex or rape – refusing sexual offers

was the second most common reason given for assaults on MSM.

MSM and hijras are in a bind; for once they acknowledge

their sexuality, they appear to lose their right to refuse sexual

offers by overtly “heterosexual” men who feel entitled to the

formers’ sexual services. Extortion and intra-community violence

over the receipts of sex-work is also commonly reported.

Hijras, who are the most openly feminized, face considerable

discrimination in employment opportunities and for many, sexwork

is the most viable source of income since the barriers to

entry are minimal. Social, institutional and legal support for

MSM and hijras are inadequate at best. 3

 

BOX XXII.1: Harassment and Extortion (Names have been changed

to protect the identity of the persons involved

 

 

Anjan had inherited two decimals of land. His older brother, Amjad, put

pressure on Anjan to sell this land to him. Anjan refused at first but was

eventually coerced into signing away the land. After about a month, Amjad

came to Anjan’s house with a group of thugs and evicted his younger

brother and their mother from the premises. When they started to throw

out the furniture as well, local people gathered and protested the action.

Anjan came to Bandhu hoping it would be able to take legal steps to void

the agreement which he signed under duress. Bandhu offered to help Anjan

file a General Diary at the local police station. However, upon hearing

of Anjan’s contact with Bandhu, his older brother retracted from his

original position. He arranged for a mediation session facilitated by local

elites. In a written agreement handed over to his younger brother, Amjad

promised he would no longer pressure Anjan for the land.

While this is not a case of overt legal or social discrimination, it appears

that Amjad felt entitled to his brother’s land because the latter was

“feminized” and therefore not entitled to his legal rights as a male offspring


 

Conclusion


 

There is no research on the incidence of discrimination among

people with non-normative gender/sexual identities. Other than

hijras, the discrimination remains invisible and unstated.

 

1 See Adnan Hossain, Bangladesh Sexual Minorities Encyclopaedia entry and Sharful

Islam Khan et al, “MSM’s Sexual Relations with Women in Bangladesh” in

Culture, Health and Sexuality, March 2005 7(2) 159-169.

 

2 Najrana Imaan and ATM Morshed Alam, Review Paper Analyzing the Existing

Legal and Policy Provisions and Practices with respect to Human Rights in relation

to People Living with HIV/AIDs in Bangladesh, Unpublished paper, ASK

2008.

 

3 See reports on file at ASK received from Bandhu indicating that such requests

for legal assistance involved issues such as violence by a sexual partner, inheritance

claims and pressures for forced marriage.

____________________________________________________________________________________________

Comments by Ashok DEB:

For the first time Ain O Salish Kendra have included a separate chapter on the rights of sexual minorities in their annual Human Rights Report. This report is available on Chapter 22, Page 241-244 of Human Rights in Bangladesh, 2008, ASK publication. The editor accepts the severe constraints of high under-reporting of hate crimes and lack of reliable documentations have obstructed in depicting the actual scenario of antipathy towards the different homosexual communities of Bangladesh. This report is based on the data of human rights violation (till 16th June, 2008), provided by Bandhu Welfare Society, the only NGO which runs nationwide welfare programs for MSM and Hijra sex workers. Thus the report primarily focuses on the atrocities and unlawful persecutions committed on these two particular communities only, who are ironically the most visible of all the sexual minorities. A quicker glance on the table XXII yields that a massive third of these atrocities have been inflicted by the law enforcing agencies, while family rejection has driven one soul towards self destruction. It may be appropriate to justify that the actual figures could be presumably much higher as a larger percentage of such crimes goes un-reported.

The concluding words of the report are:

There is no research on the incidence of discrimination among

people with non-normative gender/sexual identities. Other than

hijras, the discrimination remains invisible and unstated.

 

Sadly this report fails to throw any light on the persecutions endured by the Gay and Lesbian community members in Bangladesh due to their cultural invisibility and reluctance to expose their bitter societal approbations towards public scrutiny. Still the gays are being forced into marriages, subjected to psychiatric remedies, electric shock treatments, social boycotts and even evictions from their neighborhoods. The LGBTI defenders who coordinate their activities even at the International level have confessed to conceal their sexuality within family circles. This invisibility has become an obvious setback to stage any resistance towards ending the Anti-sodomy law, hate crimes and discrimination on the sexual minorities. Recently BRAC has pioneered efforts towards meaningful discussions on ending Section 377 (Sodomy Law). Legalizing a harmless practice like Homosexuality and recognizing same sex unions continue to remain a distant dream , due to lack of consensus among the prominent LGBTI organizations over challenging the draconian Sodomy law in courts. The policy of the Government towards recognition of non-normative gender patterns coincides with this very statement of the UPR Report ,FEBRUARY ,2009 which quotes There is a culture of collective denial of the existence of same sex sexualities in Bangladesh a fact perhaps attributable to the dominance of Islamic religious sentiments.” In the recently concluded UNHRC, June 2009, the Government of Bangladesh has declared that ‘SEXUAL ORIENTATION IS INDEED NOT AN ISSUE IN OUR COUNTRY’ which can rightly be equated with by the parable of Ahmedinijad “THERE IS NO GAYS IN IRAN” Truly the ghosts of invisible persecution and blatant societal marginalization will continue to haunt us for times to come.

 

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Filed under Bandhu BSWS, Bangladesh persecution of Homosexuals, Bangladesh Trans Issues, Official reports and policy declarations

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