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  • FROM RECOGNITION TO REALISING RIGHTS: LEGAL PROTECTION OF GENDER IDENTITY IN BANGLADESH LAW – POLICY BRIEF – BANGLADESH

FROM RECOGNITION TO REALISING RIGHTS: LEGAL PROTECTION OF GENDER IDENTITY IN BANGLADESH LAW – POLICY BRIEF – BANGLADESH

This report written by Abdullah Titir and others of the Bangladesh Legal Aid and Services Trust was published in 2019. It is based on the review and analysis of existing laws, policies and Supreme Court judgments in Bangladesh and in South Asia which impact the rights and legal protection of individuals in gender and sexually diverse communities. This policy brief documents the positive measures to date to recognise diverse gender identities, and then to outline the remaining challenges in this respect, including the process for obtaining identity documents, and the reforms required in law and practice, to ensure gender identity is not narrowly defined. The brief also recognises the need for such reforms as a first, crucial step towards addressing other existing gaps in the law that prevent these individuals from living with dignity, protection and freedom from discrimination.

 

CONSTITUTIONAL FRAMEWORK

The Fundamental Principles of State Policy set out in the Constitution mandate the state to provide the basic necessities for all citizens, including food, clothing, shelter, education and medical care, and guaranteed employment at a reasonable wage. The existence of gender diverse individuals is neither acknowledged nor mentioned in the Constitution and in most laws of the country. Laws that are gender-specific, for example, personal laws on inheritance, apply only to give rights to individuals with ‘male’ and ‘female’ gender identities. The lack of any laws or policies expressly addressing issues of discrimination based on gender identity keep them perpetually marginalised.

 

CHALLENGES IN IMPLEMENTATION OF THE RECOGNITION

Some official identification documents and institutional forms have been, or are currently being updated in light of the ’official recognition’, providing for inclusion of the terms ‘Hijra’, ‘other’ or ‘third gender’ as a gender identity option. The Department of Immigration and Passports has since 2014 provided for the third category of ‘other’, as a gender marker option on passport application forms, in addition to ‘male’ and ‘female’. In 2018, the Election Commission updated NID cards to include ‘Hijra’ as a gender identity by amending the Voter List Act 2009 and the Voter List Regulations 2012.12 Hijras can now hold national identity cards, where they can identify as ‘Hijra’.

However, the approach to incorporating gender identity options in various official documents is not uniform or inclusive. The process of identification by different government bodies lacks a uniform, coordinated approach.

 

KEY CONCERNS

  1. Different gender markers in use such as ‘Hijra’/’others’/’tritiyo linggo’ (third gender) makes it unclear as to who will be entitled to apply for these gender markers. It is not clear who decides which gender category to select on official documents– the individual applying for the document, or the authority issuing this. It is not clear on what basis this selection is made.
  2. The process of identification for individuals with diverse gender identities is not clearly set out. There is no standard procedure for identification, and different departments are approaching this process individually and inconsistently.
  3. Hijras have been subjected to invasive and unscientific medical tests to verify their gender identity when applying for government jobs. There appears to be no defensible rationale behind these tests.
  4. There is insufficient information on whether and how human resource policies of public and private organisations address the rights of Hijras and transgender individuals. For example, job application forms may not include the ‘Hijra’ or ‘others’ gender category. There does not appear to be any directive for private organisations to ensure gender inclusion.
  5. Since the recognition in 2014, the Government does not seem to have issued any clear directives on recognition of gender identity and of Hijras or transgender individuals for government servants who are responsible for providing services, including frontline staff.

 

RECOMMENDATIONS FOR POLICYMAKERS

  1. Develop guidelines to clarify the meaning of the official recognition of the ‘Hijra’ community in 2014, to enable inclusive and coherent reform of existing laws in accordance with the international human rights framework.
  2. Develop appropriate and inclusive definitions for the full spectrum of gender identity categories, through collaboration between relevant Ministries (Social Welfare, Education, Health and Family Welfare, Labour and Employment and Public Administration), gender diverse community members and human rights organisations.
  3. Adopt a clear plan of action, setting out the steps to ensure reflection of gender identity recognition in laws and policies, and to eliminate discrimination against gender diverse communities.
  4. Ensure a system is in place to amend birth certificates to reflect a person’s gender identity, as names can be changed or corrected legally through filing an affidavit in court.
  5. Disseminate knowledge and provide gender-inclusive sensitivity training to public institutions who are working with gender-diverse communities.
  6. Hold consultations on the Draft Anti-Discrimination Law, with affected communities and experts, and revise it to prohibit discrimination based on gender identity and/or sexual orientation, provide clear definitions of diverse gender identities, and to include specific provisions on non-discrimination in cases of gender identity recognition, identification, and access to basic services.

READ THE FULL REPORT HERE