Denied Property Right of Transgenders in Bangladesh

SOURAV AND HUSSAIN

Social convention says there are two types of people based on their chromosome and genitalia: men and women. Charles Darwin’s writings on sexual selection reaffirms, only these two sexes exist for the purpose of reproduction. But in fact, various cultures have long recognized members who buck the biological binary. These people are neither man nor woman; or both; or people with male body and female behaviour or vice versa. Today there are many populations with alternative identities, such as hijras in South Asia, kathoeys in Thailand, and muxes in Mexico. Surprisingly, there also remains state like Iran that does not recognise alternative genders and legalise sex reassignment surgery.

Though the concepts of human rights and equal rights have been a matter of 20th century, only recently has the fight for legal recognition and respect of a ‘third category of gender’ along with male and female gender has begun to bear fruit. The terminology not only categories itself as third but also makes a superiority and inferiority between the rest two genders identity. From ancient Greece to digital Bangladesh, the political, cultural and legal emergence of a complex, controversial term, ‘third gender’ has not been so easy. 

However, ‘Hijra’ or mostly male to female transgenders have a long history in South Asia.

The saga of plights of hijras, a community that includes intersex people – those born with both male and female biological traits, transgender people – those whose gender identity does not match their sex assigned birth, eunuchs, unix and even cross-dressers have a long history in this region which got legal shape by enactment of the Criminal Tribes Act, 1871 during the colonial era. This piece of legislation tagged them as genetically criminal which ultimately condemned the dignity of transgender people, humiliating them in social echelons and consequently forcing their family to separate them form society. Eventually they had adopted begging, prostitution and other questionable professions for their survival. This Act was repealed in 1949 but exploitation and discrimination towards them continued. 

On this note we should remind ourselves, the Nepal Supreme Court (2007) was the first in this south-east Asia region to officially recognise the third gender people. At least 10,000 hijras currently live in Bangladesh, according to national statistics, but the number can be 10 times higher. They have had the right to vote since 2009. In November 2013, the government announced the recognition of "hijra" as a third gender category in all national documents and passports. But no progress has been made so far to ensure the rights of the “third gender” citizens of Bangladesh. Even severe allegations rise from them that basic rights like access to public toilets and burying after death are also being denied due to the only reason of their unique gender identity.

Various rights groups are continuously pressurizing the stakeholders to eliminate the social stigma towards transgender community and ensure equal civil rights to merge them within the mainstream. Like many other basic rights, transgender people are also deprived from inheriting property. However, the much-needed discussion on right to inherit property of a transgender person is highly neglected in this territory. Alike most south Asian countries, also in Bangladesh being biologically non-binary, i.e. neither male or female, is socially considered to be a "gender disorder", hence at the birth or early childhood, most of the parents get rid of their transgender babies which also in the long run influence to form a mentality in both parents and transgender children that s/he is not a part of that family, hence not entitled to inherit property.

However, by national law none can be deprived of getting his/her ancestral property due to their gender identity only. We should be mindful of the fact that the principle of equality and non-discrimination along with human dignity and social justice has been incorporated under the Constitution of Bangladesh. Moreover article 27 guarantees 'equality before law' and 'equal protection of law' while article 28 prohibits any discrimination only on the grounds of sex, gender, race, place of birth, religion etc. Rather this apex law of the soil, empowers government to take special initiative in favour of underdeveloped and marginal people. Hence denying right to inherit property from family on the basis of purely generic non-conformed gender identity is a clear violation of constitution, the supreme charter of the land. 

Depending on the type of law the state has, Inheritance law governs the rights of a decedent's survivors to inherit property. However, the share of property is highly dominated by gender identity of each person according to religions which are also discriminatory. Nonetheless, State cannot deny one’s basic rights to inherit property by alleging the absence of provision in religion merely. If the religion is silent on this point, then the State must take initiative to fulfil its constitutional obligation not to differently treat anyone and to ensure equality among it's citizens. It would be erroneous to forget that every human has right to choose his/her gender identity and the State cannot discriminate anyone based on such issue.

However, in 2014, the Law Commission of Bangladesh has recommended the Government to legislate the draft Elimination of Discrimination Act which is under active consideration of the government now. The draft includes discrimination against any individual and community and the grounds for discrimination are religion, faith, community, race, caste, custom, culture, occupation, ethnic originality, gender (including transgender), sexual orientation, disability, pregnancy, marital status, place of birth etc. It suggests punishment for creating obstacles in getting inheritance property rights up to ten years imprisonment or ten lac taka fine or with both. Regrettably we have yet to notice any development regarding upholding rights of third gender community while government shows its concern to eliminate discrimination from the society.

In addition, neither any of the law having force in the country prohibits transgender persons’ from inheriting property nor any religious practice banned them from getting property. Rather both the national law and religious rules remained long silent on this matter. Our conservative society has only argument in hand that there is no precise provision of distribution of property to the transgender or Hijra in religion, but this cannot be an acceptable argument to snatch away individual’s such significant basic rights with huge monetary value. 

Therefore, the State must come forward to uphold a legitimate right of a community and must arrange a mechanism to ensure their property right. It's worth mentioning here that in December 2009, the Supreme Court of Pakistan ordered that the government shall officially recognise a separate gender for Pakistan's hijra community, which includes transgendered people, in much discussed Khaki v Rawalpindi case. The same court also ordered the authority to take effective initiative for non-binary citizens' right to inheritance, education, marriage, registration for identity, voting etc. Besides this, in August 2017 two bills aimed at achieving equal rights for the transgender community have been tabled by Pakistan’s National Assembly. The bills seek to safeguard the rights of trans people “as par with other citizens and residents of the country” by amending the Pakistan Penal Code and the Code of Criminal Procedure. The Transgender Persons (Protection of Rights) Bill 2017 has also been introduced. The proposed legislation would make it illegal for transgender people to be denied of property inheritance, education, and access to housing. The law, if enacted, would also forbid anyone from harassing or discriminating on the basis of gender identity.

Therefore, this is high time for Bangladesh to legislate a new piece of law to ensure their equality, all sorts of rights including right to inheritance of property and to eliminate exploitation and discrimination from every sphere of their life in order to facilitate social acceptance of this community and access to State provided social services. Additionally, in absence of any religious edict the legislature may make mandatory provision for the parents to gift or make a will of certain portion of property for their transgender children.

MR. SOURAV IS PURSUING LLM IN INTERNATIONAL ENERGY LAW AND POLICY AT THE UNIVERSITY OF STIRLING, UK. He is also an Assistant Professor & Coordinator, Department of Law, Dhaka International University, Dhaka, Bangladesh; Advocate, Supreme Court of Bangladesh; Legal Researcher & Activist. His personal blog is: www.legalviewsofsourav.blogspot.com and facebook profile is: raisul.sourav

MS. HUSSAIN IS A BARRISTER AT LAW (THE HONOURABLE SOCIETY OF LINCOLN’S INN). She is also an Advocate at Dhaka Judges’ Court, Legal Researcher and, Equality and Human Rights Activist. Her personal blog is: www.farzanashumona.co.uk and facebook profile is: farzana.shumona

Published on the Young Observer of the Daily Observer on 18 January 2018 at page 8 & 9.