The Constitution prohibits discrimination based on religion, race, caste, sex or place of birth but limits the possibility of considering intersectional harms rooted in multiple grounds.
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RECENTLY, a woman with speech and hearing disabilities who had been raped by a local fishmonger attempted suicide in Habiganj, Bangladesh. A few years ago, a 13-year-old girl was raped with the perpetrator saying, "What's wrong with raping a retard? She's a reject anyway."
In Bangladesh, women with disabilities navigate social life while being susceptible to sexual, gendered and disability-induced vulnerabilities. They are marginalised and have no or limited access to human rights, while being exposed to the heightened risk of repeated sexual violence and harassment.
Despite being the most prone to intersectional discrimination, these women are never part of the mainstream discussion on equal rights.
Within the discourse of human rights, equality is a contested canon intertwined with the principle of non-discrimination. Therefore, equality, regarded as the absence of discrimination, is ingrained with questions of just, unjust or reasonable and unreasonable.
Intersectionality has emerged as a ground-breaking additive to address the complexities of equality and non-discrimination. Originated by Kimberle Crenshaw, intersectionality— a mechanism for addressing inequality— focuses on multiple identity categories of human beings and their dyadic interaction with each other in the form of various disadvantages where context also matters.
Intersectional framework, in this way, invokes a sense of 'substantive content' meaning to deep-dive beyond what is apparent, the specific context or the background. Accordingly, it brings a change to the status quo understanding of discrimination and delineates that discrimination does not always arise from a single-axis ground, such as race or sex, but instead can be founded upon multifaceted grounds in a particular context, which leads to intersectional discrimination.
“Bangladeshi women with disabilities are never part of the mainstream discussion on equal rights despite being most prone to intersectional discrimination.
A clear understanding of intersectional discrimination is provided in General Comment No. 6 on equality and non-discrimination. It states that intersectional discrimination happens, for instance, "when a person with a disability or associated with disability suffers discrimination of any form based on disability combined with, colour, sex, language, religion, ethnic, gender or another status". Consequently, it unravels the cross-ground exclusionary markers that tended to be overlooked in a traditional anti-discrimination framework.
While intersectional discrimination based on race and sex has been at the forefront of academic discussion, if not in law and policy making, the intersection of gender and disability has not garnered substantial attention. Yet women with disability remain at the precipice of disproportionate harm, culminating in violence and oppression emanating from gender and disability.
The situation of Bangladeshi women with disabilities, for example, speaks volumes in this respect. Studies show that in almost 99 percent of the cases, women with disabilities encounter insurmountable challenges or cannot access religious institutions. The lack of accessibility in educational institutions results in only 1 percent of female children with disabilities enrolling in schools.
While most women with disabilities are hindered from accessing public institutions, they also experience negative attitudes, misbehaviour and, in some cases, wrong treatment procedures. The complexity of identity and intersectional disadvantages, in turn, situate women with disability at the margin of human rights along with their exponential invisibility and disenfranchisement.
The principle of equality is a core value in Bangladesh's Constitution and aspires to serve as a tool to secure a society which is just, equal and free from any form of exploitation. Article 27 envisions affirming equality among every citizen by ensuring "equality before law" and "equal protection of law".
Although the Constitution does not clarify if equality and non-discrimination are interchangeable, an explicit prohibition of discrimination hinges on five exclusive grounds is enumerated in Article 28(1). "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth". With phrases like "on grounds only of", the provision is a quintessential constitutional provision of single-axis discrimination.
“While intersectional discrimination based on race and sex has been at the forefront of academic discussion, if not in law and policy making, the intersection of gender and disability has not garnered substantial attention.
The Article prohibits discrimination as long as it is limited to one of the five exclusive grounds stated above. Therefore, it limits the possibility of considering intersectional harms rooted in multiple grounds and focuses only on discrimination based on a single basis such as sex or religion.
Interestingly, in interpreting Article 15(1) of the Indian Constitution, which shares almost the same textual feature as Article 28(1) of Bangladesh's Constitution, the court limited the meaning of "only" to apply to an act of discrimination that occurred because of a single ground. Thus, "a discrimination based on one or more of these grounds and also on other grounds is not hit by the Article".
Such a tendency of courts can also be observed in the context of Bangladesh. In Jonaba Dalia Parvin vs Bangladesh Biman Corporation and others, the court had to determine whether the amended regulation by the corporation that reduced the age limit of a female flight attendant from 57 to 35 years but fixed 45 years for her male colleague is discriminatory. Unable to find any difference between the duties of male and female flight attendants, the court decided that the amended regulation was violative of Article 28(1) since the age limit was based only on sex.
While declaring the amended regulation discriminatory, the court missed the opportunity to acknowledge the intersectional nature of the discrimination in this case based on sex and age. After all, sex discrimination, to borrow Atrey's words, "does not operate in isolation of other identities like age and marital status and the socio-political and economic contexts of society".
“Since the idea of equality in Bangladesh's Constitution apparently does not coincide with difference, rather it is saturated with sameness and commonality, it limits the legal redress for intersectional discrimination.
As much as interpreting sex discrimination in an isolated manner limits the scope of discrimination based on sex, it also curtails the potential of categorising discrimination based on intersecting identity markers such as sex, age or race. This, in turn, might fetter the possibility of getting a remedy for intersectional discrimination if a woman with a disability in Bangladesh experiences discrimination based on intersecting identity markers.
Women with disabilities are one of the examples of groups most vulnerable to intersectional discrimination in Bangladesh. But with the Constitution focussing on single-axis discrimination, it fails to capture the dynamics of harm originating from a combination of multiple identities. Since the idea of equality in the Constitution does not coincide with difference, instead it is saturated with sameness and commonality, it limits the legal redress for intersectional discrimination.
In fact, it is fundamentally designed in a way where "treating likes alike" purports to be an elixir to cure the violation of equality. Accordingly, it shows how the Constitution shies away from acknowledging the multiple-identity-based diverse experience of a person and its inability to grasp a comprehensive understanding of equality. However, considering intersectionality as an imperative to read and interpret constitutional equality might open the door to legal remedy for all, including those most invisible and vulnerable because of intersectional harm.