20.10 The UNHCR reported further:
‗[M]any members of Urdu-speaking communities, including those in the open camps, are living alongside the Bengali community and speak Bengali. Urdu speakers living in extreme poverty are sometimes unable to access basic services, either because of the unavailability of such services in their area, or because they are unable to meet the necessary legal or administrative requirements applicable to all Bangladeshi nationals (for example, they may lack a valid address, which is required to acquire a passport);
this is not, however, a problem unique to Urdu speakers in Bangladesh.‘ 301
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21. Sexual orientation and gender identity
In considering the position of lesbians and bisexual women see also the section on Women below
Legal rights
21.01 The International Lesbian Gay Bisexual Trans and Intersex Association (ILGA) Report on State-Sponsored Homophobia, 2013, dated 13 May 2013, stated that both same sex male and female sexual relationships are illegal in Bangladesh. It sets out the law thus:
‗Penal Code, 1860 (Act XLV of 1860) Section 377 ―Unnatural Offences‖
―Whoever voluntary has carnal intercourse against the order of nature with man, woman, or animal, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to 10 years, and shall also be liable to [a]
fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.‖‘‗ 302
299 UN High Commissioner for Refugees, ‗Note on the Nationality Status of the Urdu-speaking Community in Bangladesh‘, 17 December 2009 (p4) http://www.refworld.org/docid/4b2b90c32.html Accessed 2 July 2013
300 UN High Commissioner for Refugees, ‗Note on the Nationality Status of the Urdu-speaking Community in Bangladesh‘, 17 December 2009 (p5) http://www.refworld.org/docid/4b2b90c32.html Accessed 2 July 2013
301 UN High Commissioner for Refugees, ‗Note on the Nationality Status of the Urdu-speaking Community in Bangladesh‘, 17 December 2009 (p5) http://www.refworld.org/docid/4b2b90c32.html Accessed 2 July 2013
302 International Lesbian Gay Bisexual Trans and Intersex Association (ILGA), State-Sponsored Homophobia, A world survey of laws: Criminalisation, protection and recognition of same-sex love, 13 May 2013 (p67)
http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2013.pdf Accessed 17 July 2013
The main text of this COI Report contains the most up to date publicly available information as at 31 July 2013. 103
21.02 An alternative report submitted by the Citizens' Initiatives to CEDAW-Bangladesh (CiC- BD) dated December 2010 stated that:
‗As a signatory to CEDAW, the Bangladeshi state has an international obligation to protect the rights of sexual and gender minorities; more specifically to eliminate all forms of discrimination based on sex (which can be, and is widely, interpreted to include sexual orientation and gender diversity). …. The Constitution of Bangladesh also
guarantees the right to be free from discrimination based on sex, as well as caste, religion and race.‘ 303
Note: The Citizens‘ Initiatives on UNCEDAW, Bangladesh (CiC-BD) is a citizens‘
platform comprised of 38 women‘s and human rights organizations. The platform came together in October 2007. 304
21.03 The same report continued:
‗Same sex sexualities and non-normative gender identities are not recognized under the current legal framework of the country. International and constitutional guarantees of freedom from discrimination on the grounds of sex are directly contravened by Section 377 of the Bangladesh Penal Code which provides for the punishment through
imprisonment and fines of any sexual activity deemed ―against the order of nature‖ by the courts. Introduced by colonial authorities in British India, this provision of the Penal Code of 1860 effectively criminalizes all acts other than procreative sex within
heterosexual marriage.
‗In practice, Section 377 can be used by post colonial states such as Bangladesh to criminalize consensual same sex activity. The law does not distinguish between consensual and forced sex. In some instances, it is also used to prosecute cases of child sexual abuse since existing rape laws do not recognize male to male rape. That is, rape is understood to be a heterosexual phenomenon, both culturally and legally.
‗At the Fourth Round of the Universal Periodic Review in February 2009, the Sexual Rights Initiatives (SRI) presented a report on the socio-political rights of sexual and gender minorities, including gays, lesbians, hijra, kothis and inter-sex persons in Bangladesh. The report was historic in nature since this was the first time that the subject of sexual and gender minorities in Bangladesh had been presented at such a high level international forum. During the discussion, the Bangladesh Foreign Minister denied the existence of homosexuality in the country. The GOB [Government of Bangladesh] also rejected recommendations in the SRI report to decriminalize consensual same sex activity by repealing Section 377.‘ 305
303 International Women‘s Rights Action Watch Asia Pacific (IWRAW Asia Pacific), Citizens‘ Initiatives on
UNCEDAW, Bangladesh (CiC-BD), Combined Sixth and Seventh Alternative Report to the UN CEDAW Committee, December 2010 (p56) http://www.iwraw-
ap.org/resources/pdf/48_shadow_reports/G2L/Bangladesh/Report_CIC_BD.pdf Accessed 15 July 2013
304 International Women‘s Rights Action Watch Asia Pacific (IWRAW Asia Pacific), Citizens‘ Initiatives on
UNCEDAW, Bangladesh (CiC-BD),Combined Sixth and Seventh Alternative Report to the UN CEDAW Committee, December 2010 (Introduction) http://www.iwraw-
ap.org/resources/pdf/48_shadow_reports/G2L/Bangladesh/Report_CIC_BD.pdf Accessed 15 July 2013
305 International Women‘s Rights Action Watch Asia Pacific (IWRAW Asia Pacific), Citizens‘ Initiatives on
UNCEDAW, Bangladesh (CiC-BD), Combined Sixth and Seventh Alternative Report to the UN CEDAW Committee, December 2010 (p56) http://www.iwraw-
ap.org/resources/pdf/48_shadow_reports/G2L/Bangladesh/Report_CIC_BD.pdf Accessed 15 July 2013
21.04 The alternative CEDAW report of December 2010 stated that:
‗The social and cultural invisibility of same sex practices in Bangladesh is accompanied by the dearth of scholarship on the topic. New research shows that sexually
marginalized populations, especially those belonging to the hijra or transgender/trans- sexual community, are systematically persecuted by state agents through another provision, that of Section 54 which allows for arrest without warrant in case of
―suspicious‖ behavior. The police are notorious for gross infringements of the rights of sexual minorities, especially hijras, kothis or ―effeminate‖ males and MSM (males who have sex with males) through invoking Section 54. Harassment, physical and sexual abuse and extortion, as well as arbitrary arrest and detention, are standard forms of violence these groups face for not conforming to heterosexual norms. Moreover, many HIV/AIDS awareness programs have been threatened or closed down because of intimidation and violence by law enforcing authorities. Sexual and gender minorities have minimal access to medical services and treatment of any kind, because of social stigma and the discrimination by medical service providers. Loss of traditional forms of livelihood and overt discrimination in employment opportunities has pushed hijras primarily into sex work for survival. Hijra and MSM sex-workers are routinely subjected to rape as well as intimidation in exchange for police ―protection.‖ Notably, only one case has actually been filed under Section 377 in independent Bangladesh although there is some anecdotal evidence that the law is used to intimidate sexual and gender minorities. According to the UPR report, most Hijra and Kothi identified persons cited bullying as one of the preeminent reasons for dropout from state sponsored primary schools. Many are reported to have turned suicidal and experienced acute
psychological trauma. There is now an emerging self-identified gay and lesbian culture in Bangladesh, although little is documented on the kinds of rights violations to which such groups are subjected. Research indicates that ―effeminate‖ boys face serious bullying and intimidation in educational and other social settings. Self-identified gay teenagers are often forced into psychiatric and medical regimes in order to be ―cured‖.‘
306
21.05 The US State Department 2011 Country Report on Human Rights Practices:
Bangladesh, (USSD 2011), released on 24 May 2012, observed that:
‗Although overt acts of discrimination against LGBT individuals were fairly rare – partly because few individuals openly identified their sexual orientation – there was significant societal discrimination. Openly gay individuals, particularly those from less affluent backgrounds, found that their families and local communities ostracized them. Some sought refuge in the traditional transgender or ―hijra‖ community.‘307
21.06 The US State Department 2011 Country Report on Human Rights Practices:
Bangladesh, (USSD 2011), released on 24 May 2012, observed that:
306 International Women‘s Rights Action Watch Asia Pacific (IWRAW Asia Pacific), Citizens‘ Initiatives on
UNCEDAW, Bangladesh (CiC-BD), Combined Sixth and Seventh Alternative Report to the UN CEDAW Committee, December 2010 (p57) http://www.iwraw-
ap.org/resources/pdf/48_shadow_reports/G2L/Bangladesh/Report_CIC_BD.pdf Accessed 15 July 2013
307 US State Department, 2011 Country Reports on Human Rights Practices: Bangladesh, 24 May 2012. (Section 6) http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204395 Accessed 23 May 2013
The main text of this COI Report contains the most up to date publicly available information as at 31 July 2013. 105
‗On May 24, The New Age newspaper announced that the Passport Office would allow those who identify as neither male nor female to identify as ―other‖ on their passports.‘
308
See Section 31: Exit and return
21.07 The US State Department 2012 Country Report on Human Rights Practices:
Bangladesh, (USSD 2012), released on 19 April 2013, observed that:
‗Consensual same-sex sexual activity is illegal, but the law was not enforced. Lesbian, gay, bisexual, and transgender (LGBT) groups reported that police used the law as a pretext to bully LGBT individuals, particularly those seen as effeminate men. There were several informal support networks for gays, but organizations to assist lesbians were rare. Gays and lesbians often faced strong family pressure to marry opposite-sex partners.
‗Attacks on LGBT persons occurred on occasion, but those offenses were difficult to document because victims desired confidentiality. The Bandhu Social Welfare Society, a local NGO, reported 137 cases of assault against LGBT persons during the year, as compared with 109 in 2011. Strong social stigma based on sexual orientation was common and prevented open discussion of the subject.‘ 309
21.08 Aidsdatahub‘s (a website that co-ordinates data on HIV/AIDS in the region to assist Governments in their response to the problem) country review of Bangladesh, September 2011stated that:
‗The estimated number of Men who have Sex with Men (MSM) ranges widely – from 40,000 by the National AIDS Program to more than 1 million. … Many MSM had female sex partners and/or were married due to societal pressure to marry and become fathers.
… Male to male sexual activity is an offense under section 377 of the Bangladesh penal code and there is an absence of non-discrimination laws and regulations which specify protection for MSM. Due to legal issues and societal norms and pressure, MSM rarely disclose their status.‘ 310
21.09 An article in The Guardian, Gay, straight or MSM? dated 6 August 2009, reported that in Bangladesh, how you define your sexuality can depend on class, education and family circumstances. 311
21.10 The Constitution, under Article 28, protects citizens against discrimination by the State on the grounds of religion, race, caste, sex or place of birth - but is silent on sexual orientation. Article 31, however, states that the protection of the law is the inalienable
308 US State Department, 2011 Country Reports on Human Rights Practices: Bangladesh, 24 May 2012. (Section 6) http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204395 Accessed 23 May 2013
309 US State Department, 2012 Country Reports on Human Rights Practices: Bangladesh, 19 April 2013. (Section 3) http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204395 Accessed 23 May 2013
310 Aidsdatahub, Bangladesh, Country Review September 2011
http://www.aidsdatahub.org/dmdocuments/Bangladesh_Country_Review_2011._HIV_and_AIDS_Data_Hub_for_A sia-Pacific_(2011).pdf Accessed 17 July 2013
311 The Guardian (UK) Gay, straight or MSM?: 6 December 2009,
http://www.guardian.co.uk/commentisfree/2009/aug/06/bangladesh-gay-sexuality Accessed 17 July 2013
right of every citizen. 312 The ILGA Survey 2013 in its LGBTI rights global overview section did not identify Bangladesh as prohibiting discrimination in employment based on sexual orientation or gender identity. Nor did the state make illegal hate crimes based on sexual orientation or gender identity and there was no provision in the Constitution to prohibit discrimination based on sexual orientation. 313
21.11 There is no military conscription in Bangladesh. COI Service does not have information on whether LGBT persons are generally barred from voluntary service or careers in the military or in the various security services.
See Section 9: Military Service
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