INTRODUCTION
From Vedic period till now, the position of transgenders in our society has changed drastically. But due to the gaps and non-recognition of them in laws, there rights have been violated in many arenas as well. The only reason being, the absence of gender-neutral laws relating to sexual offences in India. Reformations are the need of the hour and we’re capable of witness a lot of exchange collectively with duties been taken as a whole lot as make fast-song the way of gender unbiased prison tips. Right to attempting to find protection closer to sexual offences is a vital right confident with the resource of the use of the Constitution of India and the same is one of the crucial pillars for gender justice, subsequently cannot be overlooked at any cost. A gender unbiased criminal law will reflect secured position of girls, men and transgender community who can be every victim and perpetrators of crime. The offences committed against them are generally hate crimes and people need to be taught about their rights and furthermore, their recognition in laws needs to be increased.
SEXUAL OFFENCES
Sexual offences are the acts that take the form of sexual violence and the damages caused are irreversible and leave irreparable damages to the physical and mental health of the victims. The Indian law recognises a wide range of sexual, sex- related acts and actions. Law tells us detail what sexual offences are but the exact definition still remains ambiguous. Sexual offences are any undesirable sexual behaviour, whether physical, intellectual, or mental in degree, that results in the victim’s will being suppressed by violating their personal space, where they feel compelled or manipulated, and that involves the infliction of suffering. (Kissing, groping, sexual contact, etc.) It can also be regarded as an assault when it involves inducing sexual contact between adults or minors without their consent. These acts result not only in physical damage including serious dangers to reproductive health, STIs, but also mental injuries by the victim, severe depression, suicidal ideation, and other things.
The Indian Penal Code, 1860 describes the sex related offences in the Section 354 & 375- 377. In India, rape is defined in Section 375 of the Indian Penal Code (IPC). The Criminal Law (Amendment) Act, 2013 expands the definition of rape beyond penile-vaginal penetration.[1]
Corrective Rape: When a woman who self-identifies as non-heterosexual is raped, the act is referred to as “Corrective Rape,” with the attacker claiming it was done to “put her straight.” It can also be committed against cisgender homosexual and bisexual males, trans men and women, and can also be a problem in so-called “honour” based abuse. The same motive might be used in other sexual attacks. In these situations, there may be evidence that the offence was motivated by hostility toward people of a particular sexual orientation or transgender identity. Alternatively, the offence may be accompanied by a demonstration of hostility based on the victim’s actual or assumed sexual orientation or transgender identity.
Sexual Violence in prisons: Prison environments create closed communities where some prisoners are particularly vulnerable and potential for sexual abuse. Power relations among prisoners can be a significant problem. Ending a relationship or withdrawing consent to sexual activity is especially difficult in such a closed community. Prisoners may engage in sexual relationships in hopes that the relationship will end when one or both parties are released. If your partner does not want the relationship to end, they may face harassment and abuse outside of prison.
WHO ARE TRANSGENDERS?
The transgenders are those who believe that they are of another gender than the sex they are born. Transgender (trans) is an umbrella term describing people who do not identify with their birth-assigned gender.[2] Individuals whose lived gender identity does not conform to their physiological appearance. It includes cultural categories such as hijras, transvestites as well as transitioning or post-operative trans persons. Transgender people may identify themselves as either male or female gender identity, both, or neither. [3]
In the landmark judgement of NALSA V. Union of India that was passed in 2014 by the Supreme Court of India, after so much debates the judiciary lastly recognised trans people and gave them the roles of “third gender”. Still lagging behind, the nation after recognizing the third gender till now haven’t developed enough to recognise the third gender in relation to sexual offences. The addition of third genders in the legislations is a dream because these criminal laws do not even give shelter to males. As a relief the third gender is at least given with constitutional equality. In India, the 2013 Amendments retain the gender-specific nature of the offence of rape.[4] Non-consensual anal intercourse between adult males is criminalised under section 377 of the IPC, which was later removed in the case of Navtej Singh Johar v. Union of India.
Any sexual abuse against transgender person is an offence, punishable with six months to two years under the Transgender Persons (Protection of Rights) Act 2019. Though this is much lesser in comparison to rape in IPC. There are evidences of trans women and trans feminine people experiencing high rates of sexual and physical violence. The international trans murder monitoring (TMM) project concluded that the maximum number of murders are of trans women.
96% of those murdered globally were trans women or transfeminine people, 58% of murdered trans people whose occupation is known were sex workers, The average age of those murdered is 30 years old; the youngest being 13 years old and the oldest 68 years old.[5] The majority of victims are Black and migrant, trans women of colour, as well as trans sex workers, which is a concerning trend when it comes to the intersections of misogyny, racism, xenophobia, and hate towards sex workers. These figures just provide a window to the actual problem. Most of the information was gathered from nations where there is a well-established network of trans and LGBTQ monitoring organisations. The majority of nations do not consistently collect data and moreover many such incidents go unreported and, when they are brought forward, they receive little attention.
A study by the National Human Right Commission (NHRC), India has found that 51% of the transgender community faced harassment by their school mates and 15% from their teachers which resulted in dropping out the schooling.[6]
IMPORTANCE OF GENDER-NEUTRAL RAPE LAWS
The inclusion of third gender recognition is a big achievement of India in the 21st Century yet the implementation of equality and neutrality is yet to be achieved. It has been found out that trans people are not provided with fair justice in criminal cases. And the reason for this is that criminal laws identify only two genders i.e., male and female, there is not any mention of a third gender or transgender and the end result is the chaos and no clarity in providing justice to trans people.
It is the general notion of people to consider that only men can inflict pain on women in cases of physical and sexual offences. We more often than ever tend to ignore the distress of trans community which extend to hijras and kothis in Indian context. In India various documents have shown violence against the transgender yet they have been the victim of sexual violence since ages.[7] Although there has been much debate and important judicial guidance about the position of the law in the last 10 years, there are still unresolved issues that pose a threat to the transgender community’s sexual minority. Here are a few of them:
Indian Penal Code, 1860: The IPC does not provide for the definition of sexual offences and all sexual offences, except Section 377, are made gender-specific, that is, the victim is always deemed to be a woman while man is seen as the perpetrator.[8] Section 377 still doesn’t have that concrete solution Sexual violence against transgender people. The main objective of gender neutrality in sex crimes under IPC is to: A holistic approach and understanding of crime beyond the lens of gender. in the midst of decriminalization Section 377 applies only to consensual homosexual acts and other non-consensual sexual acts between two adults. The act still falls under the category of “unnatural crime” and the legal situation remains precarious. Also, the range of This section is not broad enough to consider any form of sexual harassment or assault as a crime that can be satisfied with this. Sodomy standards, Rape, voyeurism, stalking, human trafficking, A place where people in the transgender community are victims of everyday life. Also, not worth all these crimes do not fall under “crimes against nature” and are therefore outside the scope of this section. A Justice Verma Commission report of 201319 identified widely different types of sexual crimes. No mention of other sex offenses committed only to women and not mentioned under the umbrella of “rape”. As for other provisions of the law relating to sex crimes, such as section 354: For crimes such as stalking, voyeurism, the word “woman” is “Anybody” to ensure protection not only for society, but for the transgender community, which faces much oppression It also includes law enforcement based on gender and economic status. the importance is there on changing the Criminal Code of 1860 into a gender-neutral law. The new law could have the same effect as the Penal Code of 1860. Time to have a holistic approach to other laws governing crime involving transgender people community.
Position of transgender under POSH Act, 2013: The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, as its name implies, is gender-specific and only safeguards women against sexual harassment at work. It disregards men and transgender people, who might even become victims of sexual harassment at work. Regarding the transgender population in particular, this group is seen as a sexual minority group and therefore, because of their gender and the lack of particular laws protecting women from sexual harassment, are more susceptible to it than males for shielding them. Every citizen of our country has a right to live, a right to a life that is respectable, and the legislation that safeguards those rights of individuals and punish sexual offences cannot selectively protect one. In the current decade we have the examples of Taj Group of Hotels and Godrej, where there exists gender-neutral law to protect its all employees making no distinction of gender. We wish to have the same amendment in the current POSH Act, 2013 too.[9]
Position of transgender under Immoral Traffic (Prevention) Act, 1965: The transgender community is known to be the group most impacted by human trafficking. The Immoral Traffic (Prevention) Act of 1956 was designed solely to safeguard women and children against human trafficking. However, a change was introduced in 1986 to cover not just males and women but also all those people who do not come under these two categories due to an upsurge in human trafficking for sexual exploitation. The result is that men and transgender became the offenders and women became victims. In other words, the Act failed to understand that transgender can also become victim of such trafficking for sexual exploitation. To add more, when the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018[10] was proposed, it affected the transgender community as the Bill criminalized the acts of beggary and consensual sex work.
CONCLUSION
Some people disapprove of all labels that describe their sexual orientation or gender identity. It’s crucial to respect each person’s decision and ask them how they would like to be addressed. Many LGBTQ persons live very private lives and worry a lot about being discovered. Some people are quite outspoken about who they are, and for them it’s crucial that their sexuality or transgender identity are accepted. It is crucial to respect individual choice in this regard because it will affect how people identify and represent themselves. Even persons who identify in many ways quite openly might not be out in all facets of their lives. While the legal guidelines of the United States seem regressive, one has to additionally keep in mind that the idea of transgender and their role remains very touchy and perilous and it’d take a pretty a long term to and social recondition to end up greater inclusive closer to the 1/3 gender. Reformations are the want of the hour and we are able to witness a lot of alternate together with tasks been taken as much as make fast-music the manner of gender impartial legal guidelines.
To sum up, the legal guidelines on rape and sexual violence such as attack need to be made gender impartial as withinside the cutting-edge time transgender network is similarly prone as that of ladies in our society and are susceptible to sexual violence and harassment due societal energy dynamics. Right to searching for safety towards sexual offences is an important proper assured with the aid of using the Constitution of India and the equal is one of the critical pillars for gender justice, hence can’t be omitted at any cost. A gender impartial crook regulation will replicate secured role of ladies, guys and transgender network who may be each sufferer and perpetrators of crime.
[1] Section 375 of the Penal Code A man is said to commit “rape” if he—
a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
b. 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
c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.
[2] Vincent, B. (2018). Transgender health: A practitioner’s guide to binary and non-binary trans patient care. Jessica Kingsley Publishers.
Date accessed September 1, 2022
[3] GUIDELINES & PROTOCOLS – Ministry of Health and Family Welfare https://main.mohfw.gov.in/sites/default/files/953522324.pdf
Date accessed August 12, 2022
[4] Non-consensual anal intercourse between adult males is criminalised under section 377 of the IPC.
The Supreme Court in Navtej Singh Johar and Ors v Union of India decriminalised consensual anal intercourse.
[5] Transgender Europe, ‘Trans Murder Monitoring’ https://transrespect.org/en/trans-murder-monitoring/ Date accessed August 30, 2022
[6] Shruti Jain, Pride Month 2020: Evaluating the Transgender Persons Act, 2019, Observer Research Foundation, <https://www.orfonline.org/expert-speak/pride-month-2020-68965/> Date accessed September 2, 2022
[7] Human Rights Violations against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India, (2003), Peoples’ Union for Civil Liberties, Karnataka (PUCL-K). https://www.pucl.org/Topics/Gender/2004/transgender.htm Date Accessed September 1, 2022
[8] Philip N.S. Rumney, In Defence of Gender Neutrality within Rape, Seattle Journal for Social Justice https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/ Date Accessed September 1, 2022
[9] Mr. Shankar Banerjee, Dr. Vishwa Deepak Bhatnagar SEXUAL OFFENCES AGAINST TRANSGENDER 2022 JETIR July 2022, Volume 9, Issue 7 <www.jetir.org (ISSN-2349-5162)>
[10] Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, http://www.scconline.com/DocumentLink/27IkNY72, Accessed at: September 1, 2022
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