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Unequally Equal



Introduction

Without fraternity, liberty and equality could not become a natural course of things. It would require a constable force to enforce them. -Dr. B.R. Ambedkar


Dr. B.R. Ambedkar in his terminal constitutional assembly speech advised to hold fast the value of fraternity without which equality and liberty will not be deeper. Our government by forming a law with shoddiest legal reasons possible has disintegrated our brotherhood by discriminating our fellow beings by treating them as mere bodies. The differentiation in penalties Offered for sexual crimes sends out a message of “exclusion” contrary to the basic tenet of The Constitution which is “inclusiveness”. Making offences against transgenders seem a lesser offence will strengthen the evils such as fear, distance, prejudice and intolerance that has been killing their courage to come out as their true selves. Ambedkar’s battle to eradicate social inequality and transgenders’ battle for attaining social equality will only end when human beings treat fellow human beings equally. The researchers aim for a better future that bequests our unequally equals the gift of equality.



Sexual Abuse


Sexual abuse, also referred to as molestation, is abusive sexual behaviour by one person upon another. It is often perpetrated using force or by taking advantage of another. When force is immediate, of short duration, or infrequent, it is called sexual assault.

The Indian Penal Code[1], has not defined the terms sexual abuse or sexual assault it has only listed out the offences that constitute abusive sexual behaviour which constitutes sexual abuse or sexual assault in sections 354, 354A to 354D. Sexual abuse is not necessarily be only physical, it can also be emotional or mental.


Sexual abuse affects every demographic and every community including transgender who has not been left out of any form of violence.



Transgender


The term “Transgender” is also an ‘Umbrella term’ that describes people whose gender identity or expression does not match with the sex they were assigned at birth.

Section 2(k) of The Transgender Persons (Protection of Rights) Act, 2019[2], defines transgender person as those whose gender does not correspond to the gender assigned to the person at birth and includes trans-men, trans-women, persons with sex variation, gender-queers, persons with socio-cultural identities such as kinnar, hijras, aravani and jogta.



Sexual Abuse And Transgenders


As a community transgender people encounter high risks of poverty, stigma and marginalization which put them at a greater risk of sexual assault and higher rates of hate-motivated violence which can often take the form of sexual assault and sexual abuse.

Transgender people are more exposed to sexual abuse due to the following reasons: · Society hyper-sexualization of transgender community · Stigmatization of transgender relationships · Internalized homophobia and shame



Transgender Act


The Indian Judiciary pronounced sensational, progressive judgments which portrayed gender equality in the matters such as decriminalizing Section 377 and adultery[3]. The transgender community who were expecting similar initiatives that will put them forward in a struggle for gender rights received a death blow when the Government passed the Transgender Persons Act on August 5, 2019.



Differences in penalties:

The Indian Penal Code punishes the perpetrator who sexually abuses the cis-gender[4] woman with simple or rigorous imprisonment or both for listed out offences[5] with a minimum term of one year, which may extend to a term of seven years or even to life imprisonment in certain cases.

Whereas Section 18(d) of The Transgender Act, 2019[6] states that ‘Whoever harms or injures or endangers the life, safety, health, or well-being, whether mental or physical, of transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic 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’. By deducing an analogy, from the sections above, it can be inferred that the penalty for sexual violence mentioned in the act is lower than for such crime against cis-gender and the act does not define specific physical sexual offence that transgender people face. The maximum imprisonment term specified for a sexual abuse of transgender person is dishearteningly more or less equal to the minimum imprisonment term for the offence of sexual abuse of a cis-gender person.

The silence for revision of the punishment given proves that our government treats the impact of sexual abuse on transgender person to the same in cis-gender person differently. The said difference in penalties offered really exhibit a lethargic approach to rape and sexual abuse. It is pathetic and sad how an already marginalized community is oppressed further by framing laws ignoring the voice of the community for which it is framed.


Shackling Equality

The Article 14[7] of Indian Constitution, reads as “Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”.

Article 14, in ensuring equal protection, imposes a positive obligation on the state “to ensure equal protection of laws by bringing in necessary social and economic changes”. Article 14 is a right enjoyed by ‘any person’ and so applies equally to men, women and transgender people. Hence, transgender people are entitled to equal legal protection of the law in all spheres, including employment, health care, education and civil rights. Discrimination on the grounds of sexual orientation and gender identity impairs equality before the law and equal protection of the law and violates Article 14 of Indian Constitution.

In the case of National Legal Services Authority v Union of India and Others[8], the Hon’ble Supreme Court, on the question of equality, held that Article 14 of the Constitution mandates, gender neutrally, that no person shall be denied equality before the law or equal protection of the law, facts indicate that the non-recognition of transgenders identity has caused transgender to perennially be denied equal protection of the law.

Even though there is no big data on the enormity of sexual violence of the community several studies have shown that transgender people are more likely to be sexually assaulted than heterosexual and non transgender people[9]. The impunity with which the problem is dealt at the moment is a forever disgrace to the human race and complete injustice to the framers of our constitution as this act through its discrimination clearly portrays our fellow beings as unequals and penalizes them as a community for truly being who they are.


Trivializing Sexual Abuse

Consensual sex is just sex and there is no such thing as nonconsensual sex which is nothing but rape. There only either sex or rape, rape is not just another type of sex, they are two separate acts, like it cannot be said swimming with breathing and swimming without breathing. It is either swimming or drowning.

Our society has trivialized sexual abuse and sexual assault as though it is concerned about sex and not violence. If a person hits you with a spade you would not call it gardening likewise sexual abuse is about violence, hurt, trauma hence it is a crime related to violence. Sexual abuse happens because of the abuser and has nothing to do with the victims, their dresses, their gender identity or anything concerned to them.

Women, children, men, transgenders any community can be raped/abused. The gravity of the offence should not be assessed based on victim’s gender identity in a society where even animals are not spared from rape. The sanction for the deplorable and barbaric crime should be assessed based on the relationship between abuser and the abuse and not based on the relationship between the genitals and the gender identity of the victim.


Conclusion

The Transgender Act, 2019 erases self-identity infantilizes and legitimizes sexual violence and rape of transgender people as “lesser offence” does moving a step ahead in perpetuating the historical injustices inflicted on them. It is high time we move across the debate of gender identity and trans-phobia to frame transgender law and construct laws for the heart of a fellow human being. It is high time; we revise the act and erase the discrimination embedded in it. Some people are born in their bodies, others have to fight for it. Instead of matching the breasts and balls of the transgenders. We must match our laws with the principles of humanity and prove that their bodily autonomy will not make them a misfit in the society. We owe them laws that portrays equality to heal the scars in their heart that was created by historical, social and economic injustices they faced and to lift them beyond vote bank politics and categories of fetish entertainment in film in our society. You do not have to be a transgender to be a supporter, you just have to be human. Equality is the best gift we can our fellow unequally equals.

[1] The Indian Penal Code, 1860, No.45, Acts of Parliament, 1860(India).

[2] The Transgenders Persons (Protection of Rights) Act, 2019, No.40, Acts of Parliament, 2019(India).

[3] Navtej Singh Johar v. Union of India A.I.R. 2018, S.C. 4321. Joseph Shine v. Union of India, S.C.C. Online. 2018 S.C. 1676.

[4] Cis-gender: A description for a person whose gender identity, gender expression and biological sex all align.

[5] Section 354 of The Indian Penal Code, 1860.

[6] TRANSGENDER ACT, supra note 1.

[7] INDIA CONST. art. 14.

[8] National Legal Services Authority v. Union of India, A.I.R. 2014 S.C. 1863(India).

[9] N.Ray, Lesbian, Gay, Bisexual and Transgender Youth: An Epidemic of Homelessness, N.Y TIMES,May 21,2006,at A1.


Author Details: Subitsha Pichaimuthu and Narain Kalicharan.R are students at Tamil Nadu Dr Ambedkar Law University.


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