India’s progress on rape law throws transgender people under the bus


On December 16th last year, six men gang raped a 23-year-old female student on a bus as it drove around New Delhi, India’s capital city. The woman died thirteen days later from her injuries in an emergency ward of a hospital in Singapore.

Both after the incident and after her death, Indian citizens took to the streets in uproar against sexual violence and the lack of government protections — some clashed with security forces.

Following the victim’s death, the government appointed former Chief Justice J.S. Verma to run a 30-day committee to recommend changes to India’s criminal law to better protect against sexual violence.

80,000 suggestions poured in from citizens, civil society, and experts. The committee released its report a day early. It was submitted to the government to take action. One observer called it “a manifesto for gender justice.”

It was, and in more ways than one. One of the major, if unnoticed, changes it made was to define the victims of sexual violence as people – gender neutral. But when the report’s recommendations became law, it regressed, and in the process threw transgender people under the bus.  

“The Criminal Law Amendment Act 2013 is a slap in the face for all those who believed that finally transgender persons too are equal citizens in India,” Arvind Narrain, a lawyer at Bangalore’s Alternative Law Forum, told 429Magazine.

Narrain, who was instrumental in the landmark sodomy law case, Naz v. Govt. of NCT of Delhi, wrote in a scathing op-ed: “the hope ignited by the Naz decision, and fueled by the Verma Committee recommendations has been extinguished.”

What happened?

The Verma Committee recommended that laws pertaining to sexual violence be broadened in many ways, including listing victims as gender-neutral “persons.” But when the government issued the new law, The Criminal Law (Amendment) Act, 2013, it changed the term back to “women” – ignoring the brutal history of sexual violence transgender people in India have suffered.

The Naz case, in which the Delhi High Court declared criminalizing consensual homosexual sex a violation of fundamental rights, pivoted on several harrowing stories of human rights violations against LGBT people in India. To date, such acts had been criminal offenses in India under Indian Penal Code section 377, a remnant of British colonial rule found in former colonies around the world.

“One of the key reasons for the reading down of Section 377 by the court was that it legitimizes these forms of brutal violence,” Narrain wrote in an op-ed in The Hindu last week.

One of the most harrowing accounts submitted in the Naz case was that of a hijra – a member of the transgender community – named Kokila who was brutally raped by ten men and then tortured by police.

Across South Asia, the term “hijra” refers to people who are born male, but identify as more feminine, and traditionally – though not always – undergo castration and live in communities with other hijras under a community leader. India recognizes hijras as well as other transgender people as a third gender category in some data sets and administrative forms.

Under these heralded revisions now endorsed by India’s parliament and president, however, Kokila’s case would not be considered rape.

“By denying trans people the most basic protection, the right to a life free of violence, the new law perpetuates and legitimizes sexual violence against them,” Narrain said.


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