Human Rights Violation of Transgender People: A Critical Analysis on Bangladesh Perspective

Transgender people are discriminated based on their gender identity, especially, in the societies of South Asian countries. The legal recognition of this ‘third sex’ had to wait long in countries like India, Pakistan, Nepal and Bangladesh. The human rights of these people are being violated in every sector although having been recognized as ‘citizens’ by their respective governments. Many countries have already started to let them get involved in different social and economic activities. In 2013, the Bangladesh government declared the status of the third gender to the transgender people of its territory. This recognition was aimed to protect all the human rights of the third gender enabling them to identify their gender as ‘Hijra’ in all government documents and passport. Section 27 of the Constitution of Bangladesh states that ‘All the citizens are equal before the law and are entitled to equal protection of law’. But the legal protection of the human rights of the newly recognized third gender is questionable till now. The Prevention of Oppression against Women and Children Act, 2000 describes the rights of only women and children. In Bangladesh, the transgender people are becoming rape victims everywhere but unlike women and children, their rape cases never get filed as the police officers do not even believe that anyone can rape these third genders. This social taboo and negligence are costing the sexual minorities their human rights like legal protection. Therefore, it has become important to address this issue to create social awareness which might induce the urgency to practice equal laws for every gender identity. In this paper, a critical analysis of the human rights of Bangladeshi transgendered people has been performed. Finally, the human rights condition of transgender people of Nepal and India is also discussed.

Transgender people are discriminated based on their gender identity, especially, in the societies of South Asian countries. The legal recognition of this 'third sex' had to wait long in countries like India, Pakistan, Nepal and Bangladesh. The human rights of these people are being violated in every sector although having been recognized as 'citizens' by their respective governments. Many countries have already started to let them get involved in different social and economic activities. In 2013, the Bangladesh government declared the status of the third gender to the transgender people of its territory. This recognition was aimed to protect all the human rights of the third gender enabling them to identify their gender as 'Hijra' in all government documents and passport. Section 27 of the Constitution of Bangladesh states that ' All the citizens are equal before the law and are entitled to equal protection of law'. But the legal protection of the human rights of the newly recognized third gender is questionable till now. The Prevention of Oppression against Women and Children Act, 2000 describes the rights of only women and children. In Bangladesh, the transgender people are becoming rape victims everywhere but unlike women and children, their rape cases never get filed as the police officers do not even believe that anyone can rape these third genders. This social taboo and negligence are costing the sexual minorities their human rights like legal protection. Therefore, it has become important to address this issue to create social awareness which might induce the urgency to practice equal laws for every gender identity. In this paper, a critical analysis of the human rights of Bangladeshi transgendered people has been performed. Finally, the human rights condition of transgender people of Nepal and India is also discussed.

Introduction:
On March 30 th , 2015, Labannya Hijra, a Bangladeshi whose only identity was of being a transgender, did something very remarkable. She intervened when two assailants were fleeing after the murder of a secular blogger Oyasiqur Rhaman, ultimately leading to the arrest of the two criminals 1 . Labannya was hailed as a hero, her act broadly acclaimed and the fact that Labannya was a 'hijra', has since sparked a shift in overall public attitude towards the third gender. This incident proved beyond doubt, that the transgender people are also part of a society and they can contribute equally in every aspect.
The transgender people are considered as the third gender in sexuality. Despite their supposed right to choose their sex based on their orientation, the social taboo and lack of acceptance keep on impeding them from being a part of Bangladesh. Every day, in the streets, it has become common to see a hijra being abused verbally and even physically by the public, without a way for the victims to get justice. To the extent that even the law enforcement forces are prompt to make fun of their gender identity and refuse to file any sexual assault cases on their behalf.
In 2013, Bangladesh has recognized hijra as the 'third gender' only in pen and paper 2 . This has been the case in some neighbouring countries too, like Nepal and India. But the general situation of the transgender community has remained the same as the distant past. The basic human rights of this sexual minority have been violated in most of the countries including Bangladesh. Such was the context, where the incident of Labannyahijra has sparked a movement of establishing 'equal' rights as the citizens of Bangladesh for this neglected segment of our society.
In this study, the legal status of the transgender community has been analyzed. With further investigation on how the violation of their human rights has been instigated critically. Finally, few proposals have been brought forward which we believe would accelerate the movement to establish equal human rights for those discriminated people, people of the so-called 'third gender'.

Definition of Transgender people in Bangladesh:
The most common term used for transgender people in Bangladesh is 'Hijra' originating from Semitic Arabic root through Urdu-Hindustani word 3 , which was later borrowed into Hindi. The literal translation of this word into English is 'eunuch' or 'hermaphrodite' which means 'irregular male genitalia'. Therefore, hijras are born male but later in life, they start to have female characteristics including transformation in physical orientation. 'Third Gender' or 'Other Sex' are some of the widely used synonyms of hijra in Bangladesh, similar to other countries in South Asia.

Legal Status of Hijras in Bangladesh:
Bangladesh government has offered an 'other' gender category on passport applications since 2011. In November 2013, the government announced the recognition of 'third gender' status to the approximately 10,000 Hijras living in the country 4 . According to a renowned newspaper, Social welfare minister Rashed Khan Menon mentioned in the parliament of Bangladesh that 'The number of Hijra people stood around 11,039 in 2 Shakil Bin Mushtaq, 'Bangladesh Adds Third Gender option to Voter Forms', The Diplomat, 19 January 2018.

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Farzana Hussain, 'Ensure rights of the third gender', Dhaka Tribune, 7 January 2015 available at https:// www.dhakatribune.com/uncategorized/2015/01/07/ensure-rights-of-the-third-gender accessed on 2 September 2019. the country' 5 . But, statistics shows that this group of people are not experiencing their rights in sectors like education, health and housing 6 .
After this recent announcement in Bangladesh, it's expected that some specific laws would be enacted to protect their rights. As the number of transgender people fares significantly lesser than the overall population, they should be recognized as minority and government of Bangladesh must take strict and compatible actions to enable their rights in both social and economic sectors, including proper security, access to medical care and also designated quotas for jobs and education.
There are specific laws in Bangladesh to protect the vulnerable segments like women and children from any form of violence. Specific provisions like -The Domestic Violence (Prevention and Protection) Act, 2010 is enacted to prevent the violence against women in the domestic sphere 7 . Nari o Shishu Nirjaton Daman Ain, 2003 provides protection of women and children from rape. Penal Code 1860 also mentions the punishment for violence against women and children. According to the sec 375 of the Penal Code 1860, 'A man is said to commit 'rape' who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: Firstly, Against her will. Secondly, without her consent. Thirdly, with her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly. with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly, with or without her consent, when she is under fourteen years of age. Exception: sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape' 8 .
According to TheNari o Shishu Nirjaton Daman Ain, 2003, 'Rape stated under section 375 of the Penal Code 1860 (Act XLV of 1860) is subject to section 9 and the accused shall be punished with rigorous imprisonment for life and with a fine for committing rape' 9 .
But, though these laws are meant to protect the vulnerable and potential victims from abuse, only women and children are mentioned as victims, stating nothing about the third gender people. For example, In Nari o Shishu Nirjatan Daman Ain 2003 -the title of the act is 'NARI O SHISHU' which means 'women and children' only. Thus, the resulting loophole presents a scenario, where no provision may protect the transgender people if they get assaulted sexually or otherwise. While on the other hand, now legally recognized under the Constitution they may be breaking the law if they have consensual gay sex 10 . Section 377A of the Bangladesh Criminal Penal Code provides: 'whoever has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine' 11 .Moreover, in Bangladesh, there are no anti-discriminatory laws which will specifically protect sexual minorities or laws that recognize the diverse gender identity. Additionally, there are many surveys which describe the people from the hijra community do not get any protection from the police station. There are several news reports on this issue. According to article 27 of The Constitution of The People's Republic of Bangladesh, 'All citizens are equal before the law and are entitled to equal protection of law' 12 . As the Constitution of Bangladesh gives equal rights to every citizen, giving rise to the question, whether the Hijra community is getting their rights in the police station to complain against any violence they face. This article can be marked as the successor of 'article 6 and 7 of The Universal Declaration of Human Rights' 13 and 'article 16 of the International Covenant on Civil and Political Rights' 14 .According to article 28(3) of the constitution of Bangladesh, 'No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.' 15 Article 31 describes 'To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law' 16 .
So, from the above-mentioned articles of the Constitution of Bangladesh, the justifiability of protection rights of the transgendered community can easily be asserted.
Alongside ensuring fair treatment of laws and regulations for all, it is also a matter of introspection into our own human origins, recognizing the right of every human being to choose their gender and not to be discriminated based on their sexual orientation and gender identity. The fact that regardless of all else, they too deserve life not so different from us simply on the merit of being a human.

Rights of Transgender people (International Context):
The laws of each country on transgender protections are different from another. As we know the United States of America is improving the system for the protection of transgender people, with specific laws to provide the rights. On the other hand, Human rights campaign have mentioned: 'In the European Union, a 1996 decision of the European Court of Justice in P v S and Cornwall County Council provided protections from employment discrimination related to «gender reassignment.» The United Kingdom formalized this EU decision when it passed the 1999 Sex Discrimination (Gender Reassignment) Regulations' 17 .
Protecting Transgendered people from violence and discrimination does not require the creation of a new set of specific rights, nor does it require the establishment of new international human rights standards. According to the Universal Declaration of Human Rights: The legal obligations of States to safeguard the human rights of transgendered people are well established in international human rights law on the basis of the Universal Declaration of Human Rights and subsequently agreed to international human rights treaties. All people, irrespective of sex, sexual orientation or gender identity, are entitled to enjoy the protections provided for by international human rights law, including in respect of rights to life, security of person and privacy, the right to be free from torture, arbitrary arrest and detention, the right to be free from discrimination and the right to freedom of expression, association and peaceful assembly.
The core legal obligations of States with respect to protecting the human rights of LGBT people include obligations to: Protect individuals from homophobic and Trans phobic violence. Prevent torture and cruel, inhuman and degrading treatment. Repeal laws criminalizing homosexuality and transgender people. Prohibit discrimination based on sexual orientation and gender identity. human rights for the people of the third gender, Lesbians and Gays' 19 .
'All adult citizens in Nepal with citizenship cards were able to access certain benefits, such as ration cards, passports, and residency cards. But the people from the Third Gender were not officially getting those rights' 20 .
'The petitioners argued that people of the third gender had not been treated equally. The responsibility of the State was to provide them identity documents, including birth certificates, citizenship certificates, passports, and voter identity cards so that they can get the facilities from the state with the identity of 'gender minorities'. The decision of the court was that new citizenship cards have a separate column for the third sex' 21 .
The then constitution of Nepal provided the following provisions regarding the issue 22 : Article 12 guaranteeing the right to freedom, including the right to live with dignity and the right not to be deprived of personal liberty except in accordance with the law.
Article 13 guaranteeing equal protection under the law and prohibiting discrimination on grounds of religion, sex, race, caste, tribe, origin, language or ideological conviction.
Article 32 providing the right to file a petition before the Supreme Court under its extraordinary jurisdiction for the enforcement of fundamental rights.
Article 107 conferring jurisdiction on the Supreme Court to review legislation as well as enforce constitutional rights; conferring locus standi on groups or associations in matters involving enforcement of fundamental rights.

Human rights violation in Bangladesh (Social Aspects):
The social acceptance of hijras could not be ensured despite their recognition as 'Third Gender' by the Bangladeshi Government. The age-old social perception around them still persists thus a violation of the human rights for this community couldn't be changed alone by this official recognition. Till today, in every sphere of life; basic human rights like the right to shelter, medical treatments, education and overall 'equality' are denied to them. Education is not offered to hijras as the teachers and students in schools maltreat them, resulting in illiteracy which in-turn affects the employment opportunities for them; creating a loop of deprivation. A Trans woman (Tanisha Yasmin Choity case) wanted to change her gender from all her educational certificates but faced problems in filling the condition of the education board 23 . In Shimul case, a transgender person bought a property but didn't have the possession because of sexual identity which eventually resulted in losing the land to the neighbour and partly due to the negligence of police in lodging a case 24 .
Several reports were recently published on the safety of transgender people in Bangladesh. Where Human Rights Watch has reported distinctive threats that the transgender men face. The organization interviewed multiple Transgender people from different parts of the country, where six of them voiced out; ranging from bullying at school to harassment and verbal abuse in both public and private places 25 . While the barriers they mentioned include obstacles in getting employment it stretches to something as basic as access to health care, which they are often denied. Their life which is constantly threatened and isolated due to social stigma, religious beliefs and family values, end up creating an environment which is hostile to their very lives.
In the interviews with Human Rights Watch, the trans men mentioned a constant fear that they battle of getting killed if religious hardliners find out that they identify as transgender 26 . For example, Nandini, a transgender man mentioned in the interview: 'Many people assume I'm lesbian or gay based on how I carry myself. That assumption threatens my life'.
This constant fear results in chronic emotional distress impeding their regular lives. Abed, who is a trans man, explained his situation to Human Rights Watch: 'How would you feel if 24/7 you thought about the fact that if anyone finds out about you, then they will kill you? It's a terrifying reality. And it's what I live with. There's a lot of religious extremists in my neighbourhood. They're dangerous. I avoid leaving my house unless I really need to because I fear who might notice me.' Each of the trans men, interviewed by Human Rights Watch shared their experiences of discrimination when they were in school. On top of the bullying and harassment in school which became regular, the strict uniform requirements and pressure from school authorities to dress in a feminine manner came as an incident not too uncommon.
The recent political context in Bangladesh only manages to give transgender people an additional reason to be afraid, with People getting killed for raising their voice against the violence. Two LGBT rights activists, Xulhaz Mannan and Tonoy Mahbub, in April 2016 got murdered in an incident which originated from this issue. Following which, the Bangladeshi home minister noted that one of the victims, has been working to promote gay rights while duly emphasizing that '…this (his actions) do not fit with the norms of our society'. government for protecting the human rights of transgender people by developing legal mechanisms that allow transgender individuals to change their official gender on legal documents. They have also highlighted the anti-discrimination law that expressly prohibits discrimination based on gender identity and sexual orientation.
If we just glare at some reports, news cutting & other data, we'll easily find the vulnerability of LGBT people in Bangladesh & across the world. The backlogs are almost the same, which includes social stigma, religious beliefs, family values, etc. It creates confinement for LGBT people to grow. UN reports say that being sexual minority people they even cannot mix up with the mainstream of our so-called equal society, they are often verbally & physically tortured let alone warmly accepted in our society. Hence, to protect LGBT people, Bangladesh Government has started to train law enforcing agencies, Judges & adopted further measures also. Yet, it has failed to accept specific recommendations regarding LGBT people on sexual orientation which is disappointing undoubtedly. Even, in a manual on sexual and gender minorities, NHRC has published that, transgendered people are often physically & mentally tortured, abused by law enforcing agencies like Police, RAB. Surprisingly, they are being arrested, given false accusations & preventive detentions are also awarded in the name of presuming homosexual acts that could have been done by them. Thus, the scenario is crystal clear about the vulnerable situation of trans-gendered people in our country as they are in the intolerable condition in our society which has been published in many journals, reports & newspapers across the world.
Whereas the lack of education already impacts the earning levels and opportunities for the hijra community; they face discrimination by not being offered any normal job even with the required qualification. Even there's prejudice on Medical treatment for the hijras in Bangladesh, with the medical staffs claiming to be 'uncomfortable' while treating these people. Doctors don't treat them properly as if they are less than a human being. In most cases, doctors are not willing to serve the hijra community even with the regular fees paid. These people, face this extreme xenophobia from a very early age, some from birth. As many of their own families would choose to give them up or ultimately force them to leave the family with the disclosure of their gender identity. Every day, there are a number of cases where the transgender people face injustice, violating something as basic as their human rights in Bangladesh. But the severity is never properly realized, as most of the cases are not even reported by media or police due to sexual minority discrimination.

Comparison of Bangladesh and Nepal context:
Sachetan Samajseba Hijra Sangha President, Ivan Ahmed Katha stated in an interview with a famous newspaper: 'We feel embarrassed to identify ourselves as men or women. We also hesitate to stand in queues of either male or female voters to exercise our voting rights. Though there's a separate option (others) for hijras in the passport form, we cannot use it as there is no such option in the birth certificate and the NID card' 27 .
Another Transgender Pinky Shikdar, chief of Badhan Hijra Sangha, said 'We are facing many problems, as we are still deprived of basic rights since the third gender identity is yet to be implemented. The government should give us third gender identity through parliament' 28 .
Soliman, a hijra of Mirpur who graduated in tourism and tourism management, mentioned 'Now we face serious problems in renting houses and availing of state facilities. The government should take steps so that they can get a proper share of their paternal property as the third gender. It can also introduce quota in various public jobs for the third gender' 29 .
As we know the government of Bangladesh recognized the transgender or hijra as the third gender. After that declaration the Acting Secretary to the EC Secretariat Helaluddin Ahmed told Bangladesh Sangbad Sangstha, a national news agency 'The "hijra" will be able to pick the "Hijra" gender identity alongside the "male" and "female" options from the upcoming update of the voters list according to a decision principally agreed by the Election Commission, soon to be finalized' 30 .But there was no statistics regarding hijra or third gender shown in the updated list. The election commission mentioned that the hijra community was previously able to register to opt for 'male' or 'female' gender options on the list; whereas, on November 13, 2013, the cabinet meeting officially recognized the gender identity of Hijras by approving a policy regarding this issue. Mr. Ahmed Acting Secretary of the Election Commission of Bangladesh also said, 'The Election Commission attempted to add the proposed Hijra option to the 2014 voters' registration forms but were unable to do so because there had been no amendment of the Voter List Act and the Voter List Regulations. Ahmed also added that the matter was raised at a meeting on amending the regulations at the Election Commission Secretariat on December 27 in 2017. The commissioners, however, decided that it is necessary to amend the existing law and regulations to include Hijras as a gender identity alongside men and women on the voter information gathering list' 31 .
We are aware that there is a separate option for third gender people in the passport but there is no recognized law in Bangladesh for the third gender community. In fact, there are no specific provisions in the Constitution of Bangladesh which may protect them in case of a violation of their rights as a human being. But there are several provisions in Nepal's Constitution of 2015; where Article 12 talks about Citizenship 27 'Hijras legally 3rd gender but yet to get rights', The Daily Star 4 July 2016 available at https://www. thedailystar.net/city/hijras-legally-3rd-gender-yet-get-rights-1258357 accessed on 5 September 2018. 28 Ibid.
based on descent and gender identity. According to this constitution, 'A person who acquires citizenship of Nepal by descent may obtain citizenship certificate of Nepal in the name of his/her mother or father with gender identity' 32 . Additionally, Article 18 of Nepal's constitution 2015 talks about the Right to equality. Article 18 (1) of this constitution says 'All citizens shall be equal before the law. No person shall be denied the equal protection of law' 33 . Article 18(2) says,there shall be no discrimination in the application of general laws on the grounds of origin, religion, race, caste, tribe, sex, physical conditions, disability, health condition, matrimonial status, pregnancy, economic condition, language or geographical region, or ideology or any other such grounds' 34 . Also, Article 42 ensures 'Equal participation of sexual minorities in state structures on the basis of inclusion' 35 . After 2007 the government introduced laws to protect transgender individuals in the workplace.

Suggestions:
Based on the discussion, we have reason to believe that national recognition alone as the third gender is not enough to protect the human rights for the transgender community. The social acceptance for this community must be incorporated in the laws in such a way that awareness is created among Bangladeshi mass and any violation results in clear and executable punishments. Hence below are few proposals which could play a major role in combating this issue, going forward: A national database to be created and compiled to list and address the total number of transgender communities in Bangladesh to facilitate the future initiatives or approaches for this community, both in terms of understanding their needs and providing a stage voice demands. Both government and non-government organizations should step in together to provide help.
The social image of hijra is misrepresented by the media to the common mass, which needs to change slowly. A conscious display and influence from Media can play a huge role in changing the mind-set and social acceptance towards the sexual minority of the country.
The transgender people must be able to avail the equal medical facility in all hospitals around the country.
In educational institutions, there should be equal rights for the third gender to get admission and other educational facilities.
Alike women rights, there should be quotas preserved for hijra community in all social and political activities so that they can take part equally with men and women. 32 The Constitution of Nepal, 2015, art 12.
The hijra community should get constitutional recognition and must be able to take part in decision-making processes and planning activities, including law reforms. As the constitution of Bangladesh acknowledges an equal right for each of her citizens, hijras being Bangladeshi citizens should also be made to take part and retain their voice.
The family property inheritance laws must be introduced for the hijra community also.
The most common form of discrimination for the third gender is the laws regarding sexual assault and rape. As there is no direct interpretation of the third gender in rape laws of Bangladesh, the sexual minority suffers a lot from sexual assaults and rape and cannot even report cases to police because of their sexual orientation. Hence, the laws need to be more specific for hijras so that they get equal legal rights for every situation.

Conclusion:
Hijras are the citizens of Bangladesh, with equal right just like every other men and woman of this country. Only a formal recognition will never be enough to bring the change that is needed, neither justifies lone initiatives taken by the government or NGOs. It is time a central approach is made, to ensure this community gets opportunities to gain qualifications and are given a realistic career path accordingly. A crucial part for accepting them as a part of society begins with identifying and addressing the discriminating behaviours of the people of Bangladesh, where the government, media, and all relevant stakeholders have a moral and conscious call to play. Along with these social initiatives, constitutional laws should also be reformed to protect the human rights of the other gender. Some recent cases successfully suggest that transgender individuals can contribute to social improvements once provided the opportunity. Thus with the realization that the transgender community has just as much potential to play a role in this society as any other citizen; it is time the nation and society reforms laws and norms -to provide them with a chance.