Sexual Assault Against Transgender: The Definitional Void And The Absurdity Of Indian Penal Provisions

Every year in the month of June, the world witnesses a plethora of parades. The internet is filled with pictures of people advocating for LGBTQ rights, celebrating it as Pride month and this also echoes in the heart of India. In fact, in India, this joyful crescendo extends to early July, as India celebrates Indian Coming Out Day on July 2 to commemorate Naz Foundation vs Government of NCT Delhi^[1], a Delhi High Court judgment decriminalizing homosexual sexual activity, which was later affirmed in the case of Navtej Singh Johar v. Union of India^[2].

However, India's strive for gender equality and gender neutrality sounds hollow as its criminal laws fail to acknowledge the same when it comes to crimes relating to sexual offenses. What could be less than manifest incongruity that on July 1, 2024, the day after Pride Month's close, we came up with three new laws: Bhartiya Nyaya Sanhita, Bhartiya Surakshka Sanhita and Bhartiya Sakshya Adhiniyam with no gender neutral provisions. It is palpable and concerning that a nation that embraces the concept of a third gender still clings to gendered definitions of sexual crimes, creating a significant legal disparity.

The situation gets worse, as justice falters most profoundly in the cases of sexual assault against transgender individuals, who were caught under the definitional void of men and women. They were subject to different forms of sexual assault, like rape, sodomy, bestiality etc., collateralized with extortion, abuse, and violence, and often get unrecognized due to lack of proper protection and specific mentioning under the relevant statutes interwoven with various other socio-economic factors. A sampled survey shows an overwhelming eighty percent of the sample had experienced sexual assault and 37% reported repeat victimization-assault during both childhood and adulthood, a testament to their pervasive vulnerability.^[3]

The non-recognition and invisibility of transgender victims can be visualized from National Crime Records Bureau (NCRB) data that the transgender community comprises 0.53 percent of the country's population, yet they constitute 0.006 percent of all crime victims. In 2020, NCRB recorded only 236 crime victims who were transgender. In the report of 2022, only nine transgender murder victims, and no rapes involving transgender people were registered^[4].

Equality can blossom in the modern notion of the state through the enactment of laws rooted in the principle of equality before law, but problems persist and injustice lingers when laws themselves are unequal. Historically, the legal systems were shaped by patriarchal ideologies, often excluding trans individuals from recognition or protection, and this systemic non-inclusion permeates nearly every facet of Indian criminal legislation. Even the male gender finds incomplete protection, rendering the inclusion of a third gender a distant, fading dream.

In this article we will dissect the legal framework surrounding sexual assault of transgender, the persistent disparity between the constitutional mandate of Articles 14, 15, 21, i.e. of equality, non-discrimination, and the right to life with dignity, and the stark reality of gender-specific laws alongside and the existing lacunae in them.

Transgender is a broad term that is used to describe those people whose gender identity is different from the gender they were thought to be when they were born. As per The Transgender Act, 2019, a transgender person is such a person whose gender does not match with the gender assigned to that person at birth. Furthermore, the definition includes trans-man and trans-woman (it is immaterial that such a person has undergone any sex-reassignment surgery), and persons with intersex variations, gender queues and persons having such socio-cultural identities as kinner, hijra, aravani and jogta. By going with this definition, a substantial and diverse population has been covered. However, under the Indian Penal Code, 1860, the concept of gender remains limited.

Under the Indian Penal Code, 1860, the word gender is defined as - The pronoun “he” and its derivatives are used by any person, whether male or female. Further, Section 10 defines men and women as male and female human beings of any age. Here it is patent that the Indian Penal Code expressly excludes transgender persons. The exclusion becomes more pronounced in the provisions related to sexual offenses. Sections 354, 354B, 354C, 354D use the word woman, excluding transgender. The offense of rape defined under Section 375, considered as the most heinous crime, also uses the word women. Interestingly, Section 354A does not exclusively use the word women in all its clauses. It provides the definition of the offense of sexual harassment, which is –(1) A man committing any of the following acts—

(i) physical contact and advances involving unwelcome and explicit sexualovertures;or(ii)ademand or request for sexual favours; or(iii) showing pornography against the will of a woman; or(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Since clauses (i), (ii), (iv) do not expressly use the word women, hence, transgender persons might get certain relief under these clauses, and Delhi High Court has also affirmed this view in the order dated December 17, 2018^[5].

Similar is the story of The Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Reparation) Act, 2013. In section 2(n) of the Act, “sexual harassment” has been defined. Further, section 9 of the Act provides that any aggrieved woman may make a complaint of sexual harassment. The word “Aggrieved Woman” has been defined under section 2(a). Now, on perusal of all these sections, we get that transgender persons are outside the ambit of this Act also.

"To err is human, but to persist in error is diabolical”. This fundamental concept is painfully applicable to the current state of Indian criminal jurisprudence. In 2023, Parliament came up with three new Acts repealing the old criminal and evidence laws and the Indian Penal Code, 1860, was replaced by the Bharatiya Nyaya Sanhita, 2023. The new criminal law was expected to be progressive and inclusive, but the awaited metamorphosis remained elusive. The provisions relating to sexual assault remain unchanged, thereby again leaving a vast number of the population unprotected.

It is important to note that few changes have been made to the BNS which make it somewhat inclusive in contrast with its predecessor IPC. One of such changes can be seen in the definition of the word “gender”, which is provided under section 2(10) of the Sanhita. Sub-section 10 says “gender” - The pronoun “he” and its derivatives are used by any person, whether male, female or transgender. Further, the explanation of section 2(10) provides that the word transgender shall have the same meaning as assigned to it in clause (k) of section 2 of the Transgender Persons Act, 2019. But all the related provisions on sexual assault still carry the term “women”, which is non-neutral terminology, excluding transgender persons. While defining women, section 2(35) says that women means female human beings of any age. Chapter V of the Bharatiya Nyaya Sanhita, 2023 deals with the offense against women. Section 63, section 74, section 75, section 76, section 76, section 77, section 78, and section 79 of the Act are incorporated with the term women. Now the difficulty is that, on the one hand, the new Act widened the definition of gender, but on the other hand, it still restricts the offenses of sexual assault to women only. So the change made can never be fructified to its fullest until the provisions are made gender-neutral. Thus, there is no wrong in saying that the change made under the Act is nothing more than a feather's touch against a mountain's weight.

In 2019, Parliament passed the Transgender Persons (Protection of Rights) Act to tackle the inequalities faced by transgender people. However, sexual assault continues to have different legal provisions. The eighth chapter of the Act is on offenses and penalties and section 18(d) of the Act addresses part of the offense of sexual assault on a transgender person. However, the punishment for such an offense is much milder than the equivalent provisions of the Bharatiya Nyaya Sanhita.

So the strive of India towards the protection of transgender persons that was started with the Naz Foundation case in 2009, sailing through various judicial pronouncements like NALSA v. Union of India^[6] (2014) and Navtej Singh Johar v. Union of India^[7] (2018) is still in limbo due to the absurdity of the penal provisions. Although the 172nd Law Commission Report advocated gender-neutral laws of rape and the Supreme Court's recognition of the gendered character of Section 375 IPC, parliamentary paralysis has stifled substantial reform. The private member bill^[8] presented by Senior Advocate K.T.S. Tulsi in 2019 attempted to fill these lacunae, but its non-passing is a sterling example of this paralysis and lawmakers' hesitation to address the same.

The Bharatiya Nyaya Sanhita, 2023, though an opportunity for inclusivity, has largely retained the gendered approach of its predecessor. Conversely, legislation such as the Immoral Traffic (Prevention) Act, 1956 has taken a step towards inclusivity by using neutral language. Word “Person” has been substituted in place of “Women & Girl”, “Female undertrials” was substituted with “undertrials” in several provisions by the amendment made in 1987. The Transgender Persons (Protection of Rights) Act, 2019 was another increment towards acceptance of transgender rights, but its sexual assault provisions are still insufficient to provide the required protection.

The inaction to implement gender-neutral laws of sexual assault not only runs counter to the constitutional requirements of Articles 14, 15, and 21 but also reinforces systemic exclusion. For India to effectively promote gender justice, it needs to understand that sexual violence does not target a particular gender. A justice system that does not protect whole sections of the population is unjust in itself. The time has arrived for the legislature to pass effective, gender-neutral legislation on sexual assault that ensures respect for the principles of equality, dignity, and non-discrimination to deliver justice to all without regard to gender identity.

Authors are third-year LLB (Hons.) students at the Faculty of Law, Banaras Hindu University. Views Are Personal.

1. 2009 (6) SCC 712 ↑

2. AIR 2018 SUPREME COURT 4321 ↑

3. https://pubmed.ncbi.nlm.nih.gov/38100176/#:~:text=Results%3A%20Eighty%20percent%20of%20the,during%20both%20childhood%20and%20adulthood. ↑

4. https://nhrc.nic.in/sites/default/files/2024-8-16_compressed.pdf ↑

5. https://www-livelaw-in.demo.remotlog.com/delhi-hc-affirms-application-of-ipc-sexual-harassment-provision-to-transgenders-read-order?from-login=859027&token=RDWEBTFZG0DJKEKEHEILFGEH9REQFQW2RRAP ↑

6. (2014) 5 SCC 438 ↑

7. AIR 2018 SUPREME COURT 4321 ↑

8. https://www-livelaw-in.demo.remotlog.com/news-updates/kts-tulsi-introduces-bill-to-make-rape-gender-neutral-offence-146304 ↑