In simple terms Gender Neutral Laws refers to genders being treated equally in the eyes of the law under a gender-neutral legislation, which either clearly state each gender in the law or make the language of the law gender neutral. For instance, a "child" is defined by the POCSO Act, 2012, as "any person below the age of eighteen years," without mentioning a specific gender because the word "any" implies equality for all genders. The concept of gender neutrality refers to the idea that laws, terminology, and other social institutions should not assign people to certain positions based on their sex or gender.

This article talks about the need for gender neutral laws, especially neutrality of rape laws in India and also the judicial pronouncements, intent of the legislature for enacting or not enacting these laws even after 75 years of Independence. What is the position of gender-neutral laws in India and the way forward in implementing these laws by bringing about amendments in the existing laws?

Introduction:
This issue cropped up when a bench headed by Justice A Muhamed Mustaque of the Kerala High Court was deliberating over a child custody dispute between a divorced couple, the woman reportedly complained that the father was unsuitable to care for their child because he had been charged with rape. The man was accused of having sex with a woman under the false pretence of marriage. The court stated verbally during the hearing that Section 376 should be gender neutral since if a woman manipulates a man into a relationship, she is not prosecuted, but for the same offence a male is.

Rape is defined in India as the act of penile penetration or other foreign object into the vagina without the consent of a girl or woman. In accordance with Section 375 of the IPC, rape is defined as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud, or at a time when she is intoxicated, duped, or of unsound mental health, and in any case, if she is under the age of 16." If we examine the definition, we discover that it draws two obvious, though indirect, conclusions, firstly the perpetrator is always a man and the victim is always a woman.

According to India's definition of rape, a person who does not identify as a woman is not entitled to legal recourse as a rape victim. It is shocking that the above rule entirely excludes any prospective rape victim who does not identify as a woman in a time when dialogue has progressed so far beyond gender boundaries and gender fluidity is a social norm.

The Need for Gender Neutral Rape Laws:

• Changing notions of the Society:
  • The current rape laws are a reflection of the legal system's refusal to even consider women as rape offenders and how society views a sexual relationship, where males are consistently seen as the more dominating party rather than as equal partners in sexual activity and also the sociological aspect of "women" being the weaker sex, who can be molested and twisted around as per the whims and fancies of a "man".
  • However, today women are considered to be at par with men in every sphere of the society and this calls for a change in the rape laws of this country.
• Changes in the structure and constitution of society:
  • The society has seen a lot of change in its structure and constitution, the ideas regarding to gender and sex are changing and is not limited to the conventional two sexes but also widening of the Gender Spectrum and the representation and presence of the LGBTQ community.
• Inadequate Legal Provisions:
  • The existing legal provisions, such as Section 377 of the IPC, which criminalizes "unnatural offenses," and the Transgender Persons (Protection of Rights) Act, 2019, do not cover all non-consensual sexual acts. These laws do not provide comprehensive recourse for male and transgender victims.

Legal Advancements so far�.

1. Sudhesh Jhaku v. K.C Jhaku:
   Gender neutrality in Indian rape laws was first time dealt in the case of Sudesh Jhaku v KC Jhaku. In this case, important issues like considering rape as a sexual assault rather than as a special crime against women (gender neutrality) and the confinement of the definition of rape only to penile penetration of the vagina were raised
    
2. 172nd Law Commission Report:
   This report made several recommendations regarding rape laws:
   • It suggested making the offence of rape gender-neutral by replacing the word "rape" with "sexual assault."
   • The report proposed that the definition should include all forms of penetration (vaginal, oral, anal, or with objects).
   • It recommended that sexual assault committed by husband against his wife should be recognized as an offence.
   These recommendations were progressive for their time but were not immediately implemented.
    
3. Justice Verma Committee Report (2013):
   Following the infamous Delhi gang rape case in 2012, the Justice Verma Committee was formed to recommend amendments to criminal law. Regarding gender neutrality, the committee:
   • Suggested making the perpetrator of sexual assault gender-neutral.
   • Recommended retaining the term "woman" for the victim, arguing that women were overwhelmingly the victims of sexual violence.
   • Proposed expanding the definition of sexual assault to include non-penetrative acts.
    
4. Criminal Law (Amendment) Ordinance, 2013:
   On the basis of the Justice Verma Committee's recommendations, the government initially passed an ordinance that included gender-neutral language for both the perpetrator and the victim of sexual assault. However, this was short-lived.
    
5. Criminal Law (Amendment) Act, 2013:
   When the ordinance was replaced by an Act of Parliament, the gender-neutral language was removed. The Act:
   • Retained the gender-specific definition of rape (male perpetrator, female victim).
   • Expanded the definition of rape to include non-penetrative acts.
   • Increased penalties and punishment for sexual offences.
    
6. Private Member Bill (2019):
   In 2019, K.T.S. Tulsi, a member of the Rajya, introduced a Private Member Bill proposing gender-neutral rape laws. The bill suggested:
   • Replacing the word "man" with "whoever" in the definition of rape.
   • Including all genders as potential victims of sexual assault.
   • Amending related sections of the Indian Penal Code to reflect gender neutrality.
   While this bill brought the issue back into parliamentary discussion, it has not been passed into law.  
    
7. Transgender Persons (Protection of Rights) Act, 2019:
   This Act did not address the issue of gender-neutral rape laws, but it was a significant step in recognizing the rights of transgender persons. However, it has been criticized for:
   • Not providing adequate protection against sexual violence for transgender individuals.
   • Prescribing lighter punishments for sexual offences against transgender persons compared to cisgender women.
    
8. Other Relevant Case Laws:
   1. Naz Foundation vs. Govt. of NCT Delhi (2009):
      The Delhi High Court decriminalized consensual homosexual acts, reading down Section 377 of the IPC. This decision was later overturned by the Supreme Court in 2013.
       
   2. National Legal Services Authority (NALSA) vs. Union of India (2014):
      The Supreme Court recognized transgender individuals as a "third gender" and affirmed their fundamental rights, including the right to self-identification of gender.
       
   3. Navtej Singh Johar vs. Union of India (2018):
      The Supreme Court partially struck down Section 377, decriminalizing consensual homosexual acts between adults. This decision has implications for recognizing diverse sexual orientations and gender identities in Indian law.

The way forward�.
If India were to implement gender-neutral rape laws, several pieces of legislation would require amendments:

• The Indian Penal Code, 1860 (particularly Sections 354 A, B, C, D, 375, and 376)
• The Code of Criminal Procedure, 1973
• The Indian Evidence Act, 1872
• The new criminal legislations i.e. the Bharatiya Nyaya Sanhita, Bharatiya Nagrik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam have failed to bring about any changes in the above sections and are merely a continuation of the older Acts in this regard.
• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Conclusion
The debate over gender-neutral rape laws in India reflects evolving understandings of gender, sexuality, and justice. Proponents argue for equal protection for all victims, including men and transgender individuals, aligning with constitutional equality. Critics worry about diluting focus on violence against women and potential misuse of such laws.

Despite various proposals, India hasn't implemented fully gender-neutral rape laws. This ongoing discussion highlights the challenge of creating inclusive legislation while addressing specific vulnerabilities.

As society evolves, so must our legal frameworks. This debate prompts reconsideration of our approach to gender and justice. While there's no easy solution, continuing this dialogue is crucial for developing a more equitable legal system that protects all individuals, regardless of gender identity.

References:

1. https://www.legislation.gov.uk/ukpga/2003/42/section/1
2. https://main.sci.gov.in/judgment/judis/41411.pdf
3. https://legislative.gov.in/sites/default/files/A2019-40.pdf
4. https://indiankanoon.org/doc/31934/
5. https://lawcommissionofindia.nic.in/rapelaws.html
6. https://www.prsindia.org/uploads/media/Justicevermacommittee/jsvermacommittereport.pdf
7. https://www.prsindia.org/billtrack/criminal-law-amendment-bill-2013
8. https://prsindia.org/billtrack/private-member-bills-introduced-rajya-sabha-winter-session-2019
9. Gender Neutrality of Rape Laws - International Journal of Law Management & Humanities (ijlmh.com)