It was supposed to do away with colonial-era homophobia but an overhaul of India’s 160-year-old penal code has instead sparked fears that transgender men and women now run a new risk of rape with impunity.
The arcane change to a colonial-era document has filled Dua Fatema Begum with dread since its enactment this summer.
“I now feel like I can be raped any time, and there will be nothing I can do about it,” the 29-year-old beautician said.
“The absence of strict laws specifically addressing sexual abuse of trans people will give people a free hand to abuse us.”
Begum fled her small village in northeast India two years ago, hoping to escape family harassment over her identity.
She now fears a whole new set of dangers.
This summer, the administration of Prime Minister Narendra Modi replaced a legacy criminal justice system with a new code that removed legal safeguards to protect the trans community from sexual violence.
Without these checks, Begum is terrified she is more likely to become the victim of assault in her adopted home city of Delhi.
The area had the most rape cases of India’s metropolitan cities in 2022 – and Begum feels she is right in the firing line.
“I used to return to my rented place late after working at the beauty clinic,” Begum told the Thomson Reuters Foundation from her home.
“Now, I make sure to finish up early and get home before dark, constantly fearing for my safety.”
Modi’s new Indian Justice Code (BNS) completely eliminated the old Section 377, which had criminalised same-sex relations.
In 2018, the Supreme Court of India found that applying Section 377 to gay sex was unconstitutional.
However, the clause remained in the code as a legal protection against sexual violence, with gender inclusive language that included both trans and male victims.
The new penal code, which came into effect in July, instead restricts rape cases to a male perpetrator and female victim.
Activists say Section 377 was essential for the trans community, who often endure 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. There should be equal laws for us too, and we must be treated equally as other citizens,” said Begum.
SLOW TRANS PROGRESS
India has being making slow progress to improve the lives trans people for more than a decade, recognising the community as a “third gender” in 2014 and enacting the Transgender Persons (Protection of Rights) Act in 2019.
Under the law, multiple types of abuse against trans people is punishable by up to two years in prison, a significantly shorter time than for the same crime against non-trans women.
While there is limited data available on crimes against the trans community, Section 377 has been relied on to protect trans victims of rape, which carries a punishment of up to 10 years.
The clause was cited during an investigation into the rape of a trans woman in Bhiwandi, Maharashtra, in January last year, and during the arrest of three suspects in another incident against a trans woman in Maharashtra’s Aurangabad in 2022.
Under the revamped penal code, sexual violence against trans people would be categorised as “grievous hurt” instead, a less severe offence that carries a lighter punishment.
Naaz Joshi, a 47-year-old trans model from Delhi, says she has been sexually harassed many times, approached on her bus home from work by men who have touched her and proposed sex.
“Now that there is no law to address sexual violence of trans people, sexual predators can prey on us at any time,” Joshi said from her home in the capital.
“With no legal repercussions to fear, they are emboldened to act with impunity.”
POLICE PROTECTION? Activists say the trans community already faces steep hurdles being taken seriously by the police, who might mock them or refuse to register their complaints.
In 2020, the National Crime Records Bureau (NCRB) reported that 236 victims of all crimes identified as trans, accounting for 0.006% of the total number of victims.
The NCRB recorded no cases of rape involving trans victims.
Jeet, founder of ‘Yes, We Exist’, an LGBTQ+ advocacy group, said the loss of Section 377 will further discourage trans victims of crime from coming forward.
“Despite the challenges the trans community faces in having their cases registered, Section 377 was a vital legal protection for seeking justice,” Jeet said.
“Authorities are now limited to applying less severe charges, such as causing harm or hurt, which fails to address the full seriousness of these offences.”
A petition launched online has gathered more than 47,000 signatures urging the Home Ministry to address the gap in protection and advocate for stronger measures against sexual violence.
On August 28, the Delhi High Court instructed the government to address the removed safeguards 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 has said the change to India’s justice system would in fact make the country more equal.
“About 77 years after independence, our criminal justice system is becoming completely indigenous and will run on Indian ethos,” Shah told reporters in July.
“Instead of punishment, there will now be justice.”
Meanwhile Begum, who wants the protections reinstated as quickly as possible, is living on hope – and watching her back.
“I am hopeful that if we raise our voices and speak up against the lack of protection for us in the new laws, it will pave the way for necessary reforms,” Begum said.
