The contemporary society in which we live is purely rational and full of
logic but while dealing with some issues of sensitive nature the rationality of
the majority of the people turn into absurdness and among such issues one issue
is transmisogyny. Even though transgender community has seen social and legal
progress but still there are instances wherein the transgender people face
pervasive discrimination in many areas of life and it's not just the society
that discriminates them but the law also does not give them their equal share of
rights and does not protect their interests well.
The inference about the discriminatory nature of the law towards the transgender
community can be drawn as the provisions of the Indian Penal Code are
discriminatory to the Transgender community as there is no room for protection
of Transgender community victims under the rape laws of Indian Penal Code and
against unnatural offences; the provisions of Indian Penal Code only protects
the women community and such discrimination is arbitrary and is in violation of
the Fundamental rights guaranteed under part III of the constitution. The
Provisions of Indian Penal Code are not gender neutral and hence stand
discriminatory to the Transgender community. First specifically, the Rape laws
of Indian Penal Code give protection to the women community only and there is
no room for the Transgender community victims. The current rape laws leave out a
large swathe of Transgender victims who become the objects of social stigma.
There have been dozens of such transgender survivors who are also well
documented in cases like
Foundation v. National Capital Territory of Delhi. As the rape law of
Indian Penal Code stands, rape is something that only a man can do to a woman.
It does not protect the Transgender community victims and has simultaneously
failed to adequately protect Transgender community victims from being sexually
assaulted. Secondly, the Indian Penal Code does not protect the Transgender
community victims against unnatural offences provided under Section 377 of the
IPC. The section penalizes unnatural offences and protects men, women and even
an animal but at the same time excludes the Transgender community which is not
justifiable. The point here is even animals are getting protection under this
section but not the transgender people which implies that the transgender
community is considered to be even inferior to animals which is absolutely
against the basic rights.
Provisions of Indian Penal Code are amongst the pre-existing laws of India which
recognize only the binary genders of male and female and lack provisions with
regard to the protection from exploitation of transgender people whom the Court
has also defined as ‘Third Gender' in the case of
National Legal Services Authority v. Union of India but the judgment lacked
implication on the part of legislature due to which a legislative vacuum has
been created and due to the absence of legal measures to cater the needs of
represented groups contradicted a number of rights including the right to a
dignified life and equality before the law.
Article 14 is a right enjoyed by ‘any person' and so it applies equally to men,
women and transgender people. Hence, transgender people are also entitled to
equal legal protection of the law in all spheres. It is contended that
discrimination is made by the provisions of the Indian Penal Code by excluding
transgender and not providing equal treatment to all regardless of their gender
identity. Such discrimination is arbitrary and is in contradiction with the Art.
14 of the Constitution of India which guarantees equal protection of laws to all
and prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth respectively.
The phrase ‘equality to the law' signifies that there shall not be any arbitrary
discrimination between one person or class of persons and another. All persons
shall as human persons enjoy equality before the law. Secondly, equal protection
shall be secured to all persons within the territorial jurisdiction of the Union
in the enjoyment of their rights and privileges without any discrimination.
Equality is a pledge of protection or guarantee of equal protection of laws.
Equality demands the individuals in society must be protected on an even
platform. The constitution requires equal treatment of all people regardless of
their gender identity and expression.
The National Coalition of Anti-Violence Projects (NCAVP) estimates that around
half of transgender people experience sexual assault and rape at some point in
their lifetime but the Indian Penal Code has failed to provide any adequate
protection to them, the constitution provides for the fundamental right to
equality and tolerates no discrimination. However, the third community of
Transgenders is still ostracized. The constitution affirms equality in all
spheres however the issue arises when it is far being not implemented
specifically, the Rape laws and provision for unnatural offences under Indian
Penal Code are in violation of Article 21 of the Constitution which includes
right to liberty, right to sexual autonomy, right to live with dignity and right
to privacy as well. The provisions are interpreted in such a way that protection
is denied to gender non-conforming, binary women.
However, recently Delhi High Court ruled allowing transgender persons to file
complaints against sexual harassment under section 354-A of the Indian Penal
Code. Moreover, section 377 of the penal code extends only to men, women and
animal, excluding transgender at the same time. Such discrimination against an
individual on the basis of gender identity is deeply offensive to the dignity
and self-worth of the individual.
Right to life is one of the basic human rights and not even the State has the
authority to violate that right. The word life means a life of dignity and not
just a mere existence or animal life. Right to life is not merely a physical
right but it also includes within its ambit, right to personal liberty and the
right to live with human dignity. There is no express provision for the relief
of compensation to such aggrieved person, who complains of the violation of
The Transgender Persons (Protection Of Rights) bill infringes various
fundamental rights of addressing the daily oppressions and indignities faced by
the transgender community, this bill seeks to further institutionalize these
very same violations. The bill views crime against transgender persons as less
violent and only grants penalty of imprisonment from six months to two years,
viewing that such crimes of sexual assault, harassment and abuse are of not
serious nature, complicit with such a view that violence committed against them
is not of serious nature. Transgender persons face transmisogynistic violence
simply for being transgender and the bill is ignorant on the nature of
transmisogyny. This erodes the concept of self-identification by inserting
conflicting provisions that contradict one another.
Chapter III of the bill talks about the recognition of the identity of
transgender persons. Section 4(2) appears to be consonance with NALSA judgement
reading that a person who is recognized as transgender shall have right of
self-perceived gender identity. But it contradicts with the concept of the same
right of self-identification as the section then subjects this right to
recognition, that the transgender community is qualified as such.
The Trafficking of Persons (Prevention, Protection And Rehabilitation) bill
does not recognize the consenting adults working as sex workers as different
from the trafficked persons. This bill by implicitly including sex workers
within the definition of persons who are trafficked makes the lives of those who
seek to make a livelihood from sex work much more precarious. The concept of the
right to life and personal liberty guaranteed under Article 21 of the
Constitution includes the right to live with dignity which in turn includes the
right to livelihood. Deprivation of livelihood would not only denude the life of
its effective content and meaningfulness but it would make life impossible to
live. And yet such deprivation of life would not be in accordance with the
procedure established by law if the right to livelihood is not regarded as a
part of the right to life.
Despite the fact that the trafficking Act claims to be addressing other forms of
slavery and servitude but the most vulnerable sections that will be adversely
impacted by the bill are adult sex workers. The fundamental flaw with this bill
is that it treats victims of human trafficking on par with adult persons in sex
Trafficking of persons into forced or coerced labour (including sexual
exploitation) cannot be equated with sex work undertaken by consenting adults.
This conflation could lead to misuse and over-broad application of the
provisions in this bill. The choice of one's gender identity is outside the
purview of scrutiny of the state and has to be respected. It entitles an
individual with complete privacy and the right to life with dignity and freedom
from state interference regardless of their sexual orientation and gender
Lastly there are no provisions in these two bills to allow for reservation for
trans persons, as mandated by the NALSA judgement, where the judgement clearly
laid the onus on the government to recognize them as a socially and
educationally backward class and take steps to pave way for all kinds of
reservation in cases of admission in educational institutions and for public
appointments. In entirety, these bills are a sheer farce in the face of the
struggle for the rights of transgender persons.
It has systematically eroded their fundamental and legal rights, placing
conditions on them to be recognized as worthy of having right to identify with
the gender of their choice, and views them as inferior, dehumanizing their
identities by not taking transmisogynistic violence against the transgender
community seriously thus denying them the protection which they are entitled to
under the constitution.