Md.Nazmul Ahad*
Abstract
Human being is the best creation in the world. As a best creation everyone should respect each other. Usually two recognized sex’s people (male and female) are lived everywhere on the earth. Facts tell us that neutralized neutral-sex persons are a rarity. Neutralized neutral-sex persons or transgender are treated as Hijras or hermaphrodites or eunuch. The present circumstances are not strong enough to establish the rights of the hermaphrodite community in Bangladesh. This paper analyses the present positions of the community as well as trying to find out the inefficiency of the laws in Bangladesh for protecting the right of them and maintaining the same side by side, thus to find out the ambiguities in the several laws in Bangladesh. It also suggests for amending some laws and expanding the social awareness regarding the hermaphrodite community in Bangladesh.
Keywords: Hermaphrodite, Hijra, Eunuch community, Marginalized people, Third gender.
1. Introduction
Hijra, Hijla, Hijli, Hijre etc are commonly used to mean hermaphrodite. Hermaphrodites are those classes of people who have sexual complexity. According to Cambridge Advanced Learner’s Dictionary, Hermaphrodite means a person with both male and female sex organs[1]. The term Hijra is often translated as “hermaphrodite” and the archetypal Hijra is raised as a man and undergoes ritual removal of the genitals to become a Hijra. However, anthropologist Serena Nanda explains that many Hijras come from other sexually ambiguous backgrounds: they may be born inter sexed, be born male or female and fail to develop fully at puberty, or be males who choose to live as Hijras without ever undergoing the castration procedure. The cultural category “Hijra” appears to be a magnet for a variety of sexual and gender conditions: ambiguous sexual anatomy, impotence, infertility, homosexuality, and others, which may not have an analogue in Western cultures[2]. Serena Nanda’s research shows that some persons labeled Hijra in India are both prostitutes and celebrants of rites of passage. Hindu epics, Puranas and mythology are replete with the courageous feats of true hermaphrodites who, within these scriptures, have always been referred to as the ‘third sex. In the eighth century, castration of males in order to put them on specific jobs began of a large scale” writes Serena Nanda. Hundreds of years back, guards to king’s Harems were castrated to ensure that no co-habitation between royal wives and guards took place. This led to the creation of the ‘third sex’ – the castrated hermaphrodites[3]. This article aims to critically analyses and evaluates to the inefficiency of the existing Laws and Rules relating to hermaphrodite or Hijra community in Bangladesh and provides some suggestion to protect and establish the rights of the community.
2. Methodology:
This research is basically based on some primary as well as secondary data. Primary data has been collected through interview for Hijra people in Sylhet, Bangladesh. For this purpose 50 Hijra people were interviewed. Fifteen isolated questions had been asked to determine their socio economic and legal status. Three questions were set about their knowledge on existing family and state laws regarding their rights. Some questions were set to understand various types of harassment from several corners. How they are maintaining relationship with the concern family and whether they want to return or attach with their family were also addressed. Some were asked to gather information about their satisfaction on their profession and residence. This case study was conducted from 10 October 2012 to 1 November 2012. One research assistant helped me to run the study perfectly. Help was also taken from two Sylhet based N.G.Os, namely, Badhon Hijra Shangho, and Bandhu Social Welfare Society (BSWS), who are working for the development of Hijra community.
3. Discussion on Hermaphrodite
i) Scientific Views of Hermaphrodite:
Normal human cell contains 23 pairs of chromosomes. Of these, 22 pairs are called autosomes and the remaining one pair (two X in case of female or one X and one Y for male) is the sex chromosome. This pair of sex chromosomes determines the sex of the child. Sex chromosomes quite like the autosomes also carry genes that influence sexual differentiation by causing the by potential gonad to develop either as a testis or as an ovary. Two normally functioning X chromosomes, in the absence of a Y chromosome and the genes for testicular organogenesis, lead to the formation of an ovary (female). The reverse situation (an X and a Y chromosome) lead to the development of a testis (male). This whole process of determining the sex of an embryo is done by some complex chemical process. The development of secondary sex symptoms (as for an example, beard for male and breast for female) is also conducted through a similar complex chemical synthesis involving genes, hormones and enzymes within the human body. Any disorder in the structure of the gene or abnormal hormone secretion or inborn error of hormone synthesis may result in the birth of a hermaphrodite (known as “Hijra”). This can happen naturally without any reasonable explanation or because of gene mutation by radiation[4].
ii) Bangladesh Constitution and Hermaphrodite:
The Bangladesh Constitution does not mention clearly of sexual orientation or gender identity. It contains certain provisions that may impact the constitutional rights of the Hijra citizens. The Constitution provides state shall endeavours to ensure equality of opportunity to all citizens[5]. Fifteenth amendment of the Constitution of Bangladesh puts a new clause of the Article 19 namely -3 as “The State Shall endeavour to ensure equality of opportunity and participation of women in all spheres of national life”[6]. All citizens are equal before law and are entitled to equal protection of law[7]. “The state shall not discriminate against any citizen on grounds only of religion, race, cast, sex or place of birth. But clause (2) of the article provides that women shall have equal rights with men in all spheres of the state and of public life[8]. But there is no mentioning the interest for the Hijra community.
There shall be equality of opportunity for all citizens in respect of employment or office in the service of the republic[9]. But clause 2 of the article has cited sex in English version, no problem here, because sex includes all sexes but in Bengali version translated into male and female. We know that if there any confliction is raised between two languages then Bengali version will prevail. That is why Eunuch community is deprived of for the ambiguities circumstances.
iii) Rights of Hijra People in Real Life Situation
Human being is the best creation in the world. Every person by birth has right to enjoy all civil, political and social rights. Every moment the Hijras are being physical and mental harassed in the all spheres in the country due to their indeterminate status. Real experience has been gathered from the Hijra people by author regarding harassment either physically or mentally or of both[10].
All of them have acknowledged to be victim of mental torture in the all spheres in the country and 30 person of them to be victim of physical and another 20 person of them did not open their mouth regarding physical harassment. Shuva Shikdar[11]said that “Everyone thinks that we have no right to live in the society. It seems that we were born to hear bad comments and catcalls. We want to live in the society as human being not as depriving community”. “Everyone has the right to life, liberty and security of person”[12]. “Every human being has the inherent right to life. Law shall protect this right. No one shall be arbitrarily deprived of his life”[13]. What kind of life are these Articles talking about? Isn’t the quality of life more important than its quantity even for people marginalized by the mainstream as the lowest of society where the word ‘human’ is under question? A survey was conducted by author on the people of the Hijra community for getting some real feature and data regarding the community.
From above data of the survey, we can easily say that hermaphrodite community of Bangladesh is almost fully deprived from civil, political and social rights. About 45% of the attending members opinion that present laws are not enough to protect their rights; some family laws in Bangladesh are either ignored or refused their portion to inheritance. Only 6% of them had knowledge about Muslim inheritance but did not have knowledge how to get that portion from the deceased person due to insufficient law. No one has desired to stay at one’s existing profession. Everybody of them wants permanent housing and social security. They were also demanding that government of Bangladesh should make suitable laws for the betterment of Hijra community. About 30% of them were tortured several times by the member of the law enforcing agencies in Bangladesh[14].
iv) Right to Vote and Other Important Rights:
A healthy democracy makes sure that all members of the community have equal access to the political process. Bangladesh is a democratic nation where governments are elected by popular vote. However, even though almost all Bangladeshi over 18 years old have the right to vote. Political participation is the basis of democracy and a vital part of the enjoyment of all human rights. The right of all people to vote in elections, without any discrimination, is one of the most fundamental of all human rights and civil liberties. On the other hand it would be unreasonable to restrict the right to vote ‘On the ground of physical disability.
In Bangladesh, qualifications for registration as voter is “a person shall be entitled to be enrolled on the electoral roll for a constituency delimited for the purpose of election to the parliament, if he- (a) is a citizen of Bangladesh; (b) is not less than eighteen years of age; (c) does not stand declared by a competent court to be of unsound mind: (d) is or is deemed by law to be a resident of that constituency; (e) has not been convicted of any offence under the Bangladesh Collaborators (Special Tribunals) Order, 1972[15] .The Hijra as part of the human being has also right to enjoy all rights. The ‘Hijra Community’ (hermaphrodite or eunuch), are almost deprived of their right to vote because of their distinctiveness. Hijras are left with no choice and are bound to identify themselves as either male or female[16], to cast their vote. Bangladeshi law and related election documents, only recognize the dominant two sexes. This is the first time they were considered to cast their vote, either as male or female[17].
Hermaphrodites in Bangladesh are not given their deserved rights. They are being restricted from enjoying and practicing rights, which other citizens are allowed to practice and enjoy. Article 27 of the constitution of Bangladesh guaranteed equality before law on the basis of citizenship not on the basis of sex[18]. But the Hermaphrodite community is essentially deprived of several rights under the Bangladeshi law, because Bangladeshi law recognizes only two sexes, male and female. All Bangladeshi governmental documents therefore are meant to be prepared for male and/or women. Hermaphrodites are left with no choice they are to identify themselves as either male or female in those documents. As a result, Hijras do not enjoy equal rights to vote, own a passport or a driving licence, claim employment or get health care.
v) Hijras and Gender Discrimination:
Members of the Hijra community[19] pointed out that because only two sexes are identified by the state. The Hijras are deprived of the right to vote, own a passport, a driving licence, open a bank account or apply for employment due to lack of recognition as Hijra identity. Shuva Shikdar also said “From April 2008 to April 2009 I had been working as the post of cook of the BRAC office in Gulshan Niketon, Dhaka by hiding my Hijra identity. During one year, they used to force to give my identity and later I had been suspended due to Hijra sex. I was educated, well cook, well behaved but suspended due to different sex.
So, we want to get recognition of third gender as Hijra beside male and female”[20]. Liza[21] described some of the difficulties faced during the last elections, even disguised as women, on pen and paper. “When I went to vote in the last elections, I could not join any queue, as I did not belong to any specific gender”. Sundori[22] said that “I am neither man nor woman. But society knows I exist. So why should I have to hide my identity”. Despite facing deprivation, Hijras have a role to play in the society. The traditional livelihood of the Hijra community is centered on blessing newborns for a fee. Hijras are also largely hired for entertaining weddings, birth rituals and other celebrations in rural Bangladesh. It is even believed that they can get rid of bad luck. People of the Hijra community are fully depriving of getting property of the praepositus.
Liza[23] also said that “I have deprived of getting property after the death of my father. My two brothers have not given that property due to my different sex. Firstly, they deprived me of property and lastly got out from my father’s house where I was born. Advocate Bijoy Kumar Dev, Judge Court, Sylhet said “We have a lot of responsibilities to save them and protect their rights. As marginalized people no one can deny their legal rights”. He also said that Hijras are now enjoying the right to vote with proper recognition, not as man or as woman, but as human beings with a third gender. This is a new addition to their legal status[24].
vi) Access to the Job Market:
In absence of proper recognition, Hijras are not being able to find themselves a suitable job. “It’s beyond imagination that I could get job” said Sagorika[25]. Earlier, the Hijras used to sing and dance when a new baby was born. This was one of their major earning sources. However due to lack of social awareness about the Hijras, these things are now stopped. Hence the Hijras are losing livelihood in an increasing rate. As an alternative, the Hijras are choosing the option of being sex worker. One of the problems that arose, as a result of getting into this profession, is lack of security. Everyone around them, starting from police, common people, hooligans etc, is torturing them, both physically and mentally. They have nowhere or no one to go and ask for help. Now-a-days there are some NGOs who are working for the Hijras. For example: Badhon Hijra Shongho, Shocheton Shilpi Shongho (SSS), Bandhu Social Welfare Society (BSWS), Social Advancement Society etc are working at Dhaka, Chittagong, Sylhet and other big district town in Bangladesh. “The eunuch community is harassed everywhere. Its natural but no one in the society can accept their attendances. We are working for increasing social awareness and consciousness regarding HIV/AIDS. We have already listed about 800 eunuchs in the Sylhet region”. Said Haran Kumar Datta[26]. Apart from these, there are some NGOs who too worked a bit for Hijras, but their main aim was health issue of HIV/AIDS and Gays. But only these numbers of NGO are not enough to take care of all concerned areas of the Hijra community of Bangladesh. The cooperation of the government is also required along that of the private individuals. The government needs to work harder to create awareness among the common people of Bangladesh[27]
vii) The Inheritance of Hermaphrodite in Bangladesh.
A. Mohamedan Law.
The share of the hermaphrodite is calculated both as a male and as a female. According to Hanafi Fiqh the hermaphrodite gets whichever share is smaller. This is the majority opinion of the Companions of the Prophet (sm). This is also one of the two views of Imam Shafi. The other view being that the hermaphrodite is given the smaller share and the balance reserved until the gender determined. This is the view followed by the Hambali Fiqh. In case the hermaphrodite dies without the gender being determined or the gender can not be determined even upon reaching puberty, the hermaphrodite is given the average share of the male and female. That is to say half share of the male and female combined[28]. According to Hanafi Fiqh the hermaphrodite gets which ever share is smaller. This doctrine may be illustrated by the following explanations.
Explanation no.1
“A man dies leaving a son, a daughter and a child who is a hermaphrodite”.
If the hermaphrodite is taken as a female, she inherits as a daughter, thus… Daughter gets 1/4 as (Q.S) Hermaphrodite as daughter gets1/4….as…(Q.S) Son gets…..…1/2……as……..…..(R).
If the hermaphrodite is taken as a male, he inherits as a son, thus… Daughter gets …..1/5……as………(Residuary & applied the doctrine of Tasib) Hermaphrodite as son gets.…………2/5……as………(Residuary & applied the doctrine of Tasib) Son gets 2/5……..as…… (Residuary & applied the doctrine of Tasib).
So, if the hermaphrodite inherits as a female ( i.e daughter) she would be entitled to 1/4 of the estate. However if the hermaphrodite inherits as a male ( i.e son) he would be entitled to 2/5 of the estate. We know that 1/4 is smaller than 2/5 and therefore the hermaphrodite would inherit 1/4 according to the Hanafi Fiqh and considered as female child[29].
Explanation no.2
“Sokina dies leaving behind mother, husband and two children who are hermaphrodite”. If the hermaphrodites are taken as a female, they inherit as daughter, thus Mother gets 1/6 or 2/12 reduced…….to…….2/13 Husband gets 1/4…or……..3/12…reduced…….to……..3/13 Two hermaphrodites as daughters get 2/3 or……..8/12 reduced.to…8/13 Calculating after applying the doctrine of Aul is 2/13+3/13+8/13=13/13=1.
If the hermaphrodites are taken as male, they inherit as son, thus Mother gets1/6…as..(Q.S). Husband gets 1/4…asb(Q.S). Two hermaphrodites as sons get 7/12.as…….……(Residuary). So, if the hermaphrodites inherit as female ( i.e daughters) they would be entitled to 8/13=0.615 of the estate. However if the hermaphrodites inherit as male ( i.e sons) they would be entitled to 7/12=0.583 of the estate. We know that 0.583 is smaller than 0.615, therefore the hermaphrodites would inherit 7/12=0.583 according to the Hanafi Fiqh and considered as male child.
Explanation no. 3
“A man dies leaving behind two daughters, a full brother’s child whose sex is different to determine and consanguine brother’s son as the only heirs”.
The full brother’s child will inherit as either son of full brother (SBf) or daughter of full brother (DBf). Note that SBf can inherit as residuary and DBf as distant kindred.
If SBf inherits as a male, the distribution of inheritance is thus Two daughters gets 2/3 ..as….(Q.S). Hermaphrodite as SBf gets.1/3…as (R). Consanguine brother’s son gets..Nil.. (Excluded SBf).
If DBf inherits as a female, the distribution of inheritance is thus Two daughters get 2/3…as.(Q.S). Hermaphrodite as DBf gets. Nill (due to distant kindred) Consanguine brother’s son gets…1/3…as…(Residuary) [30].
Discussing about the above comparison, it is very tough to know what portion of inheritance should get a hermaphrodite from the deceased person. First explanation, hermaphrodite gets inheritance as female, in second explanations, hermaphrodites get inheritance as male and third explanation is very critical and gets as female and obtained zero portions. Maximum numbers of the hermaphrodite community have no clear conception about what portion and how can they get inheritance.
B. Hindu Family Law:
According to doctrine of Dayavaga or Bengal school there are three types of heirs as recognized. Viz, Sapindo, Sakullo and Samanodok. We know that nearer in degree excludes more remote. According to this school there are 53 number of Sapindo recognized. Son, Son’s son and Son’s son’s son’s of the deceased person attend as the first grade of heirs of the Bengal school and daughter of the deceased person can attend as the number of the grade no 6. But a hermaphrodite has no right to attend as heir of the deceased person under the Hindu law as well as the relevant family laws in Bangladesh.
viii) Organizational Efforts:
Some organizations in Bangladesh have taken initiative very few years ago to do for the betterment of the Hijra community. As for example Bandhu Social Welfare Society (BSWS) was formed in 1996, The Badhan Hijra Sangho is conducted by government fund, Care Bangladesh and The Hijra Welfare Association etc. But these organizations are not enough to protect their rights. Konok[31], said “we are sick of our traditional means of livelihood – singing, dancing for Baksheesh or being reduced to sheer beggary in trains and on streets. I am not pleading for sympathy. I want a change in social attitudes. I want it as a matter of right, rights which other members of society normally have access to”. Since 2006, the government has employed Hijras in the state of Bihar as tax collectors, singing loudly about the debt outside the defaulter’s premises until they are shamed into paying up − one of the most effective tax recovery methods ever used in India. Yet for many Hijras the method of making ends meet is prostitution [32]. Surveys are not available regarding the Hijra population in the country. Surveys conducted by various NGOs often vaguely mention that there are around 1.5 million Hermaphrodite people living in Bangladesh.
5. Recommendation and Conclusion
For a long time the Hijra community has been demanding for changing their present position. Followings are their voices in a nutshell:
1. To ensure their access to education
2. To procreate employment opportunities.
3. To create housing facilities
4. To vouchsafe them the status of a human
5. To ensure medical facilities
6. To ensure social rights accorded to other citizens.
7. It is needed to acknowledge that the hermaphrodites are not curse of nature. It is better to acknowledge them as blessing of nature.
8. Since a blind, deaf or any other physically challenged person has the privilege to enjoy the rights of citizenship like other normal citizens. So Hijras shall not be restricted and ensured to their status like others.
9. Since Hijras are suffering from psychological problems or genuine handicap beyond their control in our socio-economic perspectives. So the State can solve their the psychological and financial problems and make their life comfortable and productive for the society at large.
10. Hijras should enjoy the proper recognition not as man or woman but as human being with a third gender.11. Hijras proper identity should be included in different laws in Bangladesh and ensure their rights too. 12. Muslim family law should immediately be amended and ensure the exact portion of inheritance for the community. 13. Hindu and other family laws should also be amended and ensure their rights regarding obtaining of property. 14. State should ensure free education facilities and should establish schools, accommodations and other facilities for them. 15. State should ensure employment opportunities to the hermaphrodites on the basis of education and also establish quota system for them.
16. State should immediately conduct a survey to determine the exact number of Hermaphrodites people living in Bangladesh.
17. State should ensure reserve seat for the community in the parliament and other general elections on the basis of the Hijra population.
18. State should immediately change the classification of the number of gender and should be as male, female and Hijra.
19. State should ensure to make housing facilities for the Hijra community.
20. Official forms should change and make three boxes viz male, female and Hijra rather than 3rd gender.
21. Since Hijras are considered as “asexual others”, they are frequently exposed to AIDS[33] and STD[34]. So beside the State mechanism the NGO’s can play a vital role for the establishment of their rights. For this purpose NGOs should immediately redefine their perspective and attitude towards them and embark on actions accordingly and created an opportunity for living in the society beside all classes of people with proper harmony of the society.
[1] Cambridge Advanced Learner’s Dictionary. Third Edition, (2008),Sylmar, California 91392, USA
[2]Serena Nanda: Neither Man Nor Woman: the Hijras of India, (Belmont, CA: Wadsworth Publishing 1990), p.114
[3] Ibid.
[4] Nirupona Chowdhury and Sharif Rahman, “A space for Hermaphrodite: Centre for Alternatives’’, (2003-2010), Lecture Theatre, Faculty of Arts,University of Dhaka. http:// Accessed on 25.10.2012
[5] Article 19(1) of the Constitution of the People’s Republic of Bangladesh,1972
[6] Article 19(3) of the Constitution of the People’s Republic of Bangladesh,2011
[7] Article 27. Constitution, op.cit
[8]Article 28(1). ibid
[9] Article 29(1). ibid
[10] A Survey was conducted by author from 10 October 2012 to 1 November 2012 in the Sylhet region, On the People of Hijra Community and then some selected questions were asked among 50 persons of the community. About fifteen questions were asked to the Hijra person. They replied their opinions.
[11] Shuva Shikdar is an Outreach Supervisor of Badhon Hijra Shangho, based in Sylhet. I personally interviewed on 20 October 2012.
[12] Article 3 of the Universal Declaration of Human Rights(UDHR),1948
[13]Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR),1966
[14] Survey, op. cit
[15] Article 122(2) of The Constitution of the People’s Republic of Bangladesh, 2011
[16] Though government recognized them as third gender but that is in the pen and paper only so far.
[17] The Daily Star (Bangladeshi Daily) report on ‘’Hijras still deprived of franchise’’ On Friday, April 3, 2009.
[18] Article 27 of The Constitution of the People’s Republic of Bangladesh,1972
[19] To get more information regarding Hijras community, an interview was conducted by the author to the group leader and the members of Hijra community in the Sylhet region from 10 October, 2012 to 1 November, 2012. Basically two welfare associations are doing work for the hermaphrodite community in Sylhet region viz Badhon Hizra Shangho (the United Hizra Organisation) and Bandhu Social Welfare Society (BSWS). At thevery first time they were refused to give interview due to depriving their legal rights. After my request, they stated some opinions.
[20] Shuva Shikdar op.cit.
[21] Liza is a membe of Badhon Hijra Shangho, based in Sylhet. I personally interviewed on 20 October 2012.
[22]Sundori is a President of Badhon Hijra Shangho, based in Sylhet. I personally interviewed on 21 October 2012.
[23] Liza, op.cit
[24] Interview of Adv. Bijoy Kumar Dev, Judge Court Sylhet is taken by Author.
[25]Sagorika is a membe of Badhon Hijra Shangho, based in Sylhet. I personally took interview on 22 October 2012.
[26] Haran Kumar Datta is a Counselor of Bandhu Social Welfare Society (BSWS), based in Sylhet. I personally took interview on 17 October 2012.
[27] Aniqa Naorin. “Third gender: In search of recognition”. Law Programme Officer Law Dev (Bangladesh) a law and development policy research institute. http://accessed on 20.10.2012
[28]Dr.Amir Hussain. “The Islamic Law of Succession”. 1st edition (2005), pp. 263 to 267.
[29] Ibid, pp. 263 to 267.
[30] ibid, pp.263 to 267
[31]Kanok is a member of Badhon Hijra Shangho, based in Sylhet. I personally took interview on 22 October 2012.
[32]Harvey, Nick, “India’s Transgendered – The Hijras, article in New Statesman, May 13, 2008 “, http://accessed on 22.10.2012
[33] AIDS stands for Acquired Immune Deficiency Syndrome.
[34] STD stands for Sexually Transmitted Disease.
The Author is * Principal Officer , Legal Affairs & Recovery Division, ONE Bank Limited CHQ, Kawran Bazar, Dhaka, Ex-Senior Lecturer, Department of Law, Sylhet International University, Sylhet, Email: ahad.nazmul@gmail.com.
