Bangladesh is currently experiencing what can possibly be termed a “gay awakening moment”. Not because the country has finally come to terms with homosexuality, both socially and legally, but because the resistance and contestation regarding the criminalisation of homosexuality have gained stronger visibility. August 2026 saw the country’s first reported transgender marriage and the expulsion of Dhaka University students from their residential halls over allegations of homosexuality, and these developments have brought LGBT+ relationships into public discourse. Accordingly, it is particularly timely to examine the continuing relevance of Section 377 of the Penal Code, 1860, in legitimising violence and providing a legal basis for harassment against LGBT+ individuals in Bangladesh by both state and non-state actors. In this piece, I argue that Bangladesh has a human rights obligation under international (human rights) law to decriminalise homosexuality as the continuing criminalisation under Section 377, in the name of religion or culture, is not justifiable.

Section 377’s Colonial Roots

Section 377 of the Penal Code, 1860, a British colonial-era law, criminalises homosexuality in Bangladesh. It provides that ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal’ may be punished with imprisonment for life or for a term of up to ten years imprisonment together with a fine. While the provision does not explicitly deal with homosexuality, focusing on the wording ‘voluntarily’ is significant here, as it reveals that Section 377, which comes with the heading ‘unnatural offence’, separates it from other offences such as rape that deal with non-consensual sexual intercourse.

As is obvious, the goal of Section 377 is not to deal with sexual violence but to criminalise sexual conduct that does not fit within the heterosexual penile-vaginal model of sexual intimacy. Indeed, this has been the case, especially with respect to male-to-male sex, since the time the British Empire came up with this heteronormative legal regulation in 1860. In Bangladesh, Section 377 has contributed to building an environment that subjects people to harassment, arrest threats, and extortion simply because of their sexual orientation. This, in turn, raises the significance of decriminalisation of homosexuality as a pressing human rights issue for Bangladesh, with serious implications for equality, dignity and privacy of LGBT+ persons.

Criminalisation as Discrimination

One route to decriminalisation is to argue that the criminalisation of homosexuality is discriminatory. Bangladesh has ratified, among others, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 2 of ICESCR prohibits discrimination, and the ICESCR committee have clarified in its General Comment No. 20 (2009) that this extends to sexual orientation.

The Constitution of Bangladesh does not have an open-ended list of grounds, unlike the ICCPR and ICESCR, and so this route may be closed off. However, the Constitution does include ‘sex’ as a ground. Thus, another way to interpret the provision is the approach followed in Toonen v. Australia. There, despite the ICCPR not containing any provision that explicitly addresses sexual orientation or gender identity, the Human Rights Committee interpreted the reference to “sex” in Articles 2(1) and 26 of the ICCPR as including sexual orientation for the purposes of protection against discrimination. Although the Committee did not provide any explanation for such interpretations, discrimination based on sexual orientation has been considered sex-based discrimination because it is grounded in stereotypes associated with sex, such as the assumptions that ‘real men’ and ‘real women’ are always heterosexual.

Clashing Rights

Interconnected with this is the question of the extent to which these interpretations of human rights may be rejected or qualified on the grounds of religion or culture, thereby curtailing sexual and gender freedom, as has already arisen in the context of Bangladesh. Islam is the constitutionally recognised state religion in Bangladesh.

The Human Rights Committee has made it clear that the existence of a state religion or the prevalence of a particular religious belief among the majority population does not justify restricting any rights under the ICCPR. Any restrictions must be in accordance with the principles of universality and non-discrimination. Hence, any appeal to popular morality must not receive serious consideration when it regulates, controls, or prohibits one from exercising their human right to sexual autonomy, including the ability to decide with whom they want to engage in sexual intimacy. Indeed, the Human Rights Committee had already called on Bangladesh to decriminalise consensual same-sex relationships.

If Bangladesh wants to comply with its international human rights obligations towards its queer community, decriminalisation of homosexuality is not merely about ticking off a checklist; it is a fundamental prerequisite. The fulfilment of this requirement would mark the beginning of a form of queer liberation in Bangladesh that is free from the shackles of unjust (colonial) laws.