Transsexuals in India fear increase in sexual violence under Bharatiya Nyaya Sanhita and repeal of legal protections

Intended to eradicate colonial-era homophobia, the overhaul of India's 160-year-old penal code has instead raised fears that transgender men and women now face a new threat of rape with impunity. The mysterious change to a colonial-era document has filled Dua Fatema Begum with dread since it was passed this summer.

“I now feel like I can be raped at any time and I can't do anything about it,” said the 29-year-old beautician. “The lack of strict laws specifically targeting the sexual abuse of transgender people gives people free rein to abuse us.”

Two years ago, Begum fled her small village in northeast India to escape her family's harassment over her identity. Now she fears a whole new set of dangers.

This summer, Prime Minister Narendra Modi's government replaced the old criminal justice system with a new law that removed legal safeguards protecting the trans community from sexual violence. Without these controls, Begum is very afraid that she will be more likely to be a victim of assault in her adopted home of Delhi. The area had the most rape cases in India's metropolises in 2022 – and Begum feels like she is directly in the firing line.

“I used to always return to my rented apartment late after work at the beauty clinic,” Begum told Context from home. “Now I make sure to finish early and get home before dark, and I constantly fear for my safety.”

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Modi's new Bharatiya Nyaya Sanhita (Indian Penal Code) has completely abolished the old Section 377 (of the Indian Penal Code), which criminalised same-sex relations. In 2018, India's Supreme Court ruled that the application of Section 377 to gay sex was unconstitutional. However, the section remained on the code as a legal safeguard against sexual violence, with gender-sensitive wording that included both transgender and male victims.

The new penal code, which came into force in July, instead limits rape cases to a male perpetrator and a female victim. Activists say Article 377 is vital for the trans community, which often suffers social stigma, discrimination and abandonment by family. Their exclusion from basic services – be it work, housing or healthcare – only increases the risk of violence and assault.

“India is known as the mother of democracy. The same laws should apply to us too and we must be treated equally with other citizens,” Begum said.

Slow trans progress

India has been making slow progress in improving the lives of transgender people for more than a decade. In 2014, the community was recognized as a “third gender” and in 2019, the Transgender Rights Protection Act was enacted. Under this law, various types of abuse against transgender people can be punished with up to two years in prison, a much shorter time than for the same crime against non-transgender women.

Although limited data is available on crimes against the trans community, Section 377 has been invoked to protect trans victims of rape, which is punishable by up to 10 years in prison. The clause was cited in an investigation into the rape of a trans woman in Bhiwandi, Maharashtra, in January last year and in the arrest of three suspects in another incident against a trans woman in Aurangabad, Maharashtra, in 2022. Under the revised Penal Code, sexual violence against trans people would instead be classified as “grievous assault,” a less serious offence that carries a lighter punishment.

Naaz Joshi, a 47-year-old trans model from Delhi, says she has often been sexually harassed. On her way home from work, she has been approached on the bus by men who have touched her and offered her sex. “Now that there is no law dealing with sexual violence against transgender people, sexual predators can attack us at any time,” says Joshi from her home in the capital. “Since they have no fear of legal consequences, they are emboldened to act with impunity.”

Police protection?

Activists say the trans community already faces major hurdles to overcome if it wants to be taken seriously by the police. The police may mock them or refuse to register their complaints. In 2020, the National Crime Records Bureau (NCRB) reported that 236 victims of all crimes were identified as transgender, which is 0.006 percent of the total number of victims. The NCRB recorded no cases of rape involving transgender victims.

Jeet, co-founder of Yes, We Exist, an LGBTQ+ advocacy group, said the loss of Section 377 would further deter trans victims of crime from coming forward. “Despite the challenges the trans community faces in registering their cases, Section 377 has been an important legal safeguard in seeking justice,” Jeet said. “Authorities are now limited to bringing less serious charges, such as assault or hurt, which does not do justice to the full gravity of these crimes.”

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A petition launched online has garnered more than 47,000 signatures, urging the Home Ministry to close the protection gap and push for stronger measures against sexual violence. On August 28, the Delhi High Court directed the government to fix the repealed protection measures against sexual violence, preferably within six months. The Ministry of Law and Justice did not respond to requests for comment.

But Home Minister Amit Shah said the changes in India's justice system would actually make the country fairer. “Some 77 years after independence, our criminal justice system will be completely indigenous and will be based on Indian ethos,” Shah told reporters in July. “Instead of punishment, there will now be justice.”

Meanwhile, Begum, who wants to restore protections as soon as possible, is living on hope – and looking to the future. “I am confident that if we raise our voices and speak out against the lack of protections in the new laws, we can pave the way for necessary reforms,” ​​Begum said.

This article first appeared on Context, supported by the Thomson Reuters Foundation.