There was much celebration in the transgender community in 2014 when the Supreme Court recognized transpersons as the third gender. This fetched them rights to education, jobs, special medical treatment and generally cemented transpersons’ space in society. The SC had cited the misuse of Section 377 of the Indian Penal Code (IPC) (which criminalises “unnatural” sex with a man, woman or animal) by authorities and police as one of the primary reasons to for making the third gender recognition.
Now, this controversial section has come under the scanner again for being the loophole that led to four men accused of gang-raping a transwoman walking free. On June 22, a 19-year-old transwoman was allegedly gang-raped by four men in Pune. All four were arrested and had been on trial, till their shocking acquittal last week.
According to a report, the court could not convict the accused men under Section 377 as it only criminalises sex with a man, woman or animal. Since the survivor is a transperson, and thereby falling under none of the specified categories (of man/woman/animal), the court could not charge the accused under Section 377. For those wondering why the accused could not be charged under Section 375 of the IPC (that criminalises rape), we feel you. But the Section only crimininalises rape against a woman. There is no provision in either sections that recognises rape against a transperson as a criminal offence.
In an interview to Pune Mirror, the Pune gangrape survivor said she was worried about her livelihood. She elaborates, “I work at a beauty parlour and after this case I was looked at with a different gaze again. It took me some time to make people comfortable in the first place; running basic livelihood has become our prerogative than fighting the case. We have lost all hope.”
So the question remains: If transpersons have been given recognition as the third gender by the SC, how long till protection laws against sexual harassment and rape apply to them? Chapter VIII of the proposed Transgender Persons (Protection of Rights) Bill 2016 states that “harms or injures or endangers the life, safety, health, or well-being of a transgender person… including causing physical abuse, sexual 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 Bill was approved in 2016 to be introduced into the parliament. While it has a few loopholes, it is a step in the right direction of ensuring protection for transpersons from sexual assault.
Providing recognition to transgender persons does not just involve giving them official status as the third gender, but also making sure they enjoy equal rights as any other citizen, on the trifecta of state, street and home. We could start with implementing legal provisions necessary to keep their lives free from violence.