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Against the Odds The impact of legal, socio-cultural, legislative and socio-economic impediments to effective HIV/AIDS interventions with males who have sex with males in Bangladesh

Aditya Bondyopadhyay Shivananda Khan


Against the Odds The impact of legal, socio-cultural, legislative and socio-economic impediments to effective HIV/AIDS interventions with males who have sex with males in Bangladesh

Aditya Bondyopadhyay Shivananda Khan

This report is dedicated to Dr. Carol Jenkins without whose unstinting support to ensure that MSM in Bangladesh have access to appropriate sexual health services, Bandhu Social Welfare Society would probably not exist today.


Study conducted by the Bandhu Social Welfare Society. Principal Consultants/Researchers: Aditya Bondyopadhyay Technical and Legal Consultant Naz Foundation International, Institutional Development of Human Rights In Bangladesh (IDHRB) Š Bandhu Social Welfare Society & NFI 2002 and 2004


Contents

List of tables

4

Executive Summary

5

Introduction

9

Research methodology

13

The findings

15

The findings in the context of social constructions of masculinities in

23

Bangladesh and the kothi framework The legal framework in which discrimination of MSM take place in Bangladesh

27

Recommendations

29

Note of thanks and acknowledgement

31

Appendix A: Questionnaire

33

Appendix B: PrĂŠcis of jurisprudence on same sex relationships

39

Acronyms

44

The organisations

45 A G A I N S T T H E O D D S

3


A G A I N S T

T H E

O D D S

List of Tables

4

Table 1:

Educational qualifications

15

Table 2:

Marital status

15

Table 3:

How have the police harassed you

16

Table 4:

What kind of harassment have you faced from mastans

16

Table 5:

If you have been raped, then by whom

17

Table 6:

What is the frequency of such rape/sexual assault

17

Table 7:

Because of feminised behaviour, have you been raped or sexually assaulted

17

Table 8:

Do you consider yourself a kothi

18

Table 9:

Have you faced unprovoked harassment

18

Table 10:

Does being feminised affect you at your workplace

18

Table 11:

Being kothi do you get some income opportunities

19

Table 12:

Have you ever been harassed by fellow students or teachers

20

Table 13:

Without teacher/student harassment would you have progressed better

20

Table 14:

Would you be better of if you were not a kothi

20

Table 15:

Have you ever thought of, or attempted suicide

20


Executive summary

B

andhu Social Welfare Society (BSWS), Bangladesh, and Naz Foundation International (NFI), conducted a study in to the impact of legal, sociocultural, legislative and socioeconomic impediments to effective prevention strategies to reduce the impact of HIV/AIDS among males who have sex with males1. Bandhu Social Welfare Society is the leading sexual health promotion agency for males who have sex with males in Bangladesh, with services being provided in 5 cities, including the capital, Dhaka.

This study was designed to gain a better understanding of the impact of social, legal and judicial processes upon the lives of MSM in Bangladesh and how this can have a significant effect upon any HIV/AIDS and sexual health4 programme focused on their needs. Not only does poverty, class and education level stigmatise individuals along with the fact of HIV infection, but also the specific gendered role and identity that some MSM identify with. Thus kothis are doubly stigmatised because as biological males they are sexually penetrated - and thus not perceived as men. Their feminisation, their crossing of the gender roles and barriers accepted as social norms, reinforces the stigmatisation, leading to exclusion and denial of access to services and to the social compact.

4 Sexual health: the WHO definition of sexual health (World Health Organisation. Education and Treatment in Human Sexuality. The Training of Health Professionals:1975. Technical Report Series Nr. 572) states: "Sexual Health is the integration of the somatic, emotional, intellectual and social aspects of well-being, in ways that are positively enriching and that enhance personality, communication and love. Fundamental to this concept are the right to sexual information and the right to pleasure. Thus the notion of sexual health implies a positive approach to human sexuality, and the purpose of sexual health care should be the enhancement of life and personal relationships and not merely counselling and care related to reproduction or sexually transmitted diseases."

O D D S

This stigmatisation and social exclusion further disempowers such feminised males educationally and eco-

T H E

1 MSM - This is usually an acronym for men-who-have-sex-with-men. However, the term men can be problematic within the context of different cultural definitions of man, manliness, and manhood. Males are not usually thought of as adult until they are married, and often sex between males can occur when one of both of them is a child. 2 A self-identifying label, for those males who feminise their behaviours (either to attract "manly" male sexual partners and, or, as part of their own gender construction, and usually in specific situations and contexts), and who state that they prefer to be sexually penetrated anally and, or, orally. Kothi behaviours have a highly performative quality in social spaces. Self-identified kotis use this term for males who are sexually penetrated, even when their behaviour is not feminised. This is the primary and most visible framework of male to male sexual behaviours. Kothis state that they do not have sex with other kotis; however, this is not always true. They may also be married to women. Another term that is sometimes used and means the same as kothi is maigha. 3 A koti label for any "manly male." Male-to-male sexual behaviours are usually highly gendered in terms of sexual roles. Most male-to-male sex in Bangladesh appears to follow this pattern, where a kothi is not defined as a man, thus enabling the penetrating partner to still see himself as manly. A panthi is by definition a man who penetrates, whether it is a woman and/or another male. Panthis may also be married to women. Their occupations vary across the social class spectrum from rickshaw drivers to businessmen.

Key Findings

A G A I N S T

In Bangladesh (like elsewhere in South Asia), visible MSM tend to fit a framework of gendered orientation and sex roles. Thus, we have the primarily penetrated male who often identifies as a kothi2, and is usually quite visible at certain public sites, and his normative masculine partner, whom the kothi labels as a panthi3. These normative masculine males tend to come from the general male population and are usually invisible in this context.

This small study, using questionnaires, in-depth interviews, and Focus Group Discussions (FGDs) as the study instruments, accessed 124 feminised males (selfidentified kothis) in four cities in Bangladesh, Chittagong, Dhaka, Mymensingh and Sylhet through snowball techniques within the Bandhu networks. In all 124 questionnaires were completed, along with 8 FGDs and 12 in-depth interviews.

5


nomically, increasing poverty, with consequent necessity to involve themselves in sex work as a primary source of income. Such feminised males are vulnerable, not only because of poverty, but also because of the sexual and gender5 roles they play within male sexual practices which often leads to significant levels of manly sex partners, sexual abuse, violence, rape, and harassment, often from an early age. In other words, social justice and human rights issues for MSM are a complex matrix of issues, concerns, and needs that reflect personal psycho-sexual histories, economics, poverty, gendered roles, social-cultural polices and attitudes, as well as legal concerns, that create a context for MSM, but particularly for feminised males, of low-esteem, disempowerment, and marginalisation that leads to further abuse, violence and social exclusion. It is a vicious circle that constantly reinforces itself. On the other hand, the masculine6 partners of kothis easily merge into the general normative male society, their sense of masculinity maintained because they are the penetrators, not of other men, but of "not-men".

A G A I N S T

T H E

O D D S

Power inequality dynamics arising from Bangladesh constructions of masculinity, social attitudes towards feminised males and their sexual practices, sexual abuse, assault and rape, stigmatisation and poverty, discrimination and disempowerment, all configure the lives of most kothi. As a consequence they play a significant role in the emotional, sexual, physical and economic exploitation of feminised males, and give rise to a range of physical, psychological, and emotional

6

5 Gender: There are some basic biological differences between female and male bodies, linked to their different roles in reproduction. But beyond these differences, many societies define different roles, rights, and responsibilities for women and men. Gender is the term used to refer to these socially defined differences between men and women. Gender differences are based on widely shared beliefs and norms within a society or culture about male and female characteristics and capacities. These beliefs and norms about gender usually create inequality between men and women. In most societies, men have more political, economic, and social power than do women. Such gender inequalities have a significant impact on women's and men's sexual health. Thus Gendered framework: The word gender is a classifying noun and but often when the term is used, it relates solely to women. The author has used the term gendered as an adjective to describe a state. In Bangladesh where there is often fairly strict social policing of gender (ed) boundaries, and where the primary (and visible) framework of male-to-male sexual behaviours is constructed not around sexual orientation, but around gender (ed) identities, the term gendered framework is used as a short-hand description of this state of affairs, i.e. males/men who identified as kothis do not perceive themselves as males, but as "not-males" or feminised males. 6 Masculinity is interpreted as the predominant and "hegemonic" framework, which defines how a male should behave and act personally, sexually, socially, and culturally. However, it is also recognised that there are different constructions of masculinity that vary across cultures, age groups, sexual orientations, sexual preferences, actual behaviours, gender identifications, economic classes, and religions.

problems, which further increase vulnerability and disempowerment. This disempowerment creates significant levels of suicidal impulses and self-damage, an expression of self-hatred and despair. And this of course leads to significant increases to risks of STI/HIV as well as impeding successful implementation of risk reduction strategies. Those who are meant to be protected, sustain abuse and violence. Many kothis not only face harassment, sexual violence and rape from law enforcement agents, but also from those whom they have called friends in schools and colleges, from those in positions of trust such as relatives, neighbourhood elders, elder friends, and teachers. Gang rape is not uncommon. And of course such forced sex is always unsafe and often results in serious physical injury such as a ruptured rectum, internal haemorrhage and so on. One of the central issues that have arisen from NFI research and understanding is that often it is effeminacy and not the factual knowledge of male-to-male sexual behaviour that leads to harassment and violence. This harassment and sexual violence results from the fact that many kothis do not live up to the expected normative standards of masculine behaviour. It is this belief that leads to the notion that those who are feminised can be exploited and abused, that being feminised somehow weakens the person, a notion often harboured by the kothis themselves. "I don't mind if my 'husband' beats me up. It only shows how manly and powerful he is." (From an interview) "When my parik7 beats me, I feel as helpless as a woman. Since I want to be a woman, it actually makes me feel good." (From an interview) Accepted notions around effeminacy are therefore one of the major factors that lead to disempowerment and opens kotis to abuse and assault and to a refusal of service provision. The fact that kothis themselves have internalized these notions so strongly, means that specific tools will need to be developed for kothis in order to empower them to start valuing their lives and enhancing their self respect. It is clear that legal, judicial, political and social advocacy is urgently needed that not only is about living with HIV/AIDS or about social justice and human 7 A kothi label for the "husband" of a kothi. The parik may also be married to a woman, and may well have sex with other women as well as males.


rights for MSM. It will need to include challenging accepted notions of masculinity and femininity so that discrimination and stigmatization, social exclusion and marginalization can be effectively challenged as they confront the daily lives of kothis.

Recommendations In light of the above-mentioned findings, the following recommendations have been made: 1) Since local police harassment and sexual assault is a major impediment to sexual health promotion, intensive training needs to be done with the police at all levels. This sensitisation should be two tiered and should be conducted separately, to maximise its impact. a) The first tier should target police officials who are often not aware of the types of harassment that are committed by local police, nor are they sensitised to the issues of the human rights of MSM and the national policy framework on HIV/AIDS under which the intervention work is conducted. It is therefore necessary to target them with training and sensitisation programmes so as to generate an appropriate human rights environment with law enforcement agencies.

5) If the option of a legal challenge is chosen for bringing about the necessary changes in the sodomy laws, then adequate funding needs to be provided to support this. 6) Training of the police should include issues around gender as a main focus of activity. This is necessary to arrest the incidences of harassment and abuse caused by insensitivity to gender issues. 7) There should be provision of resources to conduct advocacy programmes with the education department to make gender training in higher educational institutions, especially institutions that are all male, a regular part of the education curricula. This would help in reducing the harassment of 'effeminate' and 'not-masculine' males. 8) One of the immediate needs of kothis is economic empowerment. This can be brought about by the following: a) By the formulation of appropriate micro-credit and income-generation schemes.

O D D S

2) It probably would not be viable to attempt to directly intervene with mastaans with sensitisation. But the effect of their abuses can be minimised by intervening with the police. If the police can be sensitised to the kinds of abuse and harassment that MSM in general and intervention agencies in particular face in the field from mastaans, and if they can be urged to take appropriate and prompt action against them, then it is likely that such harassment will reduce to a large extent.

4) To minimise the incidence of rape and sexual assault, legislative changes need to be introduced that provide for effective remedy against male-on-male rape. This can be done by either introducing male rape provisions in the penal code, or by amending the sodomy law (Section 377 of the Bangladesh Penal Code) so that it covers all male-to-male non-consensual sexual acts while not criminalising consensual acts. This would make it possible for MSM who are victims of rape to seek legal remedy without criminalising themselves in the process. This can be done either by involving the National AIDS Programme in advocacy efforts targeted at legislative change, or it can be done by bringing about a constitutional challenge to the present definition and usage of the sodomy law in the court of law.

T H E

c) There may well be resistance to any such training process. But one way of overcoming this would be to involve the state agencies responsible for implementing HIV/AIDS prevention programmes to organise the training process with the involvement of police officials. In this way HIV prevention agencies can be utilised to train police at both levels.

3) As a first step, it is suggested that the police sensitisation be taken up in all the cities in which MSM HIV intervention projects are currently operational, and should be sustained along with indicators that would measure impact.

A G A I N S T

b) The second tier should target the local police. It is more often these local police that are responsible for the various harassment and abuses of MSM. It is also they who often obstruct outreach work. Training with local police should involve not only sensitisation, but also developing with their participation, appropriate and actionable mechanisms that addresses such abuse and violations as and when they occur. Such training and sensitisation should be on-going.

Such sensitisation can be a part of the training package that is developed for the police.

b) By the institution of vocational and other nonformal education for MSM as they are often forced to leave formal education early, leading to erosion of economic capabilities. 7 9) The existing projects conducting HIV intervention


A G A I N S T

T H E

O D D S

programmes with MSM should be given the resources and training to develop their skills, to start providing psychological and psychiatric help to those who have repressed trauma due to violence and sexual assault that they have faced. Appropriate mental health strategies need to be developed to address this.

8

10) Each city that has operational projects on MSM HIV intervention should be given the resources to train a group of local lawyers on the jurisprudence of human rights issues and MSM, so that they can form a core team whose services can be accessed whenever MSM human rights abuses occur.


1

Introduction

I

n Bangladesh (and from the evidence, across the rest of South Asia as well), masculinities and sexualities8 are primarily based on gendered performances and sex roles. Thus, in the context of male-to-male sex, identities and sexual practices are within such a gendered framework, where two male populations sexually interact. The penetrated partner tends to be self-identified as a feminised male and visible, whilst the penetrating partner perceives himself (and is perceived by his sexual partner) as a part of the general male population and tends to be therefore invisible. Thus, it is these self-identified feminised males who tend to be readily accessed by MSM sexual health programmes, with the intention that they will be able to negotiate risk reduction sexual behaviours with their manly partners.

But on a deeper analysis it was apparent that sustained behaviour change had not come about because of the disempowering environment in which sexual encounters take place, and could primarily be due to the violation of various human, civil, and personal rights of MSM. This had also been borne out of the findings of the first Bangladesh national meeting on male sexual and reproductive health organised by BSWS in November 2001. The experience in the field was substantiating the accepted postulate that the best way of preventing the spread of HIV was by empowering those that are most vulnerable to take control of their 9 See BSWS Mid-Term Impact Assessment available from BSWS office, 99 Kakrail, Dhaka Bangladesh, bandhu@bdmail.net

O D D S

8 Sexuality: In this study, the word sexuality is interpreted as the totality of how one perceives and defines oneself in the context of sexual desire, gender identity, actual behaviour, and sense of sexual self, within specific cultural contexts, and how others define one. It is also recognised that there are a multiplicity of sexualities within any given culture that also vary across age groups, sexual orientations, sexual preferences, actual behaviours, gender identifications, economic classes, and religions.

However, despite several years of sustained sexual health promotion producing increased knowledge and awareness of HIV/AIDS/STIs, along with an increase of regular condom from the substantively low rate when the agency began its programme ( from 6.23% when BSWS conducted its 1997 initial situational assessment to 35% from its mid-project Impact Assessment conducted in 20019) it was believed that the rise in sustained safer sex behaviours was not sufficient to significantly reduce the potential of an HIV/AIDS epidemic on this vulnerable population. This was attributed to various reasons, including poverty, lack of negotiating skills, criminalisation of same-sex sexual behaviours, stigmatisation of male to male sexual behaviours, closetedness associated with male sex work, ostracisation, and denial of public health facilities to MSM.

T H E

This is the framework of Bandhu Social Welfare Society's

Naz Foundation International (NFI) has been providing technical assistance and support to BSWS since its inception as well as the model of good practice for sexual health programmes for MSM.

A G A I N S T

The promotion of safer sexual behaviour and sexual health among MSM has primarily revolved around the provision of safer sex information, along with community building strategies, and access to sexual health clinical services. This strategy is based on the understanding that knowledge and awareness of risky behaviours, early treatment of sexually transmitted infections, ready access to sexual health products such as condoms and water-based lubricant, along with community-based organising and self-help, will encourage and sustain behaviour change through adoption of risk reduction behaviours.

(BSWS) community-based sexual health programme.

9


own lives. The high degree of violence and violation of rights acted against this empowering process, thus effectively reducing the effectiveness of the prevention intervention efforts of BSWS. In its fieldwork and counselling services, BSWS was encountering increasing levels of a range of abuses of MSM; physical, sexual, and law-enforcement. It was apparent to BSWS and NFI that such abuses of the various human rights of MSM affect their self-esteem, negotiating power, and ultimately increase their vulnerability to HIV/AIDS. Since there had been no systematic study into the patterns and nature of such abuses, and what lay behind them, it was difficult for BSWS to formulate appropriate strategies and tools to address these abuses. For while BSWS could recognise the factors that often led to these abuses, they could not begin to effectively address them, as the dynamics behind them were not clear. Moreover, in the absence of a systematic study of these abuses, it was difficult to source support for any work related to addressing these violations, as civil society and authorities were often in denial of the existence of any such abuses.

A G A I N S T

T H E

O D D S

The factors contributing to the abuses of the various rights of MSM and increasing their vulnerability that BSWS could identify were legal, sociocultural, legislative, socioeconomic, and attitudinal factors associated with same-sex sexual behaviours in Bangladesh. Being convinced of the need to conduct a systematic study of these factors and the nature of these violations, BSWS sought support from NFI to assist in developing such a study.

10

Arising from the grassroots understanding of BSWS and conducted under the aegis of and with the technical assistance of Naz Foundation International and IDHRB, this study has analysed the dynamics and nuances of issues that increase vulnerability and reduce negotiating power. It is now globally accepted that public health concerns in the case of HIV and the rights of the individual are not in conflict, and the best way to combat the pandemic is to protect and promote the rights of those most at risk, what is term a "rights-based approach to HIV/AIDS". In order to seek address and redress therefore, such a study like this becomes all the more important. It seeks to reassert the above tested hypothesis by identifying the nature of the violations of the rights of MSM, so that appropriate responses to minimise such violations could be formulated. Because, in the case of any violations of rights, there is a

power disequilibrium, it was necessary to also focus on the dynamics of power inequalities within the MSM networks themselves. This has resulted in a need to understand the social constructions of masculinities and sexualities in the Bangladesh context, and their framing of male-to-male sex. Such dynamics play a significant role in the emotional, sexual/physical and economic exploitation and consequently increase HIV vulnerability. In its experience from the field, in the clinical services it provides, and in the counselling that it provides, BSWS was increasingly encountering complications related to sexual abuse, sexual assault, and rape of MSM. BSWS was aware that this gave rise to physical, psychological, and emotional problems, and was responsible for increasing vulnerability to HIV. Therefore incidents of sexual abuse and who perpetrated them were also an area that the study focused on. The other area of the study was to seek the links between rights violations and poverty. Poverty, affects vulnerability to HIV by operating in a multi-directional manner. Sexual and gender orientation and the resultant discrimination based on this, affects livelihood and results in poverty. Discriminatory attitudes, along with the disempowerment that arises, often means that MSM are denied the opportunity to fully exploit their economic skills/potential to earn a decent livelihood. On the other hand poverty itself is disempowering, making the poor open to abuse of their rights. Governmental policies for combating HIV/AIDS in Bangladesh are often in conflict with its penal laws. Therefore, we find that on the one hand that the policy of the government seeks to address male-to-male sexual behaviour for HIV prevention. But on the other hand, we also find the continuation of the criminalisation of male-to-male sex, which discourages those in need of information and services in seeking support. Outreach staff of intervention agencies as well as their clients, are susceptible to law-enforcement abuses, because the criminal laws are in direct conflict with the HIV policies. By doing a study of the laws in place, and the development in the various jurisprudences of the world on the rights of MSM, the agency also seeks to find ways in which such conflicts can be addressed.

Objectives Keeping in mind the above mentioned premises and requirements, the study was conducted to explore the nature of the rights abuses of MSM, and find the legal, social, cultural and attitudinal factors that lead to such abuses. This would include finding the linkages between violence, poverty, sexual abuse and other factors that


affect vulnerability to HIV and AIDS and to discover how the economic development of MSM can be facilitated by strengthening, protecting, and promoting MSM rights, and to identify the positive impact that this would have on MSM HIV/AIDS prevention, care and support. Finally, based on the evidence, make recommendations to work towards reducing human rights abuses of MSM as a central part of a strategy for creating an enabling and empowering environment whereby sexual health promotion amongst such a vulnerable and socially excluded population can be sustained effectively.

Achievements Along with conducting this study and producing a

report on the findings, 60 BSWS staff in the four cities had been trained on the rights of MSM, the importance of human rights in HIV/AIDS prevention (working towards a rights-based approach) and the legal mechanisms that are available to an individual whose rights are violated. As such the skills-training component of this study enabled these staff to disseminate this legal literacy to the client population of BSWS. Along with this, background research was conducted on the existing jurisprudence on MSM and the leading judgements on the issue. Service providers as well as legal professionals can use this information to address the issues of the rights of MSM.

A G A I N S T T H E O D D S

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2

Research methodology

T

he target cities for the study were Chittagong, Dhaka, Mymensingh and Sylhet where BSWS already provides services and where local staff were available and able to access substantive networks of MSM. Staff and outreach workers of Bandhu Social Welfare Society in these four were trained to collect data. Further training was conducted on the rights of MSM, on issues of human rights and HIV/AIDS, interview techniques, and how to sustain legal literacy amongst MSM. The study involved the collection of quantitative data through the use of questionnaires. A total of 124 questionnaires were completed. Questionnaires

Table symbol

Dhaka

44

D

Sylhet

30

S

Mymensingh

20

M

Chittagong

30

C

Total

124

Further background reading was also conducted in regard to the issues of male-to-male sex, MSM and Bangladesh. To detail jurisprudential development on the issue of rights of MSM, background research and documentation of case laws was conducted. In summary, the following activities were conducted for this study:

O D D S

Qualitative data was collected through two focused group discussions (FGDs), in each of the four cities and 3 in-depth interviews per city in the four cities. The FGDs and in-depth interviews in Dhaka were also the pilot for the guidelines and the parameters that were developed for the overall study. The research coordinator of IDHRB was involved in the process of monitoring the FGDs. She also conducted the in depth inter-

While the in-depth interviews were orientated toward eliciting personal histories of individuals and how these histories lead to specific emotional, psychological, and often psychosomatic responses in the individual, the FGDs enabled group discussion and social interactions that allowed verification and clarification of the violence and abuse in social and societal settings.

T H E

Originally the study intended to have 30 questionnaires per city. However, following consultations between the Principle Researcher, IDHRB and BSWS, taking into consideration the differing sizes of the cities involved, this was adjusted to reflect this.

From the beginning the study progressed with the understanding that while quantitative data can indicate the degree and nature of violence and violation of rights of MSM, thereby also highlighting the impediments they create to HIV prevention efforts with MSM, it is also critically important to understand the dynamics of such impediments that lead to such violence and violations of rights. Through the FGDs and interviews it was hoped that such knowledge would be gained.

A G A I N S T

Site

views in Dhaka. This was followed by a joint consultation between BSWS, IDHRB and the Principle Researcher, where the result of the pilot was analysed and the final guidelines set for the other cities.

â–  Preparation of questionnaire (see Appendix A for a copy of the questionnaire).

Four one-day workshops conducted to train the staff of BSWS projects in each target city on MSM rights, â– 

13


HIV/AIDS law, and on how use the collected data.

Twelve in depth interviews conducted.

124 respondents (100%) completed questionnaires.

Background reading.

■ Guidelines for FGDs and in-depth interviews developed, piloted, and finalised.

Analysis of data.

Recommendations formulated.

Completion of final report.

Two FGDs were held in each city (total of 8 FGDs in total).

A G A I N S T

T H E

O D D S

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3

The findings

Demographic profile of the respondents 47.5% of the respondents were aged between 20-25 years. 43% of the respondents came from villages. In detailed interviews it became apparent that many had

10 out of 31 married respondents said that their wife knew that they have sex with other men. Only three of this 10 say that their wife had accepted this. All the marriages, where the wife had not accepted the fact that the respondent had sex with other males, were arranged marriages done under family pressure.

11 The cultural understanding of rape involves the act of penetration. The law on rape in Bangladesh as it stands in the Bangladesh Penal Code also reinforces this belief. It also pertains specifically to peno-vaginal rape, with anal or oral rape relegated to the section 377, which deals with 'unnatural sex'. There is neither a concept of, nor any law to deal with male on male rape. However in popular understanding amongst MSM, rape means anal penetration without consent. Other sexual assault might not involve anal penetration, but might still cause psychological and, or, physical harm.

10 4th standard is the fourth year of schooling after kindergarten, and is also called primary education. It is this level of education that is deemed essential to viable literacy. This would indicate that more than half the sample size was functionally illiterate

O D D S

39 respondents (32%) in all said that they also had sex with female sexual partners who were not their wives.

In response to the question as to who were aware that the respondent had male-to-male sex, 122 of the 124 respondents (98%) reported that their friends knew. 42 of the respondents (34%) also stated that it was friends that had subjected them to sexual assault or rape. Assault of a sexual nature11, or rape at the hands of

T H E

Harassment, abuse, and violence

A G A I N S T

migrated to the city looking for employment. 51% of the respondents had only studied up to 4th standard10 or less. One fourth of the respondents were married (25%). Only 4 out of 31 married respondents said that they had got married because they wanted to. Only one said that he had a love marriage as opposed to an arranged marriage. 19 out of 31 respondents stated that they got married due to family pressure.

15


friends, i.e. those who the respondent knew and trusted, at one third of the total respondents, is next only to sexual assault or rape at the hands of mastaan/goonda (traditional terms for hoodlums or bullies) and the police. One of the most prevalent forms of abuse is the rape or sexual assault of kothis. It often results because the accepted notion amongst many goondas and mastaans as well as some police is that kothis are available for sex. Their will/choice is rarely respected when police or mastaan or goondas want to have sex with them. Of the 80 respondents who said that they have been harassed by the police at some point, 29 reported that this harassment was in the form of sexual assault or rape.

noted that all the male sex workers studied were also self-defined kothis and that most of them reported being penetrated where anal sex occurred. The other factor that contributes to the increased vulnerability to violence for MSM in general and kothis in public areas is that mastaans are often in cohorts with the local police. Kothis therefore do not receive any protection from the police when any harassment or assaults by the mastaans are actually reported. This was often reported in the FGDs, as well as in the in-depth interviews. When a participant in Mymensingh was asked as to why he did not tell the local police about the fact that a well known mastaan had forcibly raped and then robbed him, he replied 'I was injured, and bleeding in the anus. When I reached the place where the police persons usually stand, I found that the mastaan was taking money out of my wallet and giving it to the police. I was afraid that if I went to the policeman, he would force me to have sex with him too. I was in no condition to endure that."

A G A I N S T

T H E

O D D S

This pattern was reported in all the other cities. In all the cities participants of FGDs were clearly reluctant to approach the police for any protection. They cited the basic sense of insecurity they felt from the police and the fact that in the past the police had victimised them instead of preventing or acting against the assaulter, as a reason for this reluctance.

16

Mymensingh, Dhaka, and Sylhet reported gang rape by policemen, where kothis were rounded up and taken either to police barracks or the police post and raped by groups of policemen. Such forced sex was always reported as being unsafe (condoms not used) and often results in serious physical injury like a ruptured rectum, internal haemorrhage etc. As well as a significant HIV risk to the kothis, there was also a clear risk of infection for those raping them where condoms were not used. A total of 108 respondents (87%) stated that they have been sexually assaulted or raped at some point. Of these 44 reported that they have been sexually assaulted or raped by policemen, and while 64 reported that they have been sexually assaulted or raped by mastaans or goondas. Rape and sexual assault also results when kothis or male sex workers refuse to pay the extortion demands of hoodlums (mastaans/goondas) or police. It may be

Other than sexual assault, rape, and gang rape, the other harassment that respondents reported facing at the hands of police range from; extortion on the threat of imprisonment, prolonged blackmail, beatings, restriction of movement in public places, and disclosure of sexual practices to mastaans and family, amongst others. 88 (71%) out of the total respondents stated that they


had faced some or the other form of harassment from mastaans. Other than rape, these are extortion (34), beatings (37), and threats and blackmail (28).

62 out of the total 80 respondents who had faced some form of harassment at the hands of the police say that the police guessed that they were MSM from their feminised behaviours, while 62 out of the total 88 respondents who had faced harassment from mastaans also reported that the mastaans guessed they were MSM from their feminised behaviour.

O D D S

did people who other males, find 124 respondents much from their

T H E

In response to the question "how know that you like to have sex with out this fact?" 77 out of the total (62%) replied that they guessed as feminised behaviour.

A G A I N S T

108 out of the total of 124 respondents (87%) thought that they had been subjected to sexual assault or rape, simply because they were effeminate. One of the main findings of the study was that often it was effeminacy and not the factual knowledge of same-sex behaviour that leads to harassment. Many of the interviewees, as well as the FGDs, show that harassment results from the fact that many kothis do not live up to the expected normative standards of masculine behaviour.

17


It is clear that there is a predominate pattern of male-tomale sex focused on gendered behaviours of both sex partners. This is accepted by both the respondents as well as the public they interact with. It is also understood that male feminised behaviour is considered to be less worthy and stigmatised than the accepted standards of how a man should behave. This leads to a notion that those who are feminised can be exploited and abused, and that being feminised some how weakens the person, a notion often harboured by the kothis themselves.

disempowerment and opens kothis to abuse and assault. This is further reinforced as kothis have strongly internalised these notions of the dominant masculinity. 114 out of the total 124 respondents (92%) stated that they considered themselves to be kothis. 97 of these 114 respondents (85%) who consider themselves kothis stated that they had faced unprovoked sexual harass-

One of the interviewees in Chittagong said "I don't mind if my parik beats me up. It only shows how manly and powerful he is". When probed further, he replied, "Actually when my parik beats me, I feel as helpless as a woman. Since I want to be a woman, it actually makes me feel good". Accepted notions around effeminacy are therefore one of the major factors that lead to accepted that lead to

ment at some point in their life, with 48 of them reporting that they have faced such harassment a few times (i.e. more than just once or twice).

A G A I N S T

T H E

O D D S

Education, poverty, sex work, and vulnerability to violence and abuse

18

78 out of the total 124 respondents (63%) stated that the fact that they have sex with other males has had an economic impact on their lives, though 43 of this group, i.e. more than half, claimed that they are better off economically because of this reason. This at first hand appears to be counter intuitive, as it could be thought that they would suffer discrimination in employment, and therefore be worse off financially. The outreach workers who took the interviews revisited respondents and from their response it became clear that most of the respondents who stated that they have benefited economically were involved in sex work. Of all the 124 respondents, 70 (56%) have a monthly income of Taka 1000 to 3000 (US$ 0.60-1.70 per day). Only 10 respondents earn more than Taka 5000 a month (US$ 2.80 per day). Sex work is often not a matter of choice, but of economic necessity. Interviews with male sex workers revealed that if they had other source of income, they would not take up sex work. One interviewee in Sylhet said, "I have been trying for a very long time to save and start a small shop, so that I do not have to do sex work. Then I shall stay as if married with only one


panthi. But everything I earn is used up by my family or for my own needs. I just cannot save enough." When asked why he was not looking for a job, he replied "I have worked as a domestic servant for 6 months. All the three sons of the employer repeatedly had forced sex with me and never gave me anything extra. They beat me up often. With my own shop at least I would not be harassed by employers." He also mentioned, "If the employer, like the three sons of my earlier employer, are to forcibly have sex with me anyway because I am a kothi, I might as well do sex work and get money for having sex". The fact that most sex workers in the FGDs had education levels up to 4th standard or less, and that they had

60 out of the total 124 respondents (48%) stated that fellow students or teachers had harassed them in school or college because they were effeminate. 55 out of the 60 respondents who said that they have faced harassment by teachers or fellow students, also said that their studies have suffered due to this, and that they could have progressed more if such harassment had not taken place. Of the 59 respondents who stated that they did not face harassment in the educational institutions, 40 had studied up to 4th standard or less, 13 up to secondary level, and 5 up to higher secondary level. All those who had gone to university reported sexual harassment in either school or college. This is a clear indication that

Some kothis use oral contraceptives to grow breasts for sex work

O D D S

It is clear from the in-depth interviews as well as from the FGDs that economic deprivation was a result arising from harassment during education. In Mymensingh, in one FGD, six out of the seven participants stated that one of the main reasons why they left school was the harassment that they faced. "How can you study when all the time classmates are making fun of you" is a common refrain. One interviewee in Sylhet said "My teacher called me to his house on the pretext of teaching me maths. But there he forced me to have sex with him. Then he told another teacher who also made me have sex with him. He also threatened to tell the principal that I am a bad person and I have sex. I was so scared; I refused to go to school any more. I was then in my 6th standard (9 years old). I never studied any more". They also stated that they couldn't get a good job because of this and that many were forced to take sex work as a source of livelihood.

T H E

Often sex work itself is disempowering, and reduces negotiating capacity while increasing vulnerability. In Chittagong two interviewees revealed that they would have unsafe sex if the client paid enough. They also stated that many clients are "powerful" and they are helpless in front of them, and cannot insist on safer sex. This pattern was reflected in various degrees in all the other cities.

the rate of harassment of kothis is more significant in higher education establishments. This could also be a factor for the low levels of education and literacy, and high early drop out rates, amongst kothis. A G A I N S T

faced harassment in any small jobs that they could find, also meant that they were forced to take up sex work. Another factor that contributed to this economic necessity is that they often migrated to the cities to earn a livelihood and their families depend on them for income. This acts as a pressure to take up sex work. These factors are also borne out by the fact that 71 out of the total 124 respondents (57%) stated that the fact that they were effeminate had affected them in their workplace. 96 out of the total 124 respondents (77%) say that if they were not kothi, they would have found it easier to find work, or would be doing better in their present employment. 95 out of the total 124 respondents (77%) felt that because of being a kothi, they do not get similar income opportunities as others.

19


The same interviewee from Sylhet states later, "I think my teacher is responsible for my being a sex worker. I am sure I would get a job if I could have studied further. But I know that now and it is too late. If I had then known what I know now, I would have exposed my teacher, and continued my studies". One person, who is a university graduate, and who participated in an FGD in Chittagong said, "My results in the finals were not good, and therefore I have to work in an NGO. Otherwise I would have gotten a good government job. I just could not study due to all the mental torture that my classmates subjected me to. Even the professors used to make fun of me in class."

A G A I N S T

T H E

O D D S

with other males. Of the 25 respondents whose near relatives were aware, only 6 said that they had accepted it. The rest stated that their family had reacted negatively with beatings, forced marriage, disinheritance, throwing the person out of the house, taking them to doctors for curing them of homosexuality, and so on. 46 out of the total 124 respondents (37%) reported that they had faced harassment from religious leaders due to their sexuality.

20

In effect there is a direct correlation between harassment at educational institutions and later vulnerability to HIV, since such harassment result in eroding earning potential, disempowerment, and may even be responsible for forcing kothis into sex work. 66 out of the total 124 respondents (53%) were aware that sex between males was illegal and that it could lead to imprisonment. 25 respondents stated that some members of their direct family knew that they had sex

Psychological impact of violence, abuse, and violation of rights In FGDs and in the in-depth interviews there is clear evidence of the lack of self-esteem and self worth amongst the respondents. In FGDs at Dhaka and at Mymensingh, the participants reported instances where they had subjected themselves to self-inflicted injuries. These injuries ranged from shaving of their


head to make them look ugly, slashing their wrists with blades, cigarette burns etc. On enquiry they revealed that they did it to punish themselves, to draw attention of someone, or at times, to draw sympathy. One participant in the FGD at Mymensingh stated that he drank kerosene to commit suicide. He said, "I really did not want to die. That is why I did not take pesticide, although it was available. I just wanted my panthi to feel sorry." Another person in Chittagong stated that he would have unsafe sex if someone paid the right price. When asked what if he got infected with HIV, he stated, "So what if I die. Is this any life? It is like death." Similar instances had been reported by eight of the 12 interviewees.

manifests itself for some as a desire to change and become 'normal'. This 'desire to change' was understood as changing their sexual preferences and becoming 'non-MSM', 'non-kothi', or 'non-homosexual'. However, when in spite of attempts they are not able to change their desires or behaviours, they perceive this as a weakness of their self. This also erodes the value that they accord themselves. At the same time there is no psychological or psychiatric help available to deal with the trauma of rape, which most appear to have suffered at some point. This, when related with the double stigma of sexual violation and of the notions of shame in a society that proscribes any public discourse on male to male sexual behaviour, also leads to intense frustration and self-hate.

This severe lack of self-esteem and disempowerment arose from a range of factors including a deep sense of shame and guilt. Many respondents seriously believed that either there was something wrong with them, and that is why they were not 'normal', or that they were living a life of sin. "I think Allah is punishing me by making me kothi" said a university graduate. He also mentioned that he tried hard to give up his desire for men, and attempted suicide when his desires did not go away. A sex worker said that he never prayed afterhe had sex. He just did not feel clean.

Kothis in the study also felt that they were not respected by society in general. A common refrain was "society does not accept us" or "society does not respect us". They see the various harassment and abuses as a manifestation of this lack of respect. Often this lack of respect was also internalised and reflected in selfdestructive behaviour. One person in Chittagong admitted that he attempted suicide because he felt unloved and worthless. Further, for some kothis economic disempowerment also led to an eroded sense of self-worth.

Further the pain and trauma of the various repeated and serious abuses that they face due to their feminised behaviours and their sexual preferences from a very young age was also internalised. This was reinforced with the fact that so many kothis feel helpless in finding any remedy or recourse to justice. This leads to an intense frustration with their own self.

For some kothi-identified sex workers in the study, the fact that they had to sell sex in order to survive was a reason for great shame and trauma, and being sex workers, who are often not in control of either their economic or their physical circumstances, they regarded themselves as dirty and unworthy.

O D D S

To demonstrate the rate of harassment as well as indicate the level of awareness of harassment even if a respondent did not report such harassment, the following question was posed: "Even if you have not been harassed, do you know of others who have been so harassed?" 96 out of 124 respondents (77%) stated that they know of others who have also faced such harassment. Of this 96 who admitted to knowing such other persons, 46 stated that they know of less than 5 such persons, 33 stated that they knew between 5 to 10 such other persons, and 17 stated that they knew of more than 10 such persons.

T H E

Along with this was a deep sense of failure arising from the sense of incapability of dealing with the regular harassment and abuses that they face. This sense is magnified as they grow older, because they begin to correlate their own sexuality/gender orientation with the obstructions and lack of progress of their various ambitions. This results in a pattern of self-blame, which manifests itself as self-hate. "I wish I was never born," said a FGD participant in Dhaka "then my family would not have to be ashamed of me. I cannot even earn enough for them".

That nearly a third of the respondents reported that they have either thought of or tried to commit suicide at some point in their lives, is indicative of the above phenomenon as well.

A G A I N S T

A sex worker who had slit his wrists said, "If I had my way I shall castrate all the panthis. They are all bastards [haraami]. Especially my uncle who raped me when I was 14. I feel so helpless."

21 Frustration with the various harassment and abuse also

It was clear from the study that local police often tar-


A G A I N S T

T H E

O D D S

geted the outreach workers of BSWS with extortion demands, and if such demands were not met, the work of outreach would be obstructed. Many times local police would make arbitrary arrests under the laws

22

related to powers of detention on suspicion. This is a law that is abused with impunity to target outreach staff and MSM in the field. This law is also used as an excuse to justify any detention of MSM.


4

The findings in the context of social constructions of masculinities in Bangladesh and the kothi framework

I

t is important to locate the basic findings of the research in a theoretical framework around the construction of masculinities in south Asia in general and Bangladesh in particular. This is necessary to contextually conceptualise the dynamics, which gives rise to the violations and violence against MSM in conservative and discriminatory settings as found in Bangladesh. Sexual and gender identities/orientations take shape within psychosocial and historical processes, which in turn are contextualised by culture and language. Therefore one finds that different cultures often translate similar words and phenomena into different meanings with inherent subtleties typical of that culture. It is clear that Euro-centric perceptions and values gives a definition to heterosexual, homosexual and bisexual identities quite different from how these phenomena are understood in Bangladesh.

The invisibilisation of sexual behaviours;

■ Gender segregation and the social policing of women;

A homosocial and homoaffectionalist culture;

A shame-based culture where family and community respect and honour are paramount;

Social compulsory and arranged marriages;

Family and social pressure for reproduction, particularly sons;

The negation of self before family/community

This male behaviour is further defined by gender roles attributed to males and females within society, especially when important defining events in life, such as the assumption of adulthood, are defined by such gender roles, duties and obligations. The fact that the Western medicalisation of sexuality and sexual behaviours in the last century has given rise to a whole new discourse and understanding of gender, sexuality and sexual behaviour based on who one has sex with, has little relevance in the social and cultural context of Bangladesh. Therefore to say that homosexuality exists when a man expresses sexual attraction for another man does not "fit" into the prevailing Bangladesh context. In Bangladesh, sexuality is primarily defined within frameworks of gender roles/orientation, rather than with sexual orientation. Sexual interaction between biological males is defined by the gender/sex role that each partner plays. Thus the penetrating partner perceives himself as a man who is penetrating a "notman", a feminised male, who also perceives himself as a "not-man". In this context then we should discuss male-to-male sex as "males who have sex with males". Homosexuality as a condition, with homosexuals as a "species afflicted with this condition", is not the Bangladesh context of male-to-male sex, and there are no equivalents of such terms as heterosexuality, homosexuality, or bisexuality in Bangla (the main language spoken in Bangladesh). What terms do exist, reflect

O D D S

Male dominance over public space and discourse; ■

T H E

■ Joint and extended families as providers of welfare and social control; and

A G A I N S T

In Bangladesh, the behaviour and experience of males are affected by socio-cultural realities such as:

■ An understanding of sex only in its reproductive sense;

23


gender and, or, sex roles and acts.

A G A I N S T

T H E

O D D S

This fact, also underlines the history of tolerance of male same-sex behaviours that has existed across the entire South Asian region. It was only with the advent of criminalisation of sodomy, imposed by the most recent colonial powers, that the notion of right and wrong, and normal and abnormal sexual behaviours as dichotomised states became a reality in public discourse. However this discourse has taken shape in the gendered context of South Asia, which means that it is the feminised male, rather than the penetrating partner, who tends to be discriminated against and crminalised. In the phallocentric patriarchy that dominates social life in Bangladesh, sex is understood in a reproductive sense and masculine power is defined by the act of sexual penetration. In this scheme, anyone who does not penetrate loses the claim to be defined as a man. The penetrator always remains "the man", but the one penetrated becomes "not man", and has therefore a lower status and standing as compared to "the man". Again, given the fact of accepted masculine superiority, such penetrated persons are also considered to be degraded, and thus often abusively addressed as maiga, chakka, hijra, kothi, gotian etc, all terms which derogatively denote/connote a male person lacking in masculinity by being either effeminate or a eunuch.

24

The superior status of "men" is enforced by gender segregation in social spaces and of labour, both these spheres being dominated by men. The perception of the male child as family capital, along with strictly defined gender roles, both in social duties and obligations as well as in terms of liberties enjoyed, often translates into severe punishment and retribution against the male who transgresses his role and thus devalues his status. All this also means that every male has severe societal and familial pressures to marry and reproduce (preferably male children), so as to reassert his claim be the "man" in the penetration oriented phallo-centric society that recognises only reproductive sex. In other words it is marriage (and children) that makes the man a man, which institution effectively defines his stepping into adulthood. Thus, no marriage implies that a biological male has yet not become a MAN (an adult) and this perception affects one personally and how one is understood in society irrespective of his age. In a sexual context, the only way to deal with all of the above complexities even while preserving a semblance of the gender superiority of the man is to invisibilise sexual behaviour. This invisibilisation helps preserving the fiction of (reproductive) sex only within marriage, and the complete absence of sex outside. It helps reinstate the

reproductive logic of sex. And most importantly, it sweeps the possibility of sexual acts and behaviours outside the bounds of the above, under the proverbial carpet, by rejecting public discourse on the subject. It further helps in inculcating a sense of superiority vis-Ă vis against all traditions that are expressive of sexual diversities, which are seen as dirty and perverted. This is a huge psychological apple cart, which is toppled by males who participate as the penetrated sexual partner in the sexual act. They challenge all the accepted and ingrained notions and therefore are punished. The punishment takes the form of demasculinisation, dehumanisation and deprivation of their various rights. Sexual behaviours take the place of sexuality in Bangladeshi thinking. Male (masculine) sexual desire becomes self absorbed and is reduced to one of discharge, rather than based upon a desire for another person. The silencing and denial associated with this leads to an exile-like situation, where, closeted and schizophrenic states of mind easily emerge and subsumes the person, wherein, every expression of an alternate sexual desire has to be mired in shame, silence and done in secret. All this has two significant fall-outs, both curiously attached to the need of "the man". The first is that sex is often seen as a means of releasing body tension. That is why, one hears terms like "I did sex to release heat/ tension etc." The other, is that sex takes the form of fun and play, where the stigma attached to it is sought to be reduced by defining it in a frivolous light. Therefore, one gets to hear terms like maasti12 that is associated with sex. We arrive at a state where sexual preference and sexual behaviour is not a matter of identity. Sex takes place in hushed circumstances and is propelled by opportunity, accessibility and the need of discharge. A deeper meaning of sex is almost negated, by giving it the appellation of play and fun. One needs to take this understanding into the detailed analyses of the kothi construct. Kothi is a term that has existed for a long time in the popular discourse of the sub-continent. It particularly features in dialects that are spoken by the hijras13 of South Asia. It did not 12 The term maasti can be defined as fun or play or both. It is not serious enough to be sex, it just happens as if a game. 13 Hijras - A self-identified term used by males who define themselves as "not men/not women" but as a "third gender." Hijras cross-dress publicly and privately, and are a part of a social, religious, and cultural community. Ritual castration may be part of the hijra identity, but not all hijras are castrated. Hijras commonly have sex with "normal men". They also have their own language, sometimes known as ulti. Originally hijras were landowning matriarchal and matrilineal family units. With the abolition of the feudal system and the loss of patronage by the erstwhile rulers of princely states, hijras have been reduced to poverty, and many today have to take up sex work to sustain themselves.


define an identity, but rather, a behaviour. In the gendered world of Bangladesh, or the rest of South Asia for that matter, a male person who acted in a feminised manner was self-defined as a kothi. The term was derogatory and abusive in nature, and was intended to degrade the kothi. There was always the hidden implication that because the person is female-like, he would be penetrated by a "man" in the sexual act. But such feminised males gradually adopted the term as a selfidentity label so that often in their communication amongst themselves they called themselves kothis. The opposite of this, the "man" in this scenario can be masculine, a penetrating male, and he is in fact everywhere. He need not hide or be ashamed, for he is penetrating in the act of sex, therefore he is doing what men do. He is not doing anything deviant, in so much as he is having sex with those who are like women. Also he can disappear into the mainstream of male life in society, and therefore cannot be identified. He therefore cannot be targeted either. And since the sexual act is in secret and is never spoken of, or acknowledged in the public, he can safely hide behind the security that anonymity and lack of knowledge provides. He can also violate the rights of those who do not conform to the gendered roles of society with impunity and get away with it, for he himself cannot be targeted or shamed. He has been given the term Panthi, Giria, Parikh, etc. by the kothis. However it should be kept in mind that the panthi does not call himself such. He need not, for he is the regular man in society. It is only kothis who call him such, in counter-distinction to themselves. As stated above, he can be anyone and he is in fact everywhere.

As mentioned earlier, it also has economic ramifications. A kothi is hounded in educational institutions, so he cannot study. His lack of literacy compels him into economic disadvantage. He is very often denied inheritance, and is forced into sex work. Employers discriminate and harass him at his workplace, compelling him to leave the job market or seek worse jobs that under-pay him. The pattern of abuse that comes out in the study is indicative of, and actually corroborates this fact. The kothi is an easy individual to victimise. It is the main reason why we find that 64% of the respondents reported that they had been harassed by police. 48% of the kothis say hat they have been sexually assaulted or raped by policemen, and 65%say that they have been sexually assaulted or raped by hooligans. An astounding 87% of respondents stated that they have been subjected to rape or sexual assault simply because of their effeminate behaviour.

O D D S

In any HIV/AIDS intervention, the above needs to be taken into account. While it is generally accepted that a rights-based approach to HIV/AIDS prevention, care and support is essential to reduce the potential spread of the virus, it becomes imperative that we approach specific interventions with kothis within a context of empowerment, participation, and ownership, creating an enabling environment that enhances self-worth and self-esteem, so that they can be perceived (by themselves and others) as equal partners and participants in social life.

T H E

The self that is so negated by society, and which negation is deeply internalised by kothi themselves is responsible for their lack of self worth and self

It is often observed, that this sense of disempowerment translates into the kothi accepting the abuse and violations of his rights and bodily integrity as his due in society. He rarely fights back, and he deals with the trauma of all the abuse, by either turning on himself in selfdestructive ways, or by suffering in silence. Psychological dysfunction is also observed in a lot of cases.

A G A I N S T

Society at large, however, has all the reason to target and abuse a kothi. He is not a penetrator; therefore he is not a "man", to enjoy the privileges of men. He is less than man, but still being a biological male, he is available and more accessible in the social domain than females. Therefore he can be sexually accessed by "men" to fulfil their play, fun, and need of discharge. He is a cause of shame to the family and therefore is abused by its members. He does not qualify and fulfil the expected manly gender role, and therefore has to be policed, often with violence. Most importantly, he is perverted, because he does sex for reasons that could not be reproductive, and therefore poses a threat to the "normal" social order.

esteem, along with their disempowerment. The kothi is made vulnerable by the actions of society at large, and he increases his vulnerability by defining his self in the stereotype of the gendered role of an oppressed female in a traditional society. Being told that he is not a man, or less than a man, and feeling uncomfortable with the roles and responsibilities that men have appropriated for themselves, a kothi begins to identify as the female. But this identification is not in the image of an empowered woman. It is an exaggerated parody of a vulnerable woman. Therefore, in the traditional societal structures, a kothi does not find the moorings of empowerment. He continues to languish in a self-defined and societally determined disempowered place.

25


5

The legal framework in which discrimination of MSM take place in Bangladesh

T

he criminalisation of the act of sodomy, is at the root of all the discrimination that takes place against MSM in Bangladesh. The law on sodomy talks only of carnal intercourse against the order of nature. It does not criminalise sexuality as such. It is therefore very important to understand at the very beginning that sexuality or mere sexual desire and feelings is not a criminal offence in Bangladesh. It is an offence only if there is a sexual act. The act of sodomy is described and criminalised in Section 377 of the Bangladesh Penal Code. It is a continuation of the colonial Indian Penal Code formulated in 1860 by Lord McCauley. It is adequately vague, as all laws pertaining to anything sexual had been in the Victorian times. Its exact wording is as follows:

The explanation appended to the sections sates "Penetration is sufficient to constitute the offence as described in this section".

What therefore is the real impact of this criminalisation? The Bangladeshi evidence act is strong and rigid enough to make the crime described in 377 very difficult to prove. Therefore in Bangladesh or for that matter in the most of South Asia, cases under 377 is rarely booked. But 377 is a non-bailable offence and is also a cognisable14 offence. This means that bail is at the discretion of the court, and once arrested, bail can take anything up to even a couple of years to obtain. Also worth bearing in mind, is that consent is of no consequence here, and consensual sexual acts are criminalised.

14 For a cognisable, a police officer can actually initiate proceedings and arrest without the intervention or prior direction from a magistrate of competent jurisdiction.

O D D S

Therefore we see that 377 hangs as the proverbial Damocles' sword on the head of all MSM in Bangladesh. It gives the police the wide discretion to target MSM with blackmail, extortion and physical abuse. And there is nothing that they can do about it, for if the threat of using 377 is actually carried out then, it is a process of long incarceration and effective

T H E

We therefore see that it is an "unnatural" penetrative act that is criminalised. Same sex desire is not dealt with at all, and rightly so, for the Victorian understanding, was that such desire cannot and did not exist. As to what exactly constitutes an "unnatural" act is not described, but it has been the common understanding that it is meant to deal with the act of sodomy. The courts have also proceeded largely to give effect to this understanding. However in a common law setting, where precedent plays an important part in the development of jurisprudence, court have also interpreted to include in the purview of this section other sexual acts

The Bangladesh Constitution protects the right to expression as a fundamental right. Therefore if one simply expresses a desire or attraction for the same sex, then it is not a crime. Therefore one can safely say that homosexuality is not a crime in Bangladesh per se. But the real problem arises when we see that the social construction of masculinities is such in Bangladesh that sexuality is not a matter of identity in the first place. Therefore one only talks of, or understands homosexuality in terms of the sexual act or sexual behaviours. And as mentioned above, sexual behaviour of any kind between males is criminalised.

A G A I N S T

"Anyone who voluntarily has carnal intercourse against the order of nature with man, woman or animal, shall be punished with imprisonment of either description, which may extent to life, or to ten years and shall also be liable to fine"

like, Thigh sex, oral sex, and mutual masturbation. We therefore get a situation where all possible forms of sexual expression between males are criminalised.

27


punishment before trial. Not to speak of the shame and loss of face that occurs in a traditional shame based society, when one's sexual preferences become public knowledge due to criminal proceedings. The abetment laws, and the conspiracy laws, also affect MSM when they are read in conjunction with 377. Abetment is when a person instigates another to commit an offence. A reading of 377 makes it clear that it is the penetrator who is the criminal. However if there is a consent behind the sexual act, then the penetrated person is liable and equally and offender as either an abettor or a conspirator. In other words, we get a situation, where the penetrator may escape into the mainstream of society and may be difficult to identify, but feminised males, kothis, and male sex workers who are identifiable can easily be targeted with this act as abettors or conspirators to a criminal offence.

A G A I N S T

T H E

O D D S

The fact that 377 exists, gives not only the police but also the hoodlums a free hand in the abuse and exploitation of kothis, for they are complacent in the belief that kothis would not seek any legal remedy or redress, as that would effectively criminalise themselves. In the field of HIV/AIDS interventions, community development efforts and outreach work suffers, as outreach workers are themselves often members of the

28

community, and are therefore targeted. Also, the very fact that work is being done with a segment of society, that is effectively criminalised, may attract the abetment provisions against community based organisations and non-governmental organisations, that are attempting to do this work. Lately, one finds that the police have actually carried out arrests in many parts of Bangladesh, and because they are themselves aware that 377 may be hard to prove, they either let the persons off without filing any charges after obtaining money from them, or sexually assaulting them. When they do file a charge, they justify the incarceration under the local civic laws against vagrancy, nuisance, loitering, arrest on suspicion etc. Section 377 has never had any legal challenge in Bangladesh. However given the fact that the Bangladesh Constitution protects such rights as freedom of expression, freedom of movement, right to life and personal liberty, right to equality before the law and equal protection from the law, it provides strong legal grounds for mounting such a challenge. However a legal challenge does not occur in vacuum. It is contextualised by the socio-cultural order. May be at a future date, when adequate advocacy had been undertaken, such a legal challenge might occur, and be successful.


6

Recommendations

I

n light of the above-mentioned findings, the following recommendations have been made:

1) Once local police harassment and sexual assault is a major impediment to sexual health promotion, intensive training needs to be done with the police at all levels. This sensitisation should be two tiered and should be conducted separately, to maximise its impact. a) The first tier should target police officials who are often not aware of the types of harassment that are committed by local police, nor are they sensitised to the issues of the human rights of MSM and the national policy framework on HIV/AIDS under which the intervention work is conducted. It is therefore necessary to target them with training and sensitisation programmes so as to generate an appropriate human rights environment with law enforcement agencies.

O D D S

2) Probably would not be viable to attempt to directly

4) To minimise the incidence of rape and sexual assault, legislative changes need to be introduced that provide for effective remedy against male-on-male rape. This can be done by either introducing male rape provisions in the penal code, or by amending the sodomy law (Section 377 of the Bangladesh Penal Code) so that it covers all male-to-male non-consensual sexual acts while not criminalising consensual acts. This would make it possible for MSM who are victims of rape to seek legal remedy without criminalising themselves in the process. This can be done either by involving the National AIDS Programme in advocacy efforts targeted at legislative change, or it can be done by bringing about a constitutional challenge to the present definition and usage of the sodomy law in the court of law.

T H E

c) There may well be resistance to any such training process. But one way of overcoming this would be to involve the state agencies responsible for implementing HIV/AIDS prevention programmes to organise the training process with the involvement of police officials. In this way HIV prevention agencies can be utilised to train police at both levels.

3) As a first step, it is suggested that the police sensitisation be taken up in all the cities in which MSM HIV intervention projects are currently operational, and should be sustained along with indicators that would measure impact.

A G A I N S T

b) The second tier should target the local police. It is more often these local police that are responsible for the various harassment and abuses of MSM. It is also they who often obstruct outreach work. Training with local police should involve not only sensitisation, but also developing with their participation, appropriate and actionable mechanisms that addresses such abuse and violations as and when they occur. Such training and sensitisation should be on-going.

intervene with mastaans with sensitisation. But the effect of their abuses can be minimised by intervening with the police. If the police can be sensitised to the kinds of abuse and harassment that MSM in general and intervention agencies in particular face in the field from mastaans, and if they can be urged to take appropriate and prompt action against them, then it is likely that such harassment will reduce to a large extent. Such sensitisation can be a part of the training package that is developed for the police.

5) If the option of a legal challenge is chosen for bringing about the necessary changes in the sodomy laws, then adequate funding needs to be provided to support this. 6) Training of the police should include issues around gender as a main focus of activity. This is necessary to

29


arrest the incidences of harassment and abuse caused by insensitivity to gender issues. 7) There should be provision of resources to conduct advocacy programmes with the education department to make gender training in higher educational institutions, especially institutions that are all male, a regular part of the education curricula. This would help in reducing the harassment of 'effeminate' and 'not-masculine' males. 8) One of the immediate needs of kothis is economic empowerment. This can be brought about by the following: a) By the formulation of appropriate micro-credit and income-generation schemes.

A G A I N S T

T H E

O D D S

b) By the institution of vocational and other non-

30

formal education for MSM as they are often forced to leave formal education early, leading to erosion of economic capabilities. 9) The existing projects conducting HIV intervention programmes with MSM should be given the resources and training to develop their skills, to start providing psychological and psychiatric help to those who have repressed trauma due to violence and sexual assault that they have faced. Appropriate mental health strategies need to be developed to address this. 10) Each city that has operational projects on MSM HIV intervention should be given the resources to train a group of local lawyers on the jurisprudence of human rights issues and MSM, so that they can form a core team whose services can be accessed whenever MSM human rights abuses occur.


Note of thanks and acknowledgement

T

his project has been a joint team effort where many people have played a role. In this special mention needs to be made to the outreach staff and site buddies of Bandhu Social Welfare Society who facilitated the site visits and arranged for the participants of the interviews and FGDs. They were also responsible for collection of the data through the questionnaire. Without their cooperation this study would never have become possible. For managing the diverse logistics of the study and keeping the stopwatch in place so that all activities of the study gets done in right time, thanks also needs to be given to AHM Azizul Haque, Paritosh Kumar Deb,

Mahbubul Islam, and AHM Jamal Uddin, the project managers of Dhaka, Sylhet, Mymensingh, and Chittagong projects of Bandhu. Special thanks to everyone at IDHRB, whose valuable inputs, total dedicated participation, and productive critiques as the institutional consultant and co-researcher to the study has made this study so much more valuable and credible. And finally for all the hard work and dedication that has moved this study from its inception, a very special thanks to Aditya Bondyopadhyay, NFI Consultant and co-researcher to the study, along with Shale Ahmed, Executive Director of Bandhu Social Welfare Society for making it happen.

A G A I N S T T H E O D D S

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Appendix A: Questionnaire

Questionnaire on HIV/AIDS, STDs and Human Rights Bandhu Social Welfare Society has developed a questionnaire regarding awareness development on sexual health, HIV/AIDS education and human rights of MSMs. These questionnaires are strictly confidential The following questionnaire has been structured to gather information on a wide range of topics. The interviewer will test your knowledge about Safer Sex, HIV/AIDS and ask your opinion on these concerns. Please tell your personal view generally to our team. Please try to answer the entire question honestly. If you have any query about this questionnaires please ask to your interviewer unhesitatingly. Place/Area code Personal code Date of Interview

: : :

Interviewer name Date Signature

: : :

O D D S

2. Where is your native place/ancestral home: Big city Mofussil town Village Others

T H E

1. What is your age: 15-20 years 20-25 years 25-30 years 30-35 years Above 35 years

A G A I N S T

I am from an HIV/AIDS prevention organization named Bandhu Social Welfare Society, working on awareness development on Sexual Health, HIV/AIDS education and Human Rights of MSMs. We will try to know how much knowledge you keep or not about Sexual Health and Human Rights throughout these questionnaires. You can stop the interview at any time. What you answer will be kept strictly confidential.

33


3. Your marital status: Married Unmarried (If unmarried please go directly to question No. 7) 4. You got married because (tick all that apply): You wanted to have a wife You did not want a wife but wanted to have children You fell in love with someone and married her You did not want to get married, but family/friends/relatives pressurised you to get married. 5. Does your wife know that you have sex with other men: Yes No 6. If your wife knows, what has she done about it (tick all that apply): She has accepted it. She has not accepted it, but she cannot do anything about it She frequently fights with you about it She has told others She has threatened to leave you

A G A I N S T

T H E

O D D S

7. Who all know the fact that you have sex with other men (tick all that apply) Friends Parents Relatives Neighbors Wife Children. Others (specify) 8. How did these people come to know (tick all that apply): You told them They found out by accident They were told by people you had sex with They guessed because you act in a non-masculine manner. They were told by police/mastans who saw you in cruising areas. 9. Do you think you are Very rich Rich Middle class Can somehow manage to make ends meet Very poor 10. Do you think that your preference for sex with other men has in any way affected your economic status: Yes No 11. If you have answered the above question as yes, then how has it affected you: It has made your economic status better. It has made your economic status worse. 34

12. Do you know that it is against the law to have sex with other men and that this can even send you to jail: Yes No


13. Have you ever been subjected to harassment by the police simply because of the fact that you have sex with other men: Yes No 14. If your answer is yes to the above question, then what has been the type of harassment (Tick all that apply): Extortion of money on the threat of putting you in jail. Beating Threats and/or blackmail Restriction of movement and/or arrest Sexual assault and/or rape Others (Specify) 15. If you have been harassed by the police, then how did the police find out that you have sex with other males (Tick all that apply): Because you are effeminate. You were caught having sex Some one who knows about your sexual preference informed the police. Others (Specify) 16. Have you ever been subjected to harassment by mastans/goondas simply because you have sex with other males: Yes No 17. If your answer is yes to the above question, then what has been the nature of the harassment (tick all that apply): Extortion of money on the threat of handing you over to the police. Beating Threats and/or blackmail Restriction of movement and/or arrest Sexual assault and/or rape Others (Specify)

21. If your family have not accepted your sexual preferences, then what have they done about it (Tick all that apply): They have disinherited / disowned you and have thrown you out. They have beaten you and tortured you. They have tried to forcibly marry you off. They have tried to 'cure' you by taking you to a doctor or psychiatrist. Other (Specify)

O D D S

20. If you answer to the above question is yes then how have they reacted to this knowledge: They have accepted it and it is OK with them. They have not accepted it.

T H E

19. Does you near family know about the fact that you like to/do have sex with other men: Yes No

A G A I N S T

18. If you have been harassed by mastans/goondas, then how did they come to know that you have sex with other men (Tick all that apply): Because you are effeminate. You were caught having sex Some one who knows about your sexual preference informed the police. Others (Specify)

35


22. Do you consider yourself effeminate/ kothi Yes No 23. If you have answered yes to the above question, have you ever been sexually harassed by anyone, simply because you are effeminate, even though you did not make any sexual advances, or were not attracted to that person: Yes No 24. How often has these kind of advances happened: Once or twice A few times Many times 25. Has anyone ever sexually assaulted you or raped you simply because you are effeminate/kothi: Yes No 26. How often have you faced such sexual assaults: Once or twice A few times Many times

A G A I N S T

T H E

O D D S

27. If you have been sexually assaulted as mentioned above, who has been the person doing the assault (Tick all that apply): Relative Friend Classmates Neighbor Police Mastan/Goonda Stranger Others (Specify)

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28. Do you have a job/employment: Yes No 29. Has your sexual preference or your effeminacy affected you at your place of employment: Yes No 30. Do you think that if you had not been homosexual or kothi, you would have got a better job, or done your present job without harassment: Yes No 31. Do you think that being a kothi/ homosexual means that you do not get the opportunity to earn as much as others: Yes No 32. Have you ever been harassed by fellow students an/or teachers when you were in School or college, simply because you are effeminate/kothi: Yes No


33. If you have answered yes to the above question, do you think that this harassment has hampered your studies: Yes No 34. Do you think that if such harassment has not been there, then you would have been better qualified/educated and that this would have helped you earn more: Yes No 35. Have you ever been targeted or harassed by any religious leader/ Moulavi/etc. because they came to know of your sexual preferences: Yes No 36. Do you generally feel that it would have been easier for you if you had not been effeminate or if you did not prefer to have sex with other men: Yes No 37. If you have answered yes to the above question, then you think it would have been easier because (Tick all that apply): You believe that being homosexual/ kothi is wrong. You are tired of all the harassment that you have to face. You feel that then people would have loved / respected you more You feel that then you would have been better off economically. Any other reason (Specify) 38. Have you ever attempted or thought of attempting suicide because of all the harassment that you have had to face due to your sexual preferences: Yes No 39. Even if you have not faced any harassment due to your sexual preferences, do you know of anyone else who has faced such harassment: Yes No

T H E O D D S

41. Do you think that if the law that criminalises homosexuality is changed, then the amount of harassment that you have had to face will go down: Yes No

A G A I N S T

40. If you have answered yes to the above question, how many such people do you know: Less than Five Five to Ten More than Ten

37


Appendix B: PrĂŠcis of jurisprudence on same sex relationships

T

his appendix details the main case laws and the other developments in the law relating to same sex relationships in common law settings in the world.

Background Anti sodomy laws have been in existence in most common law settings as well as in other legal systems like the socialist law systems and the civil law systems in many parts of the world. This was the prevalent trend in the nineteenth and the early part of the twentieth century. These anti-homosexual feelings were often reinforced by the active participation of the state in anti-homosexual activities. Other than laws that criminalised homosexuality in most parts of the world, other forms of repression like police entrapment of homosexuals in public places were common. Bars, pubs, saunas, and other places known to be friendly to homosexuals or frequented by homosexuals were regularly raided, harassed, and closed down. The violation of the various basic rights of homosexuals reached its zenith in the concentration camps of Hitler, where thousands of homosexuals (actual estimates vary) were put to death. George Chauncey15 comments thus on the trans-national nature of these repressions:

O D D S

The more open and participatory movement took off due to three epochal events around 1968-69. These were the mass protests by students in Paris, where homosexuals participated openly and therefore created for themselves a platform in the general civil movements, the Binnenhof Protests in Holland, and the Stonewall rebellion in New York16.

T H E

The struggle for the rights of homosexuals, and the demand for decriminalisation and equal protection and treatment began in the west with the setting up of organisations pressing for such rights in the west after the Second World War. Although it is now understood by most scholars that these were in fact organisations formed by homosexuals themselves, given the repressive regimes in place at the pint in time, they chose to keep their own sexualities well hidden, and call for the rights of homosexuals from a civil liberties and human rights perspective. They have been described by various scholars as the homophile years which gave way to the later more open movements.

A G A I N S T

"Purges of homosexuals from state bureaucracies, crackdowns on gay meeting places, and depictions of homosexual threats posed to the nation's security and children developed in many European countries [as well as in the United States], whether ruled by left wing social democratic regimes or by right wing Christian democratic regimes, as well as in Australia, and New Zealand, and elsewhere."

The Radicalism of the late 60s and 70s that accompanied the movement for the rights of homosexuals in the west was replaced by a more mature and tempered engagement in the 80s. The main factor behind this change was the 15 Thinking sexuality transnationally, (1999) 5 GLQ,A Journal of Lesbian and Gay Studies, page 443. 16 Peter Drucker, Different Rainbows, page 9.

39


A G A I N S T

T H E

O D D S

impact that the HIV/AIDS had on the homosexual populations in the early part of the pandemic. The homosexual population was forced to shift into the role of dealing with the pandemic and providing care and support to their fellows, affected and infected. This not only created a public image of the emphatic, caring, and humane homosexual, it also brought home the fact that the questions of rights cannot be addressed by themselves, and that the homosexual movement had to build bridges with the other mainstream struggles, like the women's movement etc.

40

YEAR

State that decriminalised (in part at least) homosexual behaviour

1961

Illinois, Hungary, Czechoslovakia

1967

England and Wales

1968

Bulgaria, German Democratic Republic

1969

Canada, Federal Republic of Germany

1971

Finland, Austria, Connecticut

1972

Norway, South Australia, Connecticut

1973

Malta, Delaware, Hawaii, North Dakota

1974

Ohio

1975

New Hampshire, New Mexico

1976

Australian Capital territories, California, Maine, Washington State, West Virginia

1977

The Four republics and autonomous provinces of Yugoslavia, Indiana, South Dakota, Vermont, Wyoming

1978

Iowa, Nebraska

1979

New Jersey

1980

Scotland, Victoria (Australia), Alaska, New York, Pennsylvania

1982

Northern Ireland

1983

Northern Territory (Australia), Guernsey, Wisconsin

1984

Cuba, New South Wales

1986

New Zealand

1989

Western Australia, Liechtenstein

1990

Queensland, Jersey

1991

Ukraine, Hong Kong

1992

Latvia, Estonia, Gibraltar, Isle of Man, Dist of Columbia, Kentucky

1993

Russian Federation, Lithuania, Ireland, Kazakhstan, Nevada

1994

Serbia, Bermuda

1995

Albania, Moldova

1996

Tennessee

1997

Montana

1999

Chile

2000

Texas

2001

Minnesota, Romania


In the background of the above-mentioned developments, there has been a substantive change in the laws relating to the criminalisation of adult consensual homosexual activity in many parts of the world since the 1960s. The same is listed here:

Case laws The main case laws are listed hereunder: On privacy: 1. Dudgeon v. United Kingdom, European Court of Human Rights, 1981: Ratio: By a majority decision, the Court declared that the applicable laws in Northern Ireland that criminalizes consensual homosexual relationships between adults were in violation of Article 8 of the European Convention on Human Rights, which protects the privacy of Individuals. It said that the legislation constituted a continuing interference in the applicant [Dudgeon's] right to respect for his personal life. It found no "pressing social need" for such a law. 2. Bowers v. Hardwick, United States Supreme Court 1986, 478 US 186: Ratio: In this decision, the US Supreme Court by a majority decision did not find the right to privacy and the guarantees of due process as given in the US Federal Constitution to violate the sodomy laws of Georgia State in particular and some 25 other US states in General. It therefore overturned by a majority the decision of the Appeals Court of Georgia, which had set aside the Georgia Sodomy Law. It is however the dissenting opinion in the judgment that laid the groundwork for the future jurisprudence in the various states of US, whose respective courts have overturned their Sodomy Laws. 3. Toonen v. Australia, United Nations Human Rights Committee, 1994: Ratio: In this decision, the United Nations Human Rights Committee found that the sodomy laws of the Australian State of Tasmania were in violation of the guarantees of respect for individual privacy as laid out in the International Covenant on Civil and Political Rights. It therefore recommended that the relevant Tasmanian laws be repealed.

On advocating hatred/violence against homosexuals:

T H E O D D S

1. Mc Aleer v. Canada, Federal Court Trial Division, 1996, 132 DLR (4th) 672: Ratio: The Federal Court heard on an appeal brought by the applicant on a finding of the Human Rights Commission of Canada, wherein the Commission had found against the applicant that he had used his hotline phone connection to preach homophobic violence against homosexuals. The court upheld the decision of the Commission on the grounds that the Canadian Human Rights Act specified sexual orientation as a ground for non-discrimination and that there was adequate mens rea (criminal intent) behind the acts of the applicant to justify the findings of the Commission.

A G A I N S T

4. ADT v. United Kingdom, European Court of Human Rights (2000), 9 Butterworths Human Rights Cases - Pg 112: Ratio: This judgment went into the question of what constitutes privacy. Although the Sexual Offences Act of the United Kingdom did not criminalise private adult consensual homosexual relationships, it did lay out the definition of private, to mean an act between only two people. Therefore in the impugned matter when four consenting adult individuals committed a homosexual act in the privacy of the applicant's home, he was charged under the law. The court found that since there were no public health ramifications and the conduct was of a purely private nature, there was no justification if men (the court used the plural 'men' as opposed to just two men) indulged in consensual sexual act. It therefore found the legislation criminalizing such conduct as unjustified.

On individual victimisation: 1. Romer v. Evans, United States Supreme Court 1996, 134 L.Ed.2d 855: Ratio: The Supreme Court of the United states by a majority decision, used the equal protection of the law as

41


given in the Bill of Rights to overturn the publicly brought 2nd amendment to the Colorado Constitution that specifically denied protection against discrimination to homosexuals and also overturned all the other such protection statutes that had been enacted by various city governments of Colorado state. It found that "the inevitable inference is that the disadvantage imposed is born of animosity towards the class of persons affected". 2. Vriend et al. v. Alberta, Court File No. 25285, Supreme Cot of Canada 1998: Ratio: In this case the court went into the question of the specific and deliberate exclusion of homosexuals from the protections guaranteed in the Individual Rights Protection Act (IRPA) of Alberta State. It found that the decision to specifically exclude homosexuals was a deliberate act and constituted a discrimination when the act is read with he federal Human Rights Protection Act of Canada. It therefore ruled that the protection of homosexuals from discrimination should be read into the IRPA of Alberta State. 3. Lustig-Prean v. The United Kingdom, European Court of Human Rights, 1999: Ratio: In this case the Court considered the policy of the UK Defence establishment in not allowing the employment of homosexuals in the armed forces. The Court found that the policy of the defence forces of the United Kingdom violated the protection of Privacy as given in Article 8 of the European Convention on Human Rights, and therefore it also found that the dismissal of the applicants solely on the grounds of their sexual orientation to be unjustified. On equality of same sex couples: 1. Braschi v. Stahl, 543 N.E.2d 49, (New York Court of Appeals, 1989): Ratio: In this case, the applicant, who was the long time partner of the tenant of the respondent, filed for injunctive relief from eviction brought by the respondent, on the ground that he had the protection from eviction, being in a familial relationship with the primary tenant. The Court did not go into the question of success of the claim, but found that the applicant had prima facie grounds to be considered to form a family with the deceased primary tenant.

T H E

3. M v. H, Court File No. 25838, Supreme Court of Canada 2000, 171 DLR (4th) 596: Ratio: In this case the Court suspended the definition of 'spouse' as given in section 29 of the Family Law Act, which specifically provided maintenance to opposite sex couples of some permanence, but denied the same to same sex couples. It found that giving effect to such definition would violate the equality provision of the Canadian Charter of Freedoms. In effect it therefore covered the same sex partnerships of some permanence with the same protections as enjoyed by the opposite sex couples of some permanence. On children:

A G A I N S T

O D D S

2. Baker v. State of Vermont, Supreme Court of Vermont, December 22, 1999: Ratio: In this case applicant challenged the marriage statutes of Vermont on the grounds that it is discriminatory as it expressly bars same sex couples from obtaining the civil and secular benefits of marriage under the civil union laws of the State of Vermont. The Court overturned the specific bar to the Vermont Marriage laws and allowed the application.

1. Korn v. Potter, British Columbia Supreme Court 1996, 134 DLR (4th) 437: Ratio: The issue before the court was whether a practicing doctor (Korn) was justified in denying artificial insemination to all lesbians because he was involved in a prior maintenance litigation between two lesbians who had conceived after being artificially inseminated by him, which litigation had exposed him to hate mails, threats and criticism. The Court held that to deny such services to anyone solely on the ground of their sexual orientation is violative of the anti-discrimination provision as given in Section 3 of the Human Rights Protection Act of Canada. On inclusion and pluralism:

42

1. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group (GLIB), United States Supreme Court 1995, 132 L.Ed.2d 487: Ratio: In this case, GLIB a Boston Based Lesbian and Gay organisation wanted to march with the private organ-


izers of an Irish Parade in Boston. They were denied and brought the case as being discriminatory and in violation of their freedom of expression. The court held that the private organizers of the Parade had a right to have their say under the freedoms of expression, unaffected or undiluted by other messages. Therefore it denied that GLIB had a right to participate in the same parade irrespective of the opinion of the Organizers. 2. Boy Scouts of America v. James Dale, United States Supreme Court 2000, 147 L.Ed.2d 554: Ratio: The court held that the Boy Scouts of America, as a private Organisation had the right to exclude from its ranks persons like the petitioner James Dale, solely on the basis of their sexual orientation as to not allow the same would take away from the organisation and or derogate its right to an expressive message. It quoted Hurley (132 L.Ed.2d 487) and stated, "While the law is free to promote all sort of conduct in harmful behaviour, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavoured one, however enlightened either purpose may strike the government". 3. Trinity Western University (TWU) v. British Columbia College of Teachers (BCCT), Supreme Court of Canada 2001: Ratio: The case rose from the refusal of the BCCT to grant accreditation to the TWU on the ground that it expressly discriminated against homosexuals and therefore violated the provisions of the Human Rights Act of Canada (HRPA). The court held that being a private organisation the TWU had the right to decide its own policies and being a religious organisation that followed a particular religious belief about homosexuality, they were covered under the exceptions to the HRPA.

A G A I N S T T H E O D D S

43


A G A I N S T

T H E

O D D S

Acronyms

44

AIDS

Acquired immune deficiency syndrome

BSWS

Bandhu Social Welfare Society

CBO

Community-based organisation

FGD

Focus group discussion

HIV

Human Immunodeficiency Virus

IDHRB

Institutional Development of Human Rights in Bangladesh

MSM

Males who have sex with males

NFI

Naz Foundation International

NGO

Non-government organisation


The organisations

Bandhu Social Welfare Society (BSWS) Bandhu Social Welfare Society was formed in 1997 in Dhaka, Bangladesh with technical assistance from NFI, as a community-based MSM sexual health organisation following a social and needs assessment of MSM behaviours. From a small self-help project in central Dhaka it has grown to provide sexual health services for MSM in five cities.

Naz Foundation International (NFI) Headquartered in London, UK with a Regional Liaison Office in Lucknow, India, NFI primarily provides technical, financial, and institutional support to MSM collectivities, groups and networks in South Asia to empower them to develop and promote their own sexual health services. Since 1997, NFI has provided such assistance in the development of 27 such MSM sexual health projects. NFI is also involved in a range of studies and research that explore issues of masculinities, sexualities, and male sexual and reproductive health in the context of South Asian cultures.

Institutional Development of Human Rights in Bangladesh (IDHRB)

A G A I N S T

IDHRB is a body of lawyers, para-legal personnel, and human rights activists supported and funded by the government of Bangladesh, and has the remit of developing a human rights orientated civil society in Bangladesh, so that greater accountability in all fields of life is achieved and a movement of civil society and government towards the protection and promotion of human rights can be actualised.

T H E O D D S

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Against the Odds The impact of legal, socio-cultural, legislative and socio-economic impediments to effective HIV/AIDS interventions with males who have sex with males in Bangladesh

The Naz Foundation International Palingswick House 241 King Street, London W6 9LP, UK Regional Office 9 Gulzar Colony, New Berry Lane Lucknow, 226 001, India


Agains the Odds