Never Ending and Ever-expanding Discrimination against the Trans Community: Active Decolonization is the Way Forward

Abstract

“Gender must be decolonized and Decolonization must be gendered.”

Over the course of this write up, I call attention to the crucial need for active decolonization in Bangladesh. Because it is the best way forward for rightfully and safely advancing transgender rights in the country. I did so by analyzing the socioeconomic status, pointing out the seeding stressors of the situation, revisiting the histories of Trans community and suppression of their rights through colonialism, followed by a critique of the existing legal framework and suggestive opportunities for the Trans communityespecially during this pandemic. I have followed socio-legal research approach in two methodological spectrums: On one end, self-informed analysis of legislations and judicial decisions are penned adhering to the doctrinal analysis and on the other end, contextual analysis isgivenusing the information collected from the secondary sources.

 

What it means to be a Transgender

Trans or Transgender is the umbrella term for people having non-binary gender identities. Transgenders come from all walks of life. They can be our brothers, sisters, sons, daughters, parents, coworkers or neighbors. They belong to a diverse community, coming from all racial, ethnic, religious and faith backgrounds. They have existed in every culture throughout the recorded history. But how many of us personally know any of them?It’s tragic that the number of such people is quite few.They are everywhere yet we lack the eyes to both look for & look out for them.  An estimated10,000(registered) to half a million (activists claim this to be the actual number) of Bangladesh’s population belong to the Transgender or Hijra community[2]. Due to limited amount of studies that attempt to measure the Trans population, suggestive research estimates are likely to be conservative and non-exhaustive.

It’s almost impossible to put into words what it means to be a transgender althoughconsiderable attempts have been made over the years. This community is incredibly diverse and sometimes operates outside the spectrum of what we understand gender to be. Even so they are a lot like cis-gender (non-transgender) people in many ways. But the social stigma that we inherited in the colonial times creates massive challenges for them every single day.This colonial mindset drives people to create this systematic inequality consequently pushing them to doubt their right to exist.

 

How the Contemporary Society views them

In Bangladesh it’s a curious scene in local shops, markets or hat Bazaar when a group of Hijra comes begging for alms. The merchants or shopkeepers respond quickly to their silent demands due to the threat of abuse that comes along with begging. In the rural and suburban area when a child is born or there’s a marriage festival, Hijras show up for dancing; demanding money in return. As a result, trans phobia and lots of misconceptions prevail about them. Often they are considered just male prostitutes or immoral individuals. Clearly they are treated as an unfortunate misfit having an alternative social role[3]. Another common excuse for not treating them well is the immense poverty existing in Bangladesh. Whenever it comes to their rights and protection, some survey or existing crisisin the form of ‘whataboutism[4] such as “one in five people live below the poverty line in our country[5]” will come up. They are viewed as a disgrace to the society. Even researchers who claim to pay serious attention towards this issue neglect taking this as a serious subject of scholarship. Their history of turmoil and oppression is so old that some may think this was always the case. Surprisingly, it was NOT. It is only the expansion of colonial mindset the British left us with.From our position of growing up in a patriarchal and colonial nation, we cannot fully imagine how a world that is not based on structures of oppression might operate. Nevertheless, we can be part of the collective process of decolonization that can push us towards a society that isn’t based on domination.

A Brief Reminder of the Challenges

 

There is existing literature on history of transgender or third gender, their social status, marginalization, violence and discrimination against the transgender community. But there’s not much on their mental & sexual health, Healthcare (their sexual plurality often comes with numerous physical complexities that require expert attention of Sexology) and the reasons for people’s mindset about this community. Still a brief reference to the challenges a trans person faces in everyday life should be mentioned. Starting from social stigma, harassment and discrimination at every possible sector of life, coming out with disclosure and then getting thrown out of the family, isolating themselves from a society that is dismissive of them, struggling to fight extreme poverty while unwillingly engaging themselves in begging alms, sex work or drug business, exposing themselves to HIV or other deadly diseases, having complex sexual health yet lacking healthcare, confused about their actual sexual identity: Adam or Eve?, being mocked and abused instead of receiving so called ‘legal protection’, confronting violence while being broken by the world, to living as an unfortunate misfit, do they get to own the Ministry of Utmost Happiness?

 

From Namelessness to Calling Names

When people give a newborn girl or boy a name, they also assign them their subjective gender roles. Babies, whose bodies do not cleanly fit into the typical binary setup, are given an innocent gender identity to avoid being pointed as bearer of ‘incorrect’ or ‘abnormal’ gender orientation. This namelessness or the lack of names that reassert individual autonomy can often seem empowering and daunting from a cursory look at the situation. But the actual dilemma begins when Adam and Eve decide to show up as Madam and Steve.Almost every single civilization that came to be has used myriads of words to name such non-binary entities.Early in the 12th century the term ‘androgyne’ was first used to describe someone having traditional male and female roles obscured or reversed[6].  German Sexologist Magnus Hirshchfield coined the term Transvestite[7] (someone who wears clothes designed for the opposite sex) in 1910. Other terms to use carefully in respect of the Trans community originated indifferent timeline mostly in the 20th century;Transsexual[8](Opposite gender identity of the gender identified at birth) in 1949, Transgender[9] (synonymous to Transsexual) in 1971, Trans, used to refer to Transgender or Transsexual community at large, in 1892[10]. Hijra, kothi, Aravanior Chhakka[11] used in the Indian subcontinent originated during the colonialization period is still on play. In countries like Bangladesh, Pakistan, Nepal or India people call these names or alternative local names that loosely mean ‘fag’, ‘sissy’, ‘odd’, ‘abnormal’or ‘unwanted’with disgust, mockery or apathy. This journey from namelessness to calling names actively controls how they behave. This would be discussed broadly in a later section of this article.

 

Revisiting the need for Active Decolonization

What is the relationship between gender, race and colonialization?To begin with colonialism is closely tied with some twin phenomena: Racism and Sexism. In the context of South Asian region, the colonial norms and practices is controlling the mindset of people to this day. Out of the fear of sexual immorality, the colonial states enacted some laws to criminalize certain tribes categorized outside conventional male female role. These laws were presented as a measure to prevent sexual immorality and establish peace and sanity within the colonies. But in reality they were tools of power and control. The actual motive was to subdue and divide the subjects because lack of solidarity paves the way for autocracy.

Thomas Babington Macaulay as the Chair of first Law Commission led the enactment of the Indian Penal Code (IPC), 1860. He was a firm believer of Victorian Christian morality and Section 377 of the IPC was a reflection of his own values part of which was strict Anglo-centric understanding of gender and sexuality[12].  People did not resist to this because of the implication that this section did not explicitly criminalized sexuality rather prohibited Anti-English sexual behavior[13]. But the problem arose due to the existence of non-binary groups like Hijra or Kothi who could easily escape the remit of this section[14]. Their identity did not focus solely on ‘carnal desire’ and could legally be outside this criminalization. So Macaulay decided to invoke religious freedom in the name of bigotry and enacted the Criminal Tribes Act, 1871 to condemn groups like the Hirja and Kothi as being immoral and corrupt. India and Bengal was targeted respectively for having a culture inclusive of transvestite and lacking gender specific pronouns!

After all these years of decolonization, the Trans community could not rise above the status the British Kingdom placed them into. Because in the post-colonial era, people still mirrornorms and values depicted as the colonial legacies[15]. Funny thing is, social norms in colonizing states have changed in the past few decades but the South Asian countries continue to dance with those alien colonial legacies.

Rise of Fundamentalism as opposed to religious freedom

Fundamentalism refers to strict adherence to the fundamental principles of certain subjects or disciplines[16].  This concept cannot be limited to religion and must be defined rather expansively. The history of most of the South Asian Countries is linked by a strong nexus between religion, patriarchy and nationalism. Foreign powers be it Mughal or British that moved into the region came up with respective religious goals in mind. This gave birth to an opportune environment for planting the seeds of fundamentalism. As a result religious fundamentalism is on the rise creatingprejudice against transgender people. Transgender people are prejudice targets because they are considered to be “value violating[17]”. One of the shocking outcomes of religious fundamentalism is weaponizing and abusing scripture to justify bigotry. There is nothing holy about denyinga person’s human rights on the grounds of who they are, what their identity is. Writing discrimination into law and rejecting a kid from family is not the rationale for what religion came to exist in the first place. Therefore, people have to stop advancing the idea that religion and faith is about exclusion. Because it is NOT what a religion offers.

Existing Legal Framework in Bangladesh

Bangladesh Government officially announced Transgender as the third gender on January 26, 2014. This decision resulted in recognizing a range of human rights of the Hijra community. This put them in the same position of a normal citizen of Bangladesh. It entitles them to enjoy the constitutional rights every citizen enjoys including equal protection of law[18] and no discrimination on the ground of their identity[19]. In 2019, the Election Commission amended the Voter List Act 2009 and the Voter List Rules 2012 and has included a third option alongside male and female, under the gender identity section of the voters list[20]. They can now vote with the recognition of their actual identity.

Even before their recognition as third gender, Bangladesh took steps to ensure their basic rights. In 2012, Department of Social Welfare offered stipends and job readiness training for hijra students through a small pilot program. Over the years the program expanded its ambit andreached 64 districts[21].

Although this official recognition deserves appreciation, it took Bangladesh almost four decades since its independence to do so. A single sentence was used in the gazette for this recognition: “The Government of Bangladesh has recognized the Hijra community of Bangladesh as a Hijra sex.[22]” The circular was implemented by certain officials who acted on their personal view of Hijrahood which exposed the community to further abuse during their required medical examination.The absence of guidelines as to who would be qualified as Hijra and society’s disgraceful attitude towards the Hijra community exposed them to further abuse. The truth is Bangladesh took isolated initiatives to solve a problem that requires prolonged endeavor and a range of long term actions. However, some legislative or judicial clarification is still crucial for safeguarding the fundamental rights of the transgender community.

 

Policy Recommendations:

Following the advances made in other South Asian countries on third gender rights, Bangladesh announced legal recognition of Trans community. This includes Nepal and Pakistan Supreme Court judgments respectively in 2007 and 2009. Therefore, it’s reasonable to have a look at further policy advancements they have made in this particular sector:

Nepal:

  1. In 2007, recognized third gender and the opinions of medical professionals or Courts won’t decide who a transgender is rather the transgender himself/herself will decide the gender marker based on “Self-feeling[23].
  2. In 2011, Nepal added the third gender category to its national census[24].
  3. Since 2015 Nepali transgender citizens can successfully travel abroad with a passport that offers a separate category for other gender marked “O” (rather than “M” or “F”)[25].
  4. In 2015, Nepal adopted a new constitution that reads at article 18 states that State shall make special provisions for the protection empowerment or advancement of the gender and sexual minorities. Article 12 guarantees a citizenship certificate “based on lineage and gender identity[26].”

India:

  1. In 2014, Indian Supreme Court recognized third gender and declared that it is not a social or medical issue rather a human rights issue[27].
  2. The Court confirmed that undertaking medical procedure is not a legal requirement for recognition of their gender identity[28].
  3. On the case of ShivaniBhat v. State of NCT of Delhi and Ors (October 5, 2015) the Delhi High Court reinforced the ruling, emphasizing that gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom[29].
  4. On July 2017, breaking all barriers JoyitaMondol became the first transgender Judge[30]. Moreover, the country’s first university for transgender community is to be opened in Uttar Pradesh[31].

Pakistan:

  1. In Khaki, A vs Senior Superintendent of Police, Supreme Court of Pakistan (2009) case Pakistan’s Supreme Court recognized the rights of transgender people. The judgment entaileddifferent guidelines for the law enforcement agency for better coordination with the Hijra community[32].
  2. The court ordered provincial governments to submit reports on conditions facing transgender people in the provinces, instructed authorities to include transgender people in voter lists and to give adequate protection to their inheritance rights. The court also directed the relevant authorities to ensure their right to basic education, employment, and protection[33].

In all three countries, Supreme Court was the Battleground for the enforcement of Trans-rights. But in 2013, Bangladesh chose a pioneering approach. In a cabinet presided by Prime Minister Sheikh Hasina, recognizedHijras as third genders for the purposes of Government identifications and certain legal requirements[34].A critical look at the advancements other South Asian nations made, clarifies the missing role of Bangladesh. It is high time Bangladesh acted on the necessary policy recommendations. Instead of showing slugginess in policy making Bangladesh should immediately take into account the suggested recommendations:

  1. Active Decolonization Movement is to be advanced in all sectors possible specifically in the education sector. A society inclusive of the Trans community can offer them a secure and amicable environment for learning while reforming a society, making it free from colonial ghosts, building public opinion and awareness.

 

  1. A rights-based legal recognition procedure should be drafted. This process should be simple, transparent, respectful and consistent with the Yogyakarta Principles[35]. Medical intervention should not be a legal requirement in determining their identity rather ‘self-feeling” should be the only criteria for this purpose[36].
  2. The judiciary can play an authoritative role by advancinggender identity and sexual orientation declaring them fundamental to the right of self-determination, dignity and freedom[37].
  3. The process of identifying themselves as third gender on all legal documents such as passports, National ID cards, educational certificates, and so on should be made easier for this community given theirlack of accessibility[38].
  4. Attempts should be made to bring Bangladesh’s medical curriculum and transgender healthcare standards in line with global best practices by consulting with national and international health experts, including the World Professional Association of Transgender Health[39].
  5. This pandemic has left the community with more turmoil and suffering. Government should take immediate steps to ensure trans-inclusive workplace by creating employment opportunities for now and always. This also calls for developing sensitivity training for all staff working with Hijra community[40].
  6. While framing policies taking the opinions of transgender communityis a must as it affects them. Government should Fund programs like peer education and vocational training for transgender common.
  7. The protection ofRape laws should be extended to transgender people and men by recognizing multiple dimensions of rape and sexual assault going beyond physical acts.
  8. More research should be done on mental, physical and sexual health of the Hijras.

 

This bulk of recommendation will only fail if not understood and implemented likewise. Given the amount of humiliation the Hijra community tolerating it’s only natural they will become hostile, violent and debased.

 

Final Thoughts:

“Hurts not transformed are always transferred[41]”.

Mr. NiketuIralu

The history of Trans community is one of discrimination, sufferings and God-forsaken legacy. The amount of hurt inflicted upon them over the past centuries needs to be healed first; only then any other attempt will bring light. Besides ensuring their basic human rights and dignity, honest dialogues and conversations should be arranged to build a bridge of trust and mutual respect. The need for active decolonization comes as a perfect fit to serve this purpose. A social contract based on empathy and inclusion can result in celebration of the harmless cultural rainbow Transgender community offers.

Nelson Mandela once said that a nation should be judged by how it treats its lowest citizens not its higher ones. This alone proves how futile Bangladesh’s role has been in establishing the rights of the Trans community. The non-exhaustive laws and order on the subject can’t bring any change ratherit’s time they change the fate of Hijras by doing everything they can whether they are willing or not. Lastly, the Hijras of this region should stop accepting this inhuman standard of living and carve out niches for a dignified life. They should know their cultural diversity, transvestism and gender identity will be celebrated in the coming days only if they cooperate a little more. Together we can make this world a place worth living!

writer

Mohsena Akter Drishty

student at Department of Law, University of Chittagong.

 

 

[1] Kiera L. Ladner Associate Professor and Canada Research Chair in Indigenous Politics and Governance Department of Political Studies University of Manitoba

[2]Dhaka Tribune (2018) Transgender community celebrates recognition date. 

[3] Preston, Laurence. (1987). A Right to Exist: Eunuchs and the State in Nineteenth-Century India. Modern Asian Studies. 21. 371 – 387. 10.1017/S0026749X00013858.

[4]https://www.merriam-webster.com/words-at-play/whataboutism-origin-meaning

[5]Aljazeera News, Bangladesh: One in five people live below poverty line; How some people are surviving on less than $5 a day in Bangladesh. Published on 26th January, 2020.

 

[6]https://www.merriam-webster.com/dictionary/androgyne

[7]https://www.merriam-webster.com/dictionary/Transvestite

[8]https://www.merriam-webster.com/dictionary/Transsexual

[9]https://www.merriam-webster.com/dictionary/Transgender

[10]https://www.merriam-webster.com/dictionary/Trans

[11]AarefaJohari, Scroll.in. Hijra, kothi, aravani: a quick guide to transgender terminology. Published on April 17, 2014.

 

[12]Human Rights Watch. (2008). This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism.

[13]Ibtisam Ahmed, E-International Relations, Decolonising Queer Bangladesh: Neoliberalism Against LGBTQ+ Emancipation. Published on August 16, 2019.

[14]Baudh, Sumit. 2013. “Decriminalisation of Consensual Same-Sex Sexual Acts in the South Asian Commonwealth: Struggles in Context,”

[15]Sood , N. (2009). Transgender People’s Access to Sexual Health and Rights: A Study of Law and Policy in 12 Asian Countries. Kuala Lumpur, Malaysia: The Asian-Pacific Resource and Research Centre for Women (ARROW).

[16] https://www.dictionary.com/browse/fundamentalism

[17]Marianne Campbell, Jordan D. X. Hinton & Joel R. Anderson (2019) A systematic review of the relationship between religion and attitudes toward transgender and gender-variant people, International Journal of Transgenderism, 20:1, 21-38, DOI: 10.1080/15532739.2018.1545149

 

[18]Article 27, Constitution of the People’s Republic of Bangladesh.

[19]Article 28, Constitution of the People’s Republic of Bangladesh.

[20]Dhaka Tribune (2018) Transgender community celebrates recognition date.  Published on Nov 11, 2018.

[21]AbdurRajjakHawlader, “The Living Standard Development Program for the Hijra Community,” Department for Social Welfare, February 17, 2016.

[22] Government of the People’s Republic of Bangladesh, Ministry of Social Welfare, Bangladesh Gazette, No. sokom/work-1sha/Hijra-15/2013-40.

[23]Human Rights Watch. (2016). “I Want to Live With My Head Held High” Abuses in Bangladesh’s Legal Recognition of Hijras.

[24] Kyle Knight, “What We Can Learn From Nepal’s Inclusion of ‘Third Gender’ on Its 2011 Census, commentary, New Republic, July 8, 2011, https://newrepublic.com/article/92076/nepal-census-thirdgender-lgbt-sunil-pant.

[25] Kyle Knight (Human Rights Watch), “Nepal’s Third Gender Passport Blazes Trails,” commentary, Advocate, October 26, 2015, https://www.hrw.org/hu/node/282644;

[26] https://www.ilo.org/dyn/natlex/docs/MONOGRAPH/100061/119815/F-1676948026/NPL100061%20Eng.pdf.

[27] “India: Enforce Ruling Protecting Transgender People,” Human Rights Watch news release, February 5, 2015.

[28]Ibid.

[29]ShivaniBhat v. State of NCT of Delhi and Ors.,Dehli High Court, October 5, 2015,See Yuvraj Joshi, “Delhi Court Protects Transgender Teen,” October 8, 2015, (accessed July 19, 2020).

[30] https://yourstory.com/2018/07/swati-bidhan-baruah-assam-transgender-judge

[31]The New Indian Express, India’s First University for Transgender to come up in UP’s Kushinagar. Published on Dec 25, 2019.

[32]ZoyaRehman, PCL Student Journal of Law, Vol I, 2017. Implications of ‘Khaki v. Rawalpindi’  -A Decision for Pakistan’s Transgender** Community.

[33] Ibid.

[34]MohosinulKarim (2013): “Hijras Now a Separate Gender”, Dhaka Tribune, 11 November.

[35](2007). Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.

[36]Supra 23.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41]‘UNSUNG-Extraordinary Lives’ (2016). Vol.2.

 

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