The dress code for legal professionals represents not only their professionalism, but it is a matter of identity that is etched into the history of the profession. The ceremonial nature of the advocates' dress code reinforces the seriousness of the occasion of a dispute resolution process before a court of law. Therefore, the dress code is guided by some defined rules – for example, in the Supreme Court of Bangladesh, one set of rules applies to the High Court Division 1 and another applies to the Appellate Division 2.
Rule 2(2) of Chapter XVIA of the Supreme Court of Bangladesh (High Court Division) Rules 1973 ("the High Court Rules") prescribes the dress code of advocates in general. On the other hand, Rule 2(3) stipulates the dress code for female advocates, which they may also alternately adhere to. However, there is no dress code set out for those belonging to the newly recognized third gender (i.e. those belonging to the 'Hijra' community). Since those belonging to the 'Hijra' community do tend to wear either traditionally masculine or traditionally feminine clothing, this might be a matter of concern for a number of reasons. Firstly, there is no specified guidance whether a third gender individual can adhere to the dress code that female advocates can alternately wear. Secondly, potential clients might be hesitant to approach third gender advocates wearing female attire if they, based on prejudice or ignorance, deem that such advocates are inappropriately dressed. Thirdly, and most importantly, if third gender advocates decide to adhere to the dress code that a female advocate has the option to subscribe to, whether they might be labelled or perceived as being inappropriately dressed when they appear before a court.
In this regard, Rule 38 of Order IV of the Supreme Court of Bangladesh (Appellate Division Rules) 1988 ("the Appellate Division Rules") sets out the dress code for advocates but does not differentiate between male and female advocates. Therefore, it could be argued that Rule 38 of the Appellate Division Rules is gender neutral and also applies to those belonging to the third gender. But the problem of choice still remains in the Appellate Division Rules. In other words, the Appellate Division Rules is silent on the question as to whether a third gender individual can wear the dresses (like, Sari or Salwar and Kamiz) that female advocates can generally wear in professional settings.
The issue becomes more severe outside the Supreme Court of Bangladesh. Rule 487 of the Criminal Rules and Order (Practice and Procedure of Subordinate Courts) 2009 ("the Criminal Rules and Order") states that the dress code for advocates appearing before Court of Session, Tribunal or any Court of Judicial Magistrate shall include the same gown as that worn in the Supreme Court of Bangladesh. However, Rule 488 of the Criminal Rules and Order specifies the dress code for "male" and Rule 489 specifies the dress code for "female" [stipulated as 'lady advocates']. The specific designation of "male advocates' and "lady advocates" in the Criminal Rules and Order raises an important question – where would the third gender fall in the dress code provisions, especially when the Note to Rule 489 states that the "wearing of the prescribed dress is compulsory for all Advocates"? The Bangladesh Legal Practitioner's and Bar Council Order 1972 (President's Order) also does not clarify this matter.
The policy regarding the 'Hijra' community by the 'Livelihood Development Program for Hijras, Vedas and Backward Classes', which is promulgated by the Department of Social Services under the Ministry of Social Welfare of Bangladesh, states in Section 2 that a 'Hijra' is someone with congenital sexual disability, who due to physiological or genetic reasons, cannot be classified under any gender category. The Accessible Dictionary, which is supported by the Access to Information Program (a2i) of the Prime Minister's Office of Bangladesh, translates the Bangla word 'Hijra' as a 'Hermaphrodite' in English. Comparative judicial decisions also sheds light on the words "hermaphrodite" and "transgender". The Rajasthan High Court in Ganga Kumari 3 interpreted that a hermaphrodite includes a transgender. The Indian Supreme Court in NALSA vs Union of India 4 held that a transgender individual has the right to decide their gender identity, whether it be a male or female or third gender. In the NALSA case, the Indian Supreme Court recognized that freedom of expression is protected by the Indian Constitution 5, and clarified that freedom of expression is to include one's right to express one's self identified gender and that no restriction can be imposed on one's choice of appearance. The India Constitution's freedom of expression clause is similar to Article 39(2)(b) of the Bangladesh Constitution, which also protects freedom of expression. Furthermore, reference could be made to the United Kingdom Bar Council Guide On Court Dress (July 2020). Under the UK Guide, those who are neither male nor female, may dress as they feel appropriate when business attire is required and the UK Guide does not stipulate any gender specific dress code recommendation when Court dress is required. Therefore, it could be argued that in the Bangladeshi context, a similar conclusion could be drawn with respect to the third gender community's self-proclaimed gender identification.
The Bangladesh government recognized 'Hijra' as a gender under gazette notification dated 26 January 2014 issued by the Ministry of Social Welfare. This is certainly a welcoming and refreshing initiative of the government. But sadly, the legal profession in Bangladesh is yet to catch up with this change. Perhaps, it is high time to make such changes.
Footnotes
1 Supreme Court of Bangladesh (High Court Division) Rules
1973
2 Supreme Court of Bangladesh (Appellate Division) Rules 1988
3 Ganga Kumari vs State of Rajasthan MANU/RH/1466/2017
4 National Legal Services Authority (NALSA) vs Union of India AIR
2014 SC 1863
5 Article 19(1)(a) of the Constitution of India
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