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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 166
April 24, 2010

This week's issue:
Human Rights advocacy
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Your Advocate
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Your Advocate

This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of 'The Legal Counsel'. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Reader's query

I would like to know about LGBT community in Bangladesh. I would also like to know about the rights they may have. Thanks.

Thanks for your query. I understand that you reside in the UK where it is not uncommon to meet persons who are homosexuals. The UK is one of the most recent liberalized countries in the world so far as LGBT issue is concerned.

The term 'LGBT' is not a very common one especially in this part of the Globe. LGBT collectively referred to 'Gay, Lesbian, Bisexual and Transsexual'. Sex means the sum of peculiarities of structure and function that distinguish a male from a female organism. Sexuality means a desire/urge to have sex which emerges from time to time in both male and female with their growth in age. Sexual orientation exists along a continuum that ranges from exclusive heterosexuality to exclusive homosexuality. Bisexual persons experience sexual, emotional and affectional attraction to both their sex and the opposite sex. Persons with a homosexual orientation are sometimes referred to as a Gay (for men and women, but mostly men) and Lesbian (for women only). Transsexuals are, on the other hand, persons who have converted their sex from one to other, i.e., a man who wants to be a woman and has medical treatment to make him into a woman or a woman who wants to be a man and has medical treatment to make her into a man. Such change of sex is generally done for the purpose of prostitution and thereby to increase income. There is no legal acceptability of gender transformation in our country. There may be probably many reasons for a person's sexual orientation, which may be different for different people.

As a starting point of my response to your query, it is relevant to mention here that the Constitution of the People's Republic of Bangladesh categorically protects the fundamental rights of the citizens. The Constitution holds that State shall not discriminate any person on the ground of religion, race, caste, sex or place of birth. Neither such discrimination can be made on these grounds in case of any opportunity to public employment. This protection includes non-discrimination on ground of sex. However, this is notable that this is a very basic protection and does not at all cover protection of LGBT or securing the rights of LGBT with regard to their sexual orientations. In fact such question does not at all arise under the present legal regime of our country, which I shall attempt to discuss shortly.

Under section 377 of the Penal Code of Bangladesh, it is a crime to have carnal intercourse voluntarily against the order of the nature with any man, woman or animal and such offence is punishable with life imprisonment and with fine. This provision in the Penal Code is sufficiently clear enough to reach a conclusion that the Bangladeshi law does not recognize LGBT rather the same is prohibited as a criminal offence. As a corollary to this same sex marriage, civil partnership, civil union or the same is not recognized and not allowed in our country.

No 'hate crime' exists in Bangladesh to address crimes committed by the perpetrator motivated by the sexual orientation or gender identity of the victims.

In many countries of the world, especially western liberal countries, homosexuality is absolutely lawful and even same sex marriage or civil partnership is permissible. On February, 1994 in Strasbourg, the European Parliament (Parliament of the European Union) voted a resolution affirming equality of rights of homosexuals. They recognized, in particular, the right to marry and to adopt child by the homosexuals. The laws of those western liberal countries have on principal reflected their change in the social view point to homosexuality and aimed to reflect and secure greater degree of human rights. They believe it is the human right of the person concerned to decide and practice sex as per his/her individual sexual orientation. The situation is utterly different in our country. Our social, moral, cultural and religious values are significantly dissimilar from those of the western democracies. Islam seriously opposes homosexuality so do Hinduism and Christianity. But, religion is not the only reason why homosexuality is proscribed in Bangladesh. Indian Penal Code contains the same provision prohibiting homosexuality and treating it as a crime.

Recently, however, the Delhi High Court passed a ruling rendering s.377 of the Indian Penal Code violating Articles 14, 15 and 21 of the Indian Constitution, which provide for equal opportunity of life and equality before law. Judges opined for amending s. 377 of the Indian Penal Code and thereby legalizing sex between consenting adults as “Equality should not be read literally but in true spirit”. However, the Court's ruling does not apply to those below the age of 18 years. The Court also ruled that, the Indian Law Commission's report recommending the legalization of gay sex should be considered by the Central Parliament of India. The ruling was welcomed by gay rights activists but was not accepted by leaders of different religion groups and different corners of the public at large. Earlier in 2004 the Delhi High Court dismissed a similar petition terming it as an academic challenge to the constitutionality of a legislative provision. On 2008, the Central Government of India also opposed gay sex for being immoral. Therefore, it's time to see whether the Central Government of India will appeal against the latest order of the Supreme Court.

Thus, it is the culture as a whole which militates against the legalization of LGBT in this region of the world, including Bangladesh. Because of the cultural, religious and above all the legal bar for homosexuality, there are not much people in our country, who belong to the LGBT community, at least in a visible manner. Despite the same, I am aware of at least 2 gay and 1 lesbian group operating in Bangladesh in a very small scale. While answering your query, I am not further inclined to judge the correctness of the existing laws of our country, but shall only comment that it is not at all a forthcoming incident, when homosexuality will be legalized in our country.

For detailed query contact omar@legalcounselbd.com.


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