In general terms, gender means an individual's sex which defines their identity or appearance. It is usually associated with two sexes, that are, male and female. However, when individuals do not recognise themselves as either a man or a woman they are referred to as third gender or third sex or Transgenders or Hijras in India. Transgender is an umbrella term which includes Hijras or eunuchs, or persons who go through or intend to go through Sex Reassignment Surgery (SRS) also called as transsexual persons. People who like to cross-dress are referred as transvestites.

The transgender people were well respected during both the ancient and medieval time period. Earlier, it was believed that they had the ability to bless other people, especially at the time of religious ceremonies. Moreover, the third gender played a vital role in the Mughal courts since they were actively involved as either advisors, or army generals, or as custodians or guardians of harem, or tax collector. They were also considered to be loyal and thus were trusted, especially by the royal families.

The transgender people enjoyed their rights till the down fall of Mughal empire and before British Colonization rose in India. During the British era, the transgender people were treated as a separate caste all together. They were slowly removed from the administrative post given by the Mughals and were denied of civil rights too.

The whole community was criminalized once the Imperial Legislative Council enacted the Indian Penal Code (in here referred as IPC) in 1860 which under section 377 stated unnatural offences as:
whosoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.

Also, with the enactment of The Criminal Tribes Act, 1871, any person could be arrested without any warrant and imprisoned for two years or fine or both, if found dressed up as a woman, in a public street or place and danced or played music in public areas. Furthermore, the local government was required to register the names and residence of all the Transgenders residing in that area, who were suspected of kidnapping or castrating children or committing an offence under section 377 IPC.

Although, post-independence in 1949, The Criminal Tribes Act, 1871 was repealed but the ostracization of the third gender community continued.

Decriminalizing Section 377 Of IPC, 1860:

After gaining independence from the Colonial rule, many laws enacted by the British Empire were repealed. However, no legislative changes were made in section 377 of IPC and that led to establishment of Naz Foundation in 1994.

Naz Foundation (India) Trust is a non-governmental organization that works in areas of sexual health and HIV/AIDS. They had issued a writ petition before the Delhi High Court (Naz Foundation V. Govt. of NCT Delhi) challenging the constitutionality of section 377 IPC. In the petition it was alleged that the impugned section is violative of Article 14 that guarantees equality to every citizen of India, Article 15 as it prohibits discrimination based on sex and Article 21 of the Constitution of India which provides every citizen with protection of life, dignity, autonomy and privacy.

In 2009, the Delhi High Court had held that section 377 violates Article 14, 15 and 21 of the Constitution as it criminalises consensual sexual acts between adults. However, the section would continue to govern non- consensual penile, non- vaginal sex and penile non- vaginal sex involving minors. It was to protect the underage from any non-consensual sexual acts.


An appeal was filed before the Hon'ble Supreme Court of India (Suresh Kumar Koushal v. Naz Foundation) against the order passed by the Delhi High Court. In 2013, the Apex Court had held that section 377 violates Article 14, 15 and 21 of adults who indulge into consensual sexual acts in private. However, the section is not violative of the Constitution when provisions applied on minors, that is, someone who is below the age of 18 years.

The Court took the correctness on the view taken by the Delhi High Court on the constitutionality of section 377. The Court also stated that, notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting section 377 from the statute book or amend the same as per the suggestions made by the Attorney General.

This judgement, however, was overruled in 2018 (Navtej Singh Johar v. Union of India) where the Supreme Court had unanimously held that section 377 of IPC was partially unconstitutional as it violated Articles 14, 15 and 21 of the people of LGBTQ community. With that the same-sex relationship between two consenting adults was decriminalised and legally allowed them to engage in consensual intercourse. Although, the provision of section 377 which criminalised the non-consensual act or sexual act performed on animals was still held to be constitutional.

Gender Identity:

For any individual having a personal conception about themselves or self- identification is denoted as gender identity. This identification is necessary to be a member/ part of the society.
The people of transgender community, who neither identify themselves as males nor as females, got the right to choose their own gender identity, other than the one assigned to them at birth, to lead a life with dignity as guaranteed to every citizen in Article 21 of the Indian Constitution by the Supreme Court of India in (National Legal Services Authority v. Union of India). The Court had held they can legally identify themselves as third genderas non-recognition of gender is violation of both Articles 14 and 21 of the Constitution.

Moreover, the word sexused in Articles 15 and 16 of the Constitution does not only refer to biological sex of male and female, it even covers Transgenders. They, like other citizens of India, have freedom of speech and expression as guaranteed under Article 19(1)(a) of the Constitution. Along with this, insistence or pressure of changing one's gender through Sex Reassignment Surgery (SRS) will be considered illegal. Thereby, stating a persons' psychological gender shall be given priority over their biological gender.

Transgender Rape:

Problems the Transgender Community has to face:
When a person is ostracized a severe impact is left on them emotionally and psychologically. Most people have a misconception that being a transgender is a mental illness because of which they face exclusion from their families and society at large. Not many families are willing to accept their child who is neither a male nor a female. This may lead to severe aggression against the child by the family members and the child becomes a victim to violence, sexual abuse, bullying and made to feel that they have brought shame and disgrace to their families. They may even feel guilty that they were ever born.

Due to these societal rejection they have to deal with stigma, discrimination and hostile behaviour even at their workplace which makes it difficult for them to work compelling them to leave their jobs and start begging on the streets or become sex workers to earn their living. Hence, their financial stability is often weak or poor.

Furthermore, they are quite vulnerable to harassment, violence and sexual assault like rape or gang rape, molestation and forced oral and anal sex by the perpetrator. These sexual offences committed against them has further deteriorated their condition or status in the society.

Along with The Indian Penal Code, 1860 that provides with the definition of rape and punishment of rape under section 375 and section 376 respectively, a new Act called Transgender Persons (Protection of Rights Act),2019 was passed which recognises the offence of sexual abuse against the transgender community and provides with penalty for the same.

The Indian Penal Code, 1860:
Section 375:
A man is said to commit rape if he:

1. Penetrates his penis, to an extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
2. Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
3. Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or
4. Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

Under the circumstances falling under any of the following seven descriptions:

1. Against her will.
2. without her consent
3. with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
4. with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. with her consent when, at a time of giving such consent, by reason of unsoundness of mind or intoxication or the administration of him personally or through another of any stupefying or wholesomeness substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. with or without her consent, when she is under eighteen years of age.
7. when she is unable to communicate consent.

Section 376:

1. Whoever, except in the cases provided for in sub-section(2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall be liable to fine.
    
2. Whoever:
   
   1. Being a police officer, commits rape:
      
      1. Within the limits of the police station to which such police officer is appointed; or
      2. In the premises of any other station; or
      3. On a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or
   2. Being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
   3. Being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
   4. Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
   5. Being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
   6. Being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
   7. Commits rape during communal or sectarian violence; or
   8. Commits rape on a woman knowing her to be pregnant; or
   9. Commits rape on a woman when she is under sixteen years of age; or
   10. Commits rape, on a woman incapable of giving consent; or
   11. Being in a position of control or dominance over a woman, commits rape on such woman; or
   12. Commits rape on a woman suffering from mental or physical disability; or
   13. While committing rape causes grievous bodily harm or maims or disfigures or endangers life of a woman; or
   14. Commits rape repeatedly on the same woman,

Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and liable for fine.

Transgender Persons (Protection of Rights Act), 2019:
The Transgender Persons (Protection of Rights) Bill, 2019 was introduced to protect the rights of the transgender people. The Bill got the president assent on December 5, 2019 and came into effect as Transgender Persons (Protection of Rights Act), 2019 (referred as the Act) from January 10, 2020.

The main aim of the Act is to ensure that discrimination against the transgender community ends as they should not be treated unfairly or denied education, employment, healthcare, right to movement, right to purchase or rent the property or any other accommodations, privilege or opportunity. The Act also provided with right to self- perceived gender identity. They have to make an application to the District Magistrate for issuing a certificate of identity as a transgender person.

The certificate issued shall be recorded in all the official documents. Moreover, if the transgender undergoes surgery to change the gender has to make an application along with the certificate issued by the medical Superintendent or Chief Medical Officer of the medical institution where the said surgery was done. The certificate and the application will be submitted to the District Magistrate, who after being satisfied with the correctness of the certificate will issue certificate indicating change in gender.

Under Chapter VIII, section 18 of the Act, there is provision of the offences committed against the transgender and penalties which includes sexual offences as well. Section 18(d) reads as, whoever, harms or injuries or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punished with imprisonment for a term which shall not be less than six months but may extend to two years and with fine.

The Act has its own lacunas, one of them being the penalty provided against the sexual abuse. The punishment for rape of a woman under the Indian Penal Code is for ten years but which may extend to imprisonment for life, and liable for fine. However, the penalty under the Transgender Persons (Protection of Rights) Act is only imprisonment for six months which may extend to two years and a fine.

Sexual offences of any nature committed against any gender has a detrimental effect on them. They cause mental trauma to the victim but the Act fails to take that into account. The inadequacy of the punishment depicts that the transgender rape is being treated as a petty offence.

J.S. Verma Committee:
In 2013 the J.S. Verma Committee had submitted a report, The Criminal Law (Amendment) Act, 2013, which provided with the amendments in the Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act. In the Report it was stated that India cannot deny the citizens the right to be different. The right to sexual orientation is a human right guaranteed by the fundamental principles of equality. The transgender community is also entitled to an affirmation of gender autonomy along with entitlement to protection against the sexual offences as the possibility of sexual assault against them is a reality.

To protect the transgender from sexual offences or to deliver them justice, the rape laws needs to be made gender neutral, instead of gender specific. Section 376 of IPC is gender specific as it only recognises the rape of women by men, thus stating that the victims are always women and perpetrator is always a man.

Importance Of Gender Neutral Rape Laws:

Since time immemorial there has been a preconceived notion in the society that rape is gender restricted, that is, it can only be committed by a man on a woman. This assumption and prejudice among people had completely ignored the fact that even men and, especially, transgender can too become a victim of rape and other sexual offences.

With no recognition given to transgender rape, the laws of rape are also gender biased or gender specific. Section 375 and 376 of IPC, the rape laws in India, only perceives women as the victims and men as the perpetrators which provides the former with legal protection against the said offence. It does not acknowledge that transgender can also be the victim of rape. However, with enactment of Transgender Persons (Protection of Rights) Act in 2019, recognition to sexual abuses against transgender was given. Though, the duration of punishment being lesser in comparison to the one as stated in section 376 IPC for women, makes the rape of transgender a trivial offence.

Part III of the Indian Constitution provides every citizen with Fundamental Rights. Gender neutral rape law can be said to be in accordance with Article 14 of the Constitution which guarantees equality before the law and equal protection of the law. Gender neutral rape laws aims at including or providing legal protection to all the genders, not only women, who have been raped. Thus, to grant justice to transgender in rape cases, it is necessary to make rape laws gender neutral and not to remain gender specific.

Although, implementing the gender neutral rape laws is not that easy as it is still believed that rape is a gendered crime and only women, can be the victims. However, the concept of gender neutrality is not to give an upper-hand to the perpetrator or give any less protection to women but only to increase the ambit of the rape laws and thereby extend fortification to all the genders, including Transgenders.

Conclusion:
Rape is a sexual offence which can be committed against any person, irrespective of their gender. It violates basic human rights of the victim, such as, Right to Life as granted under Article 21 of the Constitution. However, with this age old belief that men being physically stronger than women, they are always considered to be the wrong-doer and women are regarded to be weakand termed as the victim. But the perpetrator can be of any gender, hence the rape laws should be gender neutral which helps in recognizing that genders, other than women, can too be victimized. Thus, it is preferable that laws are made keeping the victim as a human being in mind instead of it being only gender specific.

References

• https://www.hindustantimes.com/india-news/sexual-offences-govt-reply-sought-on-equal-protection-for-transgender-persons/story-tIbRzrccRG08O0vk17FcNK.html
• https://en.wikipedia.org/wiki/Third_gender#Transgender_people_and_third_gender
• https://indianexpress.com/article/research/eunuch-security-guards-bihar-mughal-empire-history-5266102/
• https://www.trp.org.in/wp-content/uploads/2015/10/ARSS-Vol.4-No.1-Jan-June-2015-pp.17-19.pdf
• https://www.dandc.eu/en/article/british-introduced-discrimination-transgender-persons-south-asia
• http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf
• https://blogs.lse.ac.uk/gender/2019/06/17/hijras-and-the-legacy-of-british-colonial-rule-in-india/
• https://ijcrt.org/papers/IJCRT1705102.pdf
• https://www.scconline.com
  
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