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OP-ED: A law out of step with the times

  • Published at 10:38 pm June 16th, 2020
GAVEL book law

What purpose does Section 377 still serve?

In 2014, Roopbaan magazine, the first and only LGBTQ magazine in Bangladesh, organized a diversity parade during the Pohela Boishakh rally. It was a vibrant event representing the LGBTQ community, and the first pride rally in Bangladesh. 

Many international newspapers reported on the event. I was living in the United States then, and like many Bangladeshis felt very proud of my country. I viewed the rally as a symbol of Bangladesh’s tolerance and diversity.

I had a rude awakening to reality in 2016, when Xulhaz Mannan, the founding editor of Roopbaan, was assassinated in his home by terrorists, along with his friend and LGBTQ activist Mahbub Rabbi Tonoy. I was shocked by the brazen murder. 

I found myself worried for the nascent LGBTQ community of Bangladesh; a community about which I, as an outsider, had a superficial understanding. The exact size of the LGBTQ community in Bangladesh is not known as there have been no academic studies or attempts to gather the data.

In the US, about 4% of the population identify as LGBTQ, while in Europe it’s about 6% of the population. Taking this into account, let us guesstimate that 4% of the population in Bangladesh is LGBTQ, which is 6.4 million people. 

This is a very large population whose identity is not acknowledged by society, or worse, who face active persecution for that identity. An identity they did not choose but one they were born with. The lack of sex education in Bangladesh means that most people, including members of the LGBT community, are unaware of what lesbian, gay, bisexual, or transgender mean. 

There is a tendency to term all LGBTQ community members as hijra, which is inaccurate. Hijras are one of many communities that fall under the LGBTQ term. There need to be organizations that look after the welfare of the community and provide education to LGBTQ individuals and family members. 

One of the most difficult things for a member of the LGBTQ community is coming out to their family members. This can be a very difficult and emotional process. They risk being disowned by their family or worse, face violence and abuse. 

LGBTQ welfare organizations can provide education and counselling to the family members so that they can understand what it means for someone to be LGBTQ and hopefully accept them. The best solution to prejudice is education. 

These organizations can work for the welfare of the community. Studies have shown that members of the LGBTQ community are overrepresented among the homeless population as a result of being kicked out of their homes by their family members when they come out. LGBTQ welfare organizations can provide them with support and shelter. 

There are so many things such organizations can do, but they cannot because of Section 377. In some of the news articles covering the Pride rally, they talked about the law criminalizing homosexuality, but not before mentioning that Bangladesh is a Muslim majority country. I found that to be odd, as if being a Muslim majority country is the reason for this law. That is not the case. 

The law, Section 377 of Bangladesh Penal code, was created by the British when India was a colony. It was British imposition derived from a Victorian sense of morality. The British used anti-LGBTQ laws to target Hijra communities of the subcontinent who did not face persecution in the subcontinent before the arrival of the British. 

I find it ironic that Western writers now refer to this British made law with hints that it originates from Bangladesh being a Muslim majority country. Professor Harbans Mukhia, a scholar of medieval India, has said that while the Mughals did not accept homosexuality, they did not persecute homosexuals. They were tolerant, like most native rulers of India, towards the homosexual community. 

Mubarak, son of Alauddin Khalji, Sultan of Delhi, had a relationship with a nobleman of his court. That being said, we bear some responsibility here by keeping in place an outdated law that the United Kingdom has long removed from their penal code.

It is a colonial-era law that has no place in today’s Bangladesh. The law is not actively enforced and no one has been prosecuted under it. The law is still a massive hindrance to LGBTQ welfare organizations to legally register and organize. 

The law is also used to harass and intimidate members of the LGBT community. The repeal of the law will help reduce discrimination against the LGBTQ community. Bangladesh has a secular judicial system with a constitution that treats all its citizens equally. 

This law explicitly discriminates against the LGBTQ community and violates their rights under the constitution of Bangladesh to be treated as equal citizens. Bangladesh has shown that it can make progress when it comes to the rights of the LGBTQ community. 

In 2014, it recognized the hijra community as neither male nor female, which provided them with a degree of legal protection. It also made it easier for them to receive government documents showing their preferred gender identities. The government has also carried out a number of initiatives to empower the Hijra community to various degrees of success. 

In October 2019, Pinki Khatun, became the first elected transgender office holder in Bangladesh when she was elected vice-chairman of the Kotchandpur Upazila Parishad in Jhenaidah District. The government should repeal Section 377 as it is a law that is unnecessary, as evident from its lack of application, and as it violates the rights of the LGBTQ citizens of Bangladesh. 

This law is a black mark on our country and contributes to its negative portrayal in the international media. It is an inherited law from the colonial era that was imposed on us by the British Raj. The government can and should do a lot more for this minority community, but repealing this law would be a good start. 

Mahir Abrar is a lecturer in the Faculty of Business Administration at American International University-Bangladesh. He can be reached through his website www. mahirabrar.com

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