By Anvitha B V Gowda

Abstract:

Although there have been attempts to modify the stain on transgender persons, the legislature has done very little to bring forth the needed advancements in the system. The image of victims and survivors is constantly defined in the courtrooms to outcast particular sections of society. The article aims to study the role of judiciary and legislature in inculcating change.

The stigma of conventional femininity has still not been renounced from its association with the existent complications surrounding the gendered society. Barely anything has been of benefit from the judiciary through the years to overcome the predicament of the members of the transgender community. Trans Gender Persons (Protection of Rights) Act, 2019, has done the bare minimum for the community intended. The prime focus of the article is to decode the laws and the judgements pertaining to transgender women coupled with the laws for women with a foremost emphasis on sexual offences. The parallel among the law is essential to configure the prejudice held against trans women and women.  

Everyday occurrence of violence and discrimination against transgender women is not an indistinct issue. However, the source of such violence and discrimination is what society has been ignorant to perceive. A noteworthy recommendation in the judgement of NALSA v Union of India – is “ to address the structural determinants of risks and mitigate the impact of risks. For example, mental health counselling, crisis intervention (crisis in relation to suicidal tendencies, police harassment and arrests, support following sexual and physical violence)…”. I would like to reflect upon ‘structural determinants of risks’ which have been unravelled in the article by Jigyasa Mishra titled Raped, Mocked By Police For Seeking Justice: India’s Rape Laws Do Not Cover Transwomen — Article 14. The article calls attention to the abuses that transgender women go through at the hands of perpetrators disguised as saviours. The article was published in the year 2020 while the formerly cited landmark judgement was held in 2014, the need to note this is of grave importance in order to evaluate the impact of the judgement. The Trans Gender Persons (Protection of Rights) Act, 2019 S.18 states that whoever (the offender) mentally or physically abuses a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine. 

The Act for Transgender persons is definitely a step forward from the stagnant abuse and violence but the judgement has not yet been inclusive of transgender persons as it deems to be, especially, unlike S. 376 IPC that imposes rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable with fine. Let alone the fact that there have been no rape laws to protect transgender people, the ones that cover little under S.18 of the Trans Gender Persons (Protection of Rights) Act, 2019 have resulted inconsequential. Speaking of rape and sexual offences, we are aware of the contentions surrounding ‘consent’, especially in the well-known case of Mahmood Farooqui v State (Govt of Nct Of Delhi,)  the judgement states that “an expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape” and “A person who has been violated against her wishes would not be so understanding as to confront the appellant with such simple reproach”. Associating this issue, the article “Rejecting Ideal Victimhood” by Disha Wadekar focuses on expectations from society for a woman (sexual violence survivor) to behave a particular way in order to substantiate such victimhood. In addition to the above case, Tuka Ram v State of Maharashtra is also of grave importance to evaluate the rationale on which the concept of consent is established. Bizarre how the consent of a 16-year-old minor at all was a matter for discussion while simultaneously including unrequired arguments of the survivor’s “habituated history of sexual intercourse”. 

Following the discussions surrounding the thwart rape laws for women, I would like to shift my focus to the laws that ought to guard transwomen who suffer similar situations for which the judiciary or the legislature reprehensibly, hasn’t given us much to talk about either. Consent essentially is an integral part of assessing sexual offences, evidently so. Recalling the article by Jigyasa Mishra, I would like to state certain experiences of transgender women in police stations from the article – “I reported a rape, then a policeman raped me” “Harassed, Abused in Police Stations, Asked for Bribes”. Scrutinising through such horrifying experiences, the question haunts whether a person identified as a trans itself is an approval or consent according to rapists like the consent assumed in the case of Tukaram v State of Maharashtra due to the survivor’s history of sexual intercourse. Trans women are often taken advantage of due to their profession as sex workers. Like the judgement held in Budhadev Karmaskar v State of West Bengal that stated that “a sex worker who has to surrender her body to a man for money obviously is not leading a life of dignity”  & “ …..they will be able to come out of sex work and…selling their bodies. That will enable them to live a life of dignity”. Two things to extract from the judgement to support my claim – 1. Sex work not providing a life of dignity to the people who profess it as their profession. 2. Expectation rooting out of the heterosexual ideology to save the people (especially women) involved in sex work since it is looked down upon as a disgrace.

In pursuit of the gathered information, it is essential to verify whether the roots of animosity towards particular genders rise out of the embedded hostility and exasperation towards femininity entirely. Rape laws are significant only for women because they deserve sympathy however, only if they qualify as an “ideal victim”. Trans women are not subjected to or protected by rape laws since they ordinarily are habitual due to contempt towards their profession as sex workers. Quite ironic how the Trans Gender Persons (Protection of Rights) Act, 2019 came out of a judgement that moralised the need for enactment of Article 14 of the Indian Constitution.  

About the Author

Anvitha B V Gowda, a third-year BA LLB student at O. P. Jindal Global University, is interested in the intersectionality of gender, caste, sexuality and public policy. 

Image source: https://www.them.us/story/progress-pride-flag-intersex-inclusive-makeover