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Punishment for Sexual Offences under the Transgender Persons (Protection of Rights) Act, 2019: Are they really Progressive?
Historically, India has always had a culture of perceiving women as a weak and vulnerable group whose only reason for existence was to satiate a man’s thirst for power, lust and control, often to secure his own masculinity. Rape and other sexual violations were prevalent forms of asserting dominance and stripping women of their identity, thereby merely reducing them to property[1]. As society progressed there was an onset of Women’s Rights Movements that led to a gradual realization of the need to protect women from various forms of sexual violence through judicial precedents and protective legislations[2]. Although it is statistically proven to be necessary to focus on women, as they are still vulnerable to these crimes[3], other sections of society like transgender individuals who are also vulnerable to such offences are neglected. However, the gender bias in these laws is justified by academicians, legislators and some feminist groups who believe that their inclusion would dilute the significance of providing protection to women[4]. Even after the judgement in NALSA v. Union of India[5], which recognized transgender as the third gender and led to the enactment of the Transgender Persons (Protection of Rights) Act[6], 2019, their rights against sexual abuse have not been safeguarded to the same extent as that granted to women because the penalty imposed by the Act is considerably less severe.
Transgender individuals are a marginalized community who have faced severe abuse from society and although they have fought for their rights[7], they are in no way close to being treated as equals in society[8]. Especially when it comes to rape, transgender’s rights against this heinous crime have been completed neglected as the Indian Penal Code fails to provide any recourse due to its narrow and binary-gendered definition of rape. Even Section 377 of the Code which protects men, women and children from unnatural offences fails to include the transgender community[9]. The Transgender Persons (Protection of Rights) Act, 2019 which come into force on 5th December 2019, safeguards transgenders by prescribing a penalty for sexual abuse of such persons but penalizes the offence with imprisonment of six months which can extend up to 2 years[10]. The strictest punishment for abusing a transgender individual is lesser than the minimum punishment prescribed to a rapist of a women which shows the lack of parity in laws in terms of gender.
Transgender individuals have also found themselves helpless when it comes to finding a recourse against sexual assault due to the acknowledgment of only binary conceptions of gender[11]. Until a few years ago, their rights were not protected by law as they were not even recognized as a separate gender[12]. They have, however, continued to be marginalized and subject to physical, emotional and sexual abuse due to hate crimes perpetrated against them only because of their sex as they do not conform to the accepted notions of gender[13]. They are often subject to corrective rape - rape used against people who do not conform to social norms[14], by their own families to avoid any religious persecution or ostracization of the whole family.
A report submitted by the National Coalition of Anti-Violence Programs (NCAVP)[15], in 2012, found that transgender individuals were two times more likely to be abused and harassed in intimate relationships. This number can only be higher in India as ‘transgender’ was recognized as a third gender only recently. Since domestic violence is rooted in the expression of strength and the socially accepted idea of gender norms, transgender people are more susceptible to domestic violence because of their non-conformity to either of the binary genders[16].
Article 15(3)[17] of the Constitution of India allows for special legislations to be enacted for the protection of women and children but only when they are in need of upliftment from circumstances that treat them unequally. Although one cannot deny that women are impacted by sexual abuse in greater numbers[18], it would be fallacious to assume that other genders are not victims of such offences. Transgender individuals, having only recently had their rights recognized, are currently one of the most vulnerable groups as the recent act relating to transgenders[19] does not prescribe adequate penalties for sexual abuse and they are also excluded from the purview of the other protective legislations[20]. This lacuna must be addressed not just by recognizing that they can be victims of sexual abuse but by also solidifying this recognition through laws that offer them adequate protection.
[1] David P. Bryden & Erica Madore, Patriarchy, Sexual Freedom, and Gender Equality as Causes of Rape, 13 Ohio St. J. Crim. L. 299, 305- 307 (2016).
[2] Sharbani Ghosha, Socio-Political Dimensions of Rape, 70 The Indian Journal of Political Science 107, 107-09 (2009).
[3] Id.
[4] Catherine MacKinnon, Reflections on Sex Equality under Law, 100 YALE L.J. 1281 (1991).
[5] National Legal Services Authority v. Union of India and Ors AIR 2014 SC 1863.
[6] The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019.
[7] Govindasamy Agoramoorthy, Living on the Societal Edge: India's Transgender Realities, Journal of Religion and Health (Feb. 17, 2020, 1:12 PM) www.jstor.org/stable/24485502.
[8] Id.
[9]Melinda Chow, Smith v. City of Salem: Transgendered Jurisprudence and an Expanding Meaning of Sex Discrimination Under Title VII, 28 Harvard Journal of Law & Gender 207, 215 (2005).
[10] The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019.
[11] Supra note 4.
[12] National Legal Services Authority v. Union of India and Ors AIR 2014 SC 1863.
[13] Ina Goel, Trajectories of the Transgender: Need to Move from Sex to Sexuality, 47 Economic and Political Weekly 20, (2012).
[14] Sarah Doan-Minh, Corrective Rape: An Extreme Manifestation of Discrimination and the State's Complicity in Sexual Violence, 30 Hastings Women's L.J. 167 (2019).
[15] Darrick Ing & Tiffany Woods, Why Talking About Domestic Violence in the Transgender Community Matters, Transgender Law Center, (Feb. 17, 2020, 1:11 PM), https://transgenderlawcenter.org/archives/9392.
[16] Dipika Jain & Kimberly Rhoten, A Comparison of the Legal Rights of Gender Non-Conforming Persons in South Asia, 48 Economic and Political Weekly 10, 11 (2013).
[17] India Const. art. 15, cl. 3.
[18] Jayna Kothari, Violence that is Not Gender Neutral, Centre for Law & Policy Research (Feb. 16, 2020, 9:22 PM), https://clpr.org.in/blog/violence-that-is-not-gender-neutral/.
[19] The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019.
[20] Pallavi Arora, Proposals to Reform the Law Pertaining to Sexual Offences in India, 3 J. Indian L. & Soc'y 233, (2012).
- Transgender Persons (Protection of Rights) Act
- Gender Parity
- Sexual Offences
