Internationally, most rape laws are based on the grave and possibly drastic assumption that only women can be raped. The rape law is moulded in a woman-centric way, rather than a victim-centric way. The most striking consequence of this was seen lately in California, where a man faced the reduced sentence of rape to sexual assault, merely because of the inadequacy of the Californian law in recognizing that rape could occur beyond the traditional definition of sexual intercourse as well. This is problematic, as sexual crimes beyond the so-called ‘traditional’ and heteronormative spectrum are rampant today, and the absence of a legal framework to address them leaves their victims helpless.
One segment of these victims without redress is the transgender community. Already ostracized from society and facing rampant discrimination in countries all over the world, when members of this community face rape, they also face a law which assumes their absence from society. In a joint statement issued by various UN Agencies Ending violence and discrimination against lesbian, gay, bisexual, transgender and intersex people- A Programmatic Overview, emphasis was laid on the presence of laws in countries which target and accentuate the discrimination faced by the transgender community. Further, the Salzburg Global Seminar on LGBT inclusion also specified the need for more encompassing laws and policy architectures for tackling discrimination. The Human Rights Watch in its 2018 Report has also pointed out the terrible state of discrimination against sexual minorities. Countries such as Egypt, Indonesia and Iran still engage in acts of flogging and harassment against these communities.
The rape laws of several countries are deficient because of their lack of inclusion of sexual minorities. Egypt for instance, has a rape law which only recognizes the crime of rape when it occurs on the heterosexual spectrum. The same is the case in Jamaica as well. Similarly in India, there is no explicit recognition of transgender rape, the section pertaining to rape in the Indian Penal Code is again based on heteronormativity. Further, as these countries also criminalize homosexuality (the struggle for the repeal of such law is ongoing in India), this makes it difficult for transgender rapes to get reported, as the police force is often non cooperative and unwilling to register such crimes. Even when laws are gender neutral, as is the case in South Africa, Australia and United Kingdom, rape always requires a form of penetration, which is why forced acts of oral sex, which are most commonly faced by transgender persons do not come under rape. The struggle for transgender people thus continues in police stations and hospitals where they frequently face harassment instead of support and rehabilitation. In Canada, a trans woman was not allowed to become a part of a Rape Relief Society on grounds of her gender change. This clearly displays the hostility that several countries still have towards including transgender women in the process of post rape counselling as well as acknowledging that their experiences are real.
It is of utmost necessity to move towards creating a more inclusive environment where laws not only acknowledge the occurrence of transgender rape but also create explicit provisions dealing with this heinous crime. Pakistan made an attempt in this direction recently with its Transgender Persons (Protection of Rights) Act. While this act fails in the sense that it still does not use the term ‘rape’ as such but it acknowledges and criminalizes any kind of sexual advances made towards any member of the transgender community. The Penal Code (Amendment) Sexual Offences Act, 2016 also advocates a widened definition for rape to protect the rights of not only female victims but also male and transgendered victims as well. It seeks to do so by widening the definition of sexual intercourse to include not only penetrative sexual intercourse but forced oral sex as well. This provision makes the amendment a far-sighted piece of legislation as it provides an avenue for transgender victims to seek justice in cases of rape. Moreover the new Anti-Rape Bill in Pakistan that remains pending in the National Assembly also recognises the existence and rights of the sexual minorities.
In addition to a gender neutral law, in Scotland, rape crisis centres acknowledge and assist trans rape survivors to a great extent. The Ministry of Health and Family Welfare in India has also issued guidelines recognizing that transgender rapes do occur, and must be dealt with sensitively, requiring proper treatment by medical officials as well as legal practitioners. However, these guidelines are not binding and are merely facilitative and procedural in their nature.
The Universal Declaration of Human Rights affirms the necessity of creating an international order which helps in realizing the rights and freedoms of persons under Article 28. These rights include protection of life and dignity of persons. The current state of rape laws and their exclusionary character with respect to transgender community clearly shows to what extent these laws are lopsided meaning that the existence of an entire community is conveniently disregarded. It shows that even till today there are very few countries that have even recognised the basic rights of the transgender community and even fewer among them who consider transgender rape to be an offence. This is something which strikes at the very dignity of the community.
It is therefore necessary for countries to understand that sexual violence is not limited solely to the heteronormative sphere. Further, this blatant disregard of human rights must be remedied. It is crucial for countries to develop both provisions and procedure which is trans-inclusive. It is only when the basic bodily integrity of this community finds recognition and redress within the legal systems of the world that justice shall be done to their presence. This shall give them the space and the courage to express themselves and advance themselves further. Such an effort must be given international priority as such systematised discrimination of a relevant community must be eliminated at the earliest.
Samidha Mathur is a third year undergraduate student of law at Gujarat National Law University, India. She is the founding member of the GNLU Gender and Sexuality Forum, devoted towards creating a safe space on campus for the LGBTQ+ Community. She is also engaged in interactions with the local transgender community through NGOs. She has a keen interest in the field of human rights, gender justice and environmental law.
Alolika Chakraborty is a second year student at Gujarat National Law University. She is a member of the GNLU Centre of Law and Society and has conducted know your rights program in schools. She strongly believes in the equality of all individuals in a society and advocates for equal rights to the trans community in all spheres of life.