Legal provision for Protection of transgender from sexual assault
The issue before the Supreme Court is that penal provisions that make a person liable for sexual crimes or assault or harassment does not include transgender as victims in that category. No provision has been made to protect transgenders against sex crimes.
Plea raised for penal laws to protect transgender from sexual assault
Plea has been raised before the Supreme Court of India that there are no penal provisions in cases of sexual assault against transgenders. It is stated that although transgender people are declared as ‘third gender’ yet no law has been enacted to protect them against sexual assault.
Neither IPC nor any other criminal law provides offences against transgender, transsexuals etc. Constitutional validity of certain clauses of Section 354A is also challenged that it excludes transgender victims of sexual harassment.
The apex court has asked the government to respond to the plea so as to ensure equal protection.
Laws supporting transgender
Articles 14, 15, 16, 19, 21 of the Indian Constitution provides equal treatment and rights against discrimination on grounds of race, caste, religion, community, gender etc. Article 21 protects rights to life and liberty and provides right to live with dignity to every person irrespective of their gender.
Transgender Persons (Protection of Rights) Act, 2019 prohibits any kind of discrimination based on sexual orientation and gender identity.
The Transgender Persons (Protection of Rights) Rules, 2020 protects rights of transgender people by granting them recognition and making provisions for their welfare. It provides for issuing identity certificate to transgender persons, provides for equal opportunities in employment, safe working environment and that there must not be any kind of discrimination in employment matters.
Whether penal provisions under IPC applies to transgender victims
Section 8 of IPC, provides definition of gender as- “the pronoun he and it’s derivative are used of any person whether male or female” Thus, it does not include, transgender persons.
Similarly Section 10 provides that, ‘man’ denotes a male human being of any age; ‘woman’ denotes a female human being of any age.
This makes it clear that the penal provisions under IPC do not protect the interest of transgender. The same thing applies to other legislation too.
Important judgments on transgender
Naz Foundation v. Government of NCT Delhi, known as Naz judgment declared Section 377 of IPC as unconstitutional stating it to be violative of Article 14, 15 and 16 of the Constitution.
KS Puttaswamy v. Union of India- Right to privacy was declared as fundamental right and integral part of Article 21 and it was extended to every individual irrespective of their gender and sex thus including LGBTQ also.
NALSA v. Union of India- The Supreme Court declared transgender individuals as ‘third gender’ under the Indian Constitution.
In Navtej Singh Johar v. Union of India, Section 377 of IPC, decriminalized consensual sexual acts if persons are above 18 years of age and competent to give their consent.
Arun Kumar v. Inspector General of Registration, Tamil Nadu- In this case, the Madras High Court held that under Hindu Marriage Act, bride includes trans women also.
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