The rights of the transgender community are not deliberated upon in most debates. Transgenders have had a long history of struggle in order to be recognized as a separate gender. The Supreme Court has accorded them recognition by calling them “third gender.” However, despite this, they face discrimination and are often subjected to sexual harassment, violence, hatred, torture, and abuse of both mind and body.
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The motive of any government running on the principles of democracy is to ensure that the minorities within the country are able to enjoy their rights, by not facing any kind of suppression or oppression by the majority community. The basic principle is to provide a platform for minorities to voice their concerns, exercise equal rights, and live a life with dignity. These principles of equality and non-discrimination are enshrined in articles 14 and 15 of the Constitution of India. Since Indian society has been predominantly patriarchal in nature, the notion has always been that women are considered subordinate to men, and that it is the prerogative of men to formulate laws for everyone and run the society according to the norms as formulated by them. With patriarchy as the ideology, and laws as the manifestation of this ideology, much discrimination at various levels can be seen to be deeply rooted in Indian society. This notion of patriarchy puts men as the “first gender” and women as the “second gender.”
The Transgender Persons (Protection of Rights) Act, 2019 saw the light of the day on 5th December 2019, when the President of India assented to it. This act was considered to be a significant win for the transgender community. According to section 2(k) of the said Act, a transgender person is described as someone whose gender does not affirm to the one assigned to them at the time of birth. The term is also inclusive of trans-man or trans-woman, persons with intersex variations, gender queer, and people who identify as kinner, hijra, aravani and jogta. In short, it is an umbrella term to describe all those who do not affirm to socially defined gender norms. It includes all those who do not conform to the binary gender structure formulated by society. Though they were given recognition and accorded the status of “third gender” in the case of NALSA v. Union of India, a critical analysis of the new law protecting the rights of transgenders, namely the Transgender (Protection of Rights) Act, 2019 falls short of the vision as envisaged in the said case. Thus, the law which was introduced to mend the cracks in the Indian Legal System and incorporate the transgender community in the mainstream legal system has rather deepened the crevices. This is due to the inherent biases prevalent in Indian society. One of the primary areas where the act has failed miserably is to provide protection to the transgender community from sexual violence meted out to them.
The transgenders often do not get equal opportunity to secure employment or attain education because of the preconceived notions existing against them in society. Due to lack of opportunities, they are often pushed into deplorable conditions and are forced to indulge in prostitution and sex work in order to sustain their livelihood. However, this has resulted in an increased level of sexual violence against them. The inability of the Indian Criminal System to take into account the challenges faced by members of the community and the inability to provide them with protection from sexual offences committed against them have put them in such a position that their vulnerabilities have caused a cascading effect on their enjoyment of fundamental and human rights in India.
One of the major concerns for the transgender community is the inadequate protection provided under the Indian Penal Code, 1860. This can be seen by the exclusion of transgender people from the definition of rape and other sexual offences.
Though the provisions pertaining to sexual offences and harassment only take into account the vulnerability of women, the reality is that the transgender community is the most prone to be exploited. Just like women, the individuals of this community are also unguarded from sexual offences. They can be subjected to sexual offences such as outraging the modesty, sexual harassment, disrobing, voyeurism, stalking, rape, aggravated forms of rape.
However, the definition of such crimes in the Indian penal code mentions explicitly that these crimes can only be committed against women by men. The gender specificity of the said crimes depicts how an entire community’s vulnerabilities have been blatantly ignored. Any kind of non-consensual carnal intercourse, which in the case of men and women would have fallen under the ambit of the crime of rape, do not find its place under the said section. Such kind of crime only finds its place under section 377. By not including the cases of sexual violence against the individuals who do not conform to the rigid social constructs of gender roles underscores the fact as to how the sexual minority has continued to face discrimination in enjoying the rights, which includes the right to live a life with dignity.
Section 375 of the Indian Penal Code, 1860 makes the crime of rape punishable. Before the 2013 amendment, a very narrow definition was given to the crime of rape, which only made punishable penile-vaginal penetration. However, in the aftermath of the Nirbhaya Gangrape case, which shook the consciousness of millions of the Indian population, it led to amendments to the rape law, one of which was the expansion of the definition of the term rape. Now, the crime of rape also takes into account non-penile penetration. However, while expanding the definition, the government did not grab this golden opportunity to also take into account the rights of the transgender community. Section 375 specifies that rape is a gendered crime that can only be committed by men against women. It does not consider the case where the same act is committed against a person who does not conform to the stereotypical gender roles.
Non-inclusion of Transgenders
Section 375 of the Indian Penal Code is worded in such a manner that it only takes into account a situation where the victim is female and the perpetrator male. Wording the provision in a way which is so gendered specific makes it suffer from the exclusion of the LGBTQ community.
Just because the language of the provision bars any other gender than women, the crimes of the same intensity go unregulated. Thus, cases of sexual assault that do not fall under the male on female paradigm go unreported, or much less punishment is given in such cases.
The basis of the argument of keeping laws pertaining to sexual offences as gender-specific is also vested in society’s social norms and the deep-rooted patriarchy. A crime such as that of rape is seen as not just a violation of a women’s bodily integrity but is also seen as damage to a women’s image and honour in society. Often, the crime of rape is committed as a show of power, rather than the sexual desire of the man. However, the only reason for not incorporating any other gender under the ambit of protection as provided by the provision shows the inability of the society to recognize the power dynamics existing in the society against the transgender community. The treatment meted out to the individuals belonging to the transgender community is generally prejudiced. Their behaviour is something that is considered to be out of order, and their sexual orientation is seen as a disease. They are even more vulnerable to sexual offences.
What Can be Done?
The right to bodily integrity cannot be just granted on the basis of gender an individual ascribes to. The right to bodily integrity is a human right that a person is entitled to get by virtue of being a human. Since the provisions pertaining to sexual offences in India aims at protecting bodily integrity, it is essential that the lawmakers bring changes and also extend the protection to individuals belonging to the transgender community. Section 375 of the IPC provides for a punishment of seven years or more in case of rape by a man on a woman. This punishment can extend to life imprisonment or the death penalty. However, a case of the same vigour but committed against a transgender person falls under the provision of section 377, which provides a much lesser punishment. Such a distinction made on the point of gender is unfair and depicts the discriminatory behaviour of the Indian criminal system.
Thus, in order to provide equal protection to individuals who do not conform to the rigid gender system, an amendment should be made in the current laws pertaining to sexual offences, making them gender-neutral. The alternative of this could be to bring in a new law to govern such cases and make punishment at par with the laws pertaining to sexual offences. It is also important for the government to fight the inherent bias prevailing against transgender people and sensitize the people that transgender people are normal human beings who deserve equal treatment. The government should also send out a message that homosexuality is not a disease that can be cured but a normal phenomenon. It should also ensure that those who indulge in corrective rape and believe that rape and other sexual offences can be used as a means to cure homosexuality, do not go unpunished. The government has to be upfront in defending and championing for the rights of the transgender community in order to fight the transphobic environment in society. The government should also not shy away from condemning and punishing those who indulge in committing sexual offences against transgender in order to intimidate, degrade, discriminate, punish, humiliate the individuals of the community as a show of dominance, by awarding them the strictest punishments.
The transgender community has had a long history of struggle to get rights that everyone deserves. However, the rigid nature of the Indian Society has had a massive impact on their trajectory of attaining rights. A series of judgements and legislation passed by the Supreme Court and the legislature respectively suggest that change is slowly creeping in the Indian society. However, when laws are passed, which superficially tries to deal with the problem of hatred and violence, it sends a series of setbacks. Since criminal laws are nothing but a manifestation of the social norms of the society, a careful reading of such laws lays open the harsh truth about the existence of hatred against the transgender community. What is imperative is that the government takes into account such prevalent biases in society and sensitize the Indian population about the community. Bringing in amendments that take into account the susceptibility of the community and safeguarding their interests by providing protection is the first step that needs to be taken. It is also important that the government educate and sensitize the people about the challenges faced by the transgender community and send out the message that the individuals who do not affirm to the binary gender norms are as human as any other heterosexual individual and deserve equal fundamental and human rights as any other individual. A notice as issued by the Supreme Court in order to provide equal protection of transgender people against sexual offences is just the first step in realizing the dream of a society based on the tenets of democracy of equality, liberty and dignity.
The Constitution of India, art. 14, 15.
 Damini Nath, “Transgender Persons Act comes into effect” The Hindu, Jan 11, 2020, available at: https://www.thehindu.com/news/national/transgender-persons-act-comes-into-effect/article30545336.ece.
 The Transgender Persons (Protection of Rights) Act, 2019 (Act 40 of 2019), s. 2(k).
 National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
 The Indian Penal Code, 1860 (Act 45 of 1860), s. 354A-D, 375,376.
 The Indian Penal Code, 1860 (Act 45 of 1860), s. 377.
 The Constitution of India, Art. 21.
 Harshad Pathak, “Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law” 11 Asian Journal of Comparative Law, 388 (2016).
 Sarah Doan-Minh, “Corrective Rape: An Extreme Manifestation of Discrimination and the State’s Complicity in Sexual Violence” 30(1) Hastings Women’s Law Journal 167 (2019).
Express News Service, Sexual Violence against transgenders: SC notice to Centre on plea for changes in law, The Indian Express, Oct. 13, 2020, available at: https://indianexpress.com/article/india/sexual-violence-against-transgenders-sc-notice-to-centre-on-plea-for-changes-in-law-6722761/ .
BY- Swena Prashant | West Bengal National University of Juridical Sciences, Kolkata