Penal Code 1860, Section 377 Unnatural Offences
Section 377 is originally a British colonial law. It criminalises “carnal intercourse against the order of nature” effectively criminalising consensual sexual activity between men. The maximum penalty is life imprisonment.1
LGBT Bangladesh is an organisation, in a constant fight to establish an equal right for Homosexuals in Bangladesh and Strongly demands decriminalisation of Section 377 from Penal Code of Bangladesh.
For a number of years, the US Department of State has reported that Section 377, while not actively enforced, is used by authorities to harass and intimidate LGBT people and to limit the ability of LGBT organisations to formally register. There are reports that the law is used to harass on the basis of both real or perceived sexual orientation.
In May, police in Bangladesh arrested 27 men “for homosexuality”. The police stormed a community centre outside of Dhaka where they claimed students had been having a party. A Rapid Action Battalion spokesman told the press that the men had been arrested “for homosexuality” and that it had not been determined under which law they would be formally charged. The men were eventually charged with violating the Narcotics Control Act 1990.
In October, media reported that a lesbian couple from the Jhalakati District of Bangladesh were arrested and jailed, and subjected to a ‘gender test’. A case was filed against them under Section 290 of the Penal Code for ‘unsocial activities’. This followed reports in June 2013 that two women in Bangladesh were arrested for marrying in secret.
Statements by Public Figures
In September, Bangladesh’s Permanent Representative to the UN Abdul Momen told the Dhaka Tribune that Bangladesh did not support the recommendations of the International Conference on Population and Development (ICPD) to work to reduce vulnerability and eliminate discrimination based on sexual orientation and gender identity. “It goes against our values. Like many other countries including those Muslims and Christian, we opposed it.”
In October, Muslim groups in the country called for a protest over statements made in April 2012 by Muhammad Yunus, a Bangladeshi born Nobel Peace Prize winner, which criticised the Ugandan (then proposed) anti-gay laws. Director-General of the State-run Islamic Foundation, Shamim Mohammad Afza, was quoted as saying: “Yunus has become an apostate for supporting homosexuality. He must publicly apologise, or we’ll force him to leave the country.”
Yunus has become an apostate for supporting homosexuality. He must publicly apologise, or we’ll force him to leave the country.
In August, Bangladeshi national newspaper, the Dhaka Tribune, called for the decriminalisation of homosexuality: “We do believe that even most people, who object to homosexuality, do not want to see people put in jail for it, do not want the state to waste its resources treating it as a crime, and do not want to create an environment that allows for persecution and immiseration [sic] of homosexuals.”
Persecution and Discrimination
In October, a trans woman, Pinki Khatun, was elected as a councillor (and Vice-chair of the council) in Kotchandpur in the West of the country. “I am very delighted. I campaigned door-to-door and people have responded positively. I did not face any discrimination or hate campaigns… My aim is to work for the betterment of women and protect their rights. I’ll work for hijras so they can live honourably in society.”
Trans rights activist, Anonnya Banik, called the result a “big achievement”, adding that “it will create positive impact in the society and inspire other trans people. I think it reflects change in Bangladesh people’s attitude towards trans people.”
In April, Xulhaz Mannan, the founder of Bangladesh’s only lesbian, gay, bisexual and transgender (LGBT) magazine, and Mahbub Rabbi Tonoy were hacked to death by suspected Islamist militants in Dhaka. The investigation into their deaths faced significant delays. The deaths also generated a chilling effect within the LGBT community. Following the event and continued harassment, many members of LGBT community, including the leadership of key support organisations, reduced their activities and sought refuge both inside and outside of the country. It was reported that Ansar al-Islam, the Bangladeshi division of al-Qaeda claimed responsibility for the killings.
The US Department of State’s Human Rights Country Report observed that “discrimination against persons based on their sexual orientation increased.” The report also noted the increased activity of Islamic extremist organisations, including attacks on the LGBTI community. ILGA’s 2017 ‘State-Sponsored Homophobia’ report noted that “throughout 2016 the levels of violence and threat from religious radicals that LGBT people have been exposed to have exponentially risen, and the State has not offered protection. As such, many have been forced to leave their homes and flee the country for fear of their lives.”
The US Department of State’s Human Rights Country Report also remarked that the Hijra population “a marginalized, but recognized, part of society” experienced “elevated levels of fear, harassment, and law enforcement contact in the wake of violent extremist attacks against vulnerable communities.”
A Human Rights Watch report, published in July, reported that a group of hijras were subject to harassment and invasive and abusive physical examinations at a government hospital as a requirement to join a government employment program.
According to Bangladeshi NGOs, law enforcers allegedly use Section 54 of the Criminal Procedure Code to harass LGBT people. Speaking at a Bandhu Social Welfare Society workshop, Barrister Sara Hossain, honorary director of Bangladesh Legal Aid and Services Trust (BLAST) said that law enforcers are using Section 54 of the Criminal Procedure Code to harass LGBT people. Besides being politically motivated, the arrests sometime take place simply to secure bribes. Under Section 54 of the Code of Criminal Procedure of 1898, individuals may be arrested under suspicion of criminal activity without any order from a magistrate or a warrant.
LGBT groups reported that police used the law as a pretext to bully LGBT individuals, particularly those seen as effeminate men. Some groups also reported harassment under a suspicious behaviour provision of the police code. It was also reported that attacks on LGBT persons occurred occasionally, but such offences were difficult to document because victims desired confidentiality. The Bandhu Social Welfare Society, a local NGO, reported 33 cases of assault, 82 cases of domestic violence, and 154 cases of discrimination against LGBT persons between September 2013 and September 2014. Strong social stigma based on sexual orientation was common and prevented open discussion of the subject.
During its Universal Periodic Review, Bangladesh rejected recommendations from Brazil, Canada, Norway, Slovenia, Mexico, Argentina, Honduras, Belgium, Germany, Italy and Finland to remove Section 377 of the criminal code and adopt effective protection from discrimination, harassment and violence against LGBTI community.
In April, the UN Human Rights Committee expressed concern about the “criminalization under section 377 of the Penal Code of consensual sexual acts between same-sex couples… stigmatization, harassment and violence against lesbian, gay, bisexual and transgender persons, barriers to assistance in seeking employment of ‘hijras’… by the administration of invasive and humiliating medical examinations to prove transgender status.” The Committee went on to recommend that the State party decriminalise consensual sexual acts between same-sex couples and provide protection from violence and harassment to LGBT people.
Same-sex activity is not an acceptable norm to any community in the country. Indeed, sexual orientation is not an issue in Bangladesh.
GOVERNMENT UPR RESPONSE, 2009
A complaint was filed against Denmark before the Human Rights Committee by a Bangladeshi national who had been denied asylum in Denmark. The facts of the case consisted of the claimant, MKH, suffering torture and violence on account of his relationship with a childhood friend and that if he was deported to Bangladesh he would be at risk of persecution and torture. His asylum claim was rejected as not credible and it was considered that he would not be at risk because relevant legislation is not enforced in Bangladesh. The Human Rights Committee determined that deportation to Bangladesh would, if implemented, violate the author’s rights under article 7 of the Covenant.
By decision of the Government, Bangladesh legally recognised the Hijras population – a South Asian feminine gender identity – as being a ‘third sex’ for the purposes of obtaining a passport and voting.
During its Universal Periodic Review, Bangladesh rejected recommendations to decriminalise consensual same-sex sexual conduct. However, the government acknowledged the existence of the LGBT population, contrary to its position in the 2009 UPR, during which the foreign minister stated there were no LGBT individuals in the country. Additionally, the government allocated funds for the transgender population in the national budget.
1. Penal Code 1860, Section 377 Unnatural Offences
“Whoever voluntarily 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. Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” Full text.