The abuse does not fall under the traditional definition of rape according to Section 375 of The Penal Code, 1860
In light of the recent collective outrage against sexual abuse, a community that deserves equal advocacy is the transgender community. Years of abuse, marginalisation, and segregation has made the community more prone to sexual abuse and assaults.
Through the recent anti-rape movements gruelling reports of abduction, detention, beatings, and gang rapes of persons of transgender identities are starting to emerge in the media.
In November 2013, the government officially recognised transgenders as the third gender. The estimated number of transgender people range from 10,000 to half a million (out of Bangladesh's population of about 160 million) according to The Ministry of Women and Children Affairs.
However, the transgender activists and Non-Governmental Organisations (NGOs) believe the number to be significantly higher than the government estimation.
No clear government statistics or estimation can be found about reported sexual abuse cases of transgender people, but unofficially it is being said that almost 99 percent of transgender persons have faced rape or sexual assault at least once in their lifetime.
These incidents are more frequent than we can imagine because these cases, unfortunately, remain out of the general public domain for fear of further harassment and mockery.
There have been several reported incidents over the years where people from transgender identities were sexually abused, mugged and beaten by clients, hooligans, local influential persons as well as law-enforcing agents.
Reports of molestation, both on physical and psychological levels, can also be found through different Rights Groups and NGOs. For many in the community, harassment begins at home from a very early age of 8-12 years, then eventually extending, and unfolding to all spheres of life.
If the victims intend to speak out and seek justice, they face restrictions and threats from the community elders/leaders fearing the cancellation of funds from donors. Despite all the hurdles, if they gather the courage to go to the authorities to report these incidents, they face discrimination and humiliation along with derogatory comments from by the very authority that was meant to protect every citizen of the state, as they are.
Besides, many have said that they have to go through invasive and demeaning medical examinations to prove the assault. Those who get successful in reporting the offence, then face obstacles by the law itself.
There is no such law present in Bangladesh which safeguards the right of gender diverse people from sexual abuse. The abuse does not fall under the traditional definition of rape according to Section 375 of The Penal Code, 1860 which defines rape that can only be perpetrated against a woman by a man.
Article 27 of Constitution of Bangladesh declares that all citizens are equal before the law and are entitled to equal protection of the law. Besides, in Article 31, the Constitution states that it is the inalienable right of "every" citizen to enjoy the protection of the law.
Through this, the question arises that, then why transgender persons, despite being a citizen, do not enjoy the protection of the law in seeking justice for sexual abuse? In addition to this, the preamble of the Constitution also provides that the government shall secure equality for all citizens. Then where is the equality in not recognizing that rapes and sexual assaults can also be perpetrated towards them?
Many transgender groups have reported that while seeking justice for sexual abuse they face under Section 377 (unnatural sexual offences), they face further scrutiny. In their annual human rights report in 2019, the US Department of State has raised concerns on the issue of harassment and abuse under Section 377 towards the transgender community in Bangladesh.
Furthermore, gender identity is a recognized prohibited ground of discrimination in major human rights conventions to which Bangladesh is a state party. By allowing discrimination to access the justice system, Bangladesh is showing non-compliance towards these internationally recognized conventions.
The proposed Anti-Discrimination Act by the National Human Rights Commission (NHRC) of Bangladesh, which is yet to be passed by the Parliament, may potentially ease the burden of members of this community as it explicitly criminalizes discrimination and can be used to applicable laws relating to sexual abuse for persons of transgender identities.
Along with this constitutional recognition, specified mention in legislations and enactment of special Anti-Hate Crime Law can legally empower the transgender population.
The author is a research intern at the Bangladesh Forum for Legal and Humanitarian Affairs (BFLHA).
Bangladesh Forum for Legal & Humanitarian Affairs (BFLHA) is a non-profit organization that works in the field of social justice by promoting human rights, providing pro bono preliminary legal aid, fighting for rule of law, conducting extensive legal research, & organizing humanitarian campaigns.