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 guarantees 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 families to repudiate them. As a result, they started to do prostitution, blackmailing and other illegal means of earning for their survival what they are still doing to some extent in our present society. However, the mentioned enactment repealed in 1949 although their livelihood, discrimination, neglect and oppression remain the same in this land.
However, Pakistan’s journey towards the official protection of the rights of the trans and criminalizing discrimination against them commenced in 2009 by the landmark Dr. Mohammad Aslam Khaki and another v Senior Superintendent of Police (Operation) Rawalpindi and Others case. In the verdict, the Supreme Court of Pakistan had ordered the government to take effective measures to ensure the basic rights including the right to education, inheritance, vote, marriage, registration of identity etc. for the transsexuals as the other citizens of the country enjoy usually. Consequently, senator Zaheer-Ud-Din-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 the transgender person which was often disputed under some debated religious interpretation and now finally they can claim their share of property from their ancestor according to their own perceived gender identity. This provision has resolved a major issue to hold property from their family which will ultimately make them financially solvent and builds a relationship with the family.
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 passport, national ID etc. as well 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.
Contrarily, it forbids all sorts of discrimination against transgender persons in educational institutions, occupation, transportation service provider, employment, access to public amenities, residence, 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 trans person who feels at risk and give psychological counseling to those who require it. In addition, it says to arrange separate room in jail for trans offender. Nevertheless, this Act also stipulates punishment for sexual and physical violence against the transgenders’, denial of access to public places, forceful eviction of from living place, endangering the life, health and safety etc. of a trans person.
However, being a sexual minority community, the legal position of the transgender community is highly vulnerable in Bangladesh although they have been added in the voter list since 2009 and in 2013 the government has recognized them as ‘third gender’ category. Also, they are eligible to get passport according to their third gender identity. Nevertheless, the tag ‘third gender’ is objectionable as it denotes men as first and female as the second category and creates superiority and inferiority among the gender. We often listen allegation from the trans that they are being denied getting access from many public places like public toilets, schools, hospitals etc. due to their sexual identity. They are facing endless harassments in their daily life that even do not conclude after their death while they are being refused to bury in the same graveyard with other people.
The trans person in Bangladesh still cannot imagine their right to get parental property as there exist misleading interpretation of religious rule regarding the distribution of property and adverse interest of their socially established co-sharers. While Pakistan being a more conservative society than Bangladesh take such an illustrative initiative to eliminate discrimination and ensure equality there astonishingly Bangladesh remains silent about the just rights of the transgender community as a citizen in the country.
Albeit the exemplary initiative has been taken by the Pakistani MPs is appreciating yet they have scopes to do more for the trans such as the right to religious beliefs of the transgender person, right to marriage and family etc. are not yet settled by the present law. Nonetheless, Bangladesh should not wait more to protect the basic rights of this marginal community whereas the Constitution of the land guarantees 'equality before law' and 'equal protection of law' under article 27 and prohibits any discrimination only on the grounds of sex, gender, race, place of birth, religion etc. under article 28.
Hence, Bangladesh should enact a holistic piece of legislation giving full equality, freedom and rights of the transgender people and criminalize all kinds of discrimination and exploitation against them. We dream such a Sonar Bangla where everybody would be treated as equal and none would be subject to any kind of social exploitation. Therefore, if Bangladesh observes indefinite silence to eliminate curse from this community that would be a great shame as a nation for all of us.
The writer is a Chevening Scholar 2017/18