Gender appears to be a trite issue in our nation. If no, it is a spirit that necessitates fighting when it comes in discord with our therefore-called social and religious beliefs. New anti-trans protests to withdraw the transgender quota from the admission programme of the University of Dhaka manifest the exact impulse to protect religious and social mores which, the protesters believe, may be infringed if the trans-quota remains in place. The isolation of transgender girl Hochemin Islam from the North South University’s function “Women’s Career Carnival” is yet another new example in this regard. The trans community truly threatens our conventional gender norms and both the exclusion of Hochemin and the demonstrations suggest a sensitivity towards that while attempting to shape the “gender talk” only between cis people and cis ladies. However, the idea of sex however goes beyond quite rigid binary. Asking the female issue involves the ideas of self- governance, choice, and autonomy, therefore allowing us to embrace gender norms that we “feel” despite of our natural sexes. But, in our patriarchal culture that commands to keep and in truth thrives on a rigid gender binary, any person claiming to be any gender other than the one related to natural sex, becomes a cultural pariah.
Our Constitution yet has, since start, been an enthusiastic recommend of equality and no-discrimination and accords rights and benefits to its members (e.g., free expression and equitable measures for marginalised communities). To be a member of the constitution is not however about simply “being” but also about “belonging” (Marcus Llanque). The fact that Hochemin was stripped of her right to freedom of expression simply because of her transgender identity or the demand for withdrawing transgender quota thus gives rise to a broader question: can a transgender person ever get to be a member of the Constitution and thereby enjoy its (core) rights and benefits against the “gendered politics of belonging” (Suruchi Thapar- Björkert)?
Although the Constitution does not represent the name “gender” directly, Article 27 of our Constitution speaks of similar protection of laws for every member. This is obviously inclusive of citizens of transgender names. Our constitutional territory however is marked by a crude gender binary: men and women (as Article 28 (2) mandates). As a result, a constitutional impasse may arise when an attempt is made to contain “trans people” within that country. This firm gender essentialist personality, on its face, may indicate that transgender people lack access to our Democratic account as rights recipients since they do not fit within the lawfully sanctioned gender binary. This, in turn, probably, some may say, reinforces the explanation of the isolation that Hochemin faced for being a transgender woman. However, the word “woman” is nothing defined: neither in the Constitution nor in global norms. Dealing with the same issue, but with regards to “woman” in the Convention on the Elimination of all forms of Discrimination against Women, Elise Meyer suggests that the term “woman” should be expansive to span across sex, gender, sexual orientation or other (intersecting) identities in light of the Convention’s broader object and purpose to eliminate discrimination and gender equality. Because our Constitution also aspires to achieve, among other things, equality and non-discrimination, the same identity-inclusive approach could be used to interpret “woman” in Article 28 (2).
However, being a member of the Constitution even entitles one to all the advantages it offers, including racial steps. A telling legal function to help the disadvantaged communities advance is racial measures, which frequently take the form of restrictions. The scope of Article 28 (4), which mandates that the State take such special measures, is wider. The clause asks the State to take action for the development of “any back section of citizens,” probably encompassing all marginalized groups in the society, even though women and children are clearly acknowledged as the beneficiaries. Despite the shifting socioeconomic conditions and privileges within the party, it may be argued that all women are a “timeless” susceptible category. Transgender people are entitled to use the provision despite of this dangerous aspect. Trans women, for example, fall under the scope of the clause not only because they are women and so qualified for special treatment, but also because their integrative risk as trans women makes them more vulnerable to discrimination and disadvantages. Trans people could also be categorized as a “backward class” for this very reason, necessitating exclusive advancement measures separate from/along with their deserving status as women. The argument that the transgender quota violates the ideals of Article 28 (4), i.e., the advancement of (cis) women, is therefore unfounded. It’s important to note that, rather than being concerned about cis women, for an issue actually stems from the need to protect established gender binary from non-normal gender ideas regarded as “profane.”
Another fundamental straight that is enshrined in our Constitution is the freedom of expression. Freedom of expression plays a dual role in the debate over female personality. Second, gender identity itself may be a means of expression that extends beyond sex change to include clothing and speech patterns. Next, the debate or talk about gender identity in general, such as transgenderism. Our Constitution then guarantees the right to free speech. It is a straight with some “reasonable restrictions,” though, so it might be constrained by things like people order or conscience. Since there is no definitive way to define these premises, which are frequently context-specific, for limitations give States some latitude to limit the right. That does not imply that these limitations may remain imposed by law rather than being subjective. By showing that the measures taken to restrict the right are equal to the objectives sought to get achieved, the law restricting any form of expression may be approved by the legal process. In doing so, we should be reminded of the importance of freedom of expression, including opposition, debate, and opinions that frequently defy our preconceived notions. In fact, it goes against the goals of reasonable restrictions to forbid one from speaking on transgenderism (this is fictitious, Hochemin in our case, was not about to speak on it) or simply because she is trans woman because it undermines her equal standing as a moral person by directly restricting what is so fundamental to herself.
It’s crucial to keep in mind that our Constitution shouldn’t be a haven for gender orthodoxy or homogenous identity. It is just as much for transgender men and transgender people as it is for cis women and men. Our Constitution ought to embrace change in the same way that it embraces similarity. A law like ours, which is based on the principles of our Liberation War, should in no way support the notion that its advantages are only accessible to those who could adopt and uphold a gender-restricted heteronormative culture. Both political and democratic values are at odds with turning a blind eye to variety.
As an Arthur T. Vanderbilt Scholar at the NYU School of Law, the author is reading for the LLM in Human Rights.
