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#India – Crimes of exclusion in the new Law #LGBT

Siddharth Narrain : Fri Mar 29 2013, IE

It is anger on the streets that brought the neglected issue of sexual violence back to the forefront, energised a government-appointed committee to put together clear and well reasoned recommendations on law reform and forced the government to table the Criminal Law () Bill, 2013. It is public pressure and years of struggle by the women’s movement that is reflected in the more progressive parts of the bill, passed recently by both Houses of Parliament. Unfortunately, despite unanimity across large sections of society that the definition of cannot be restricted to an outdated understanding of as perpetrated by men on women, the version of the bill that was finally passed by Parliament retains this language. In this form, the law is a betrayal of the rights of millions of transgender persons, intersex persons and sexual minorities not born as women.

The current bill is contrary to the recommendations of the report, the most comprehensive document on rape law reform in recent times. The had heard a number of women’s rights and LGBT rights activists before framing their nuanced recommendation that the law on and rape be gender inclusive as far as the victim/survivor is concerned and gender specific as far as the perpetrator is concerned, except for specific offences like custodial rape, where traditional gendered power dynamics could be overturned. Based on this understanding, the committee suggested that the term “person” be used for the victim/survivor of rape and sexual assault, replacing the term “woman”, and the term “man” be retained for the perpetrator of sexual assault except in a few specified offences.

This simple change in language would have brought under the purview of the law the numerous cases of transgender persons and men who are raped and sexually assaulted by men. This move would have recognised decades of struggle by the transgender community in documenting these abuses, including the pioneering 2003 report of the People’s Union for Civil Liberties (PUCL), Karnataka, on human rights violations against the transgender community. The report documented horrific and widespread instances of sexual violence against the transgender community in Bangalore. It observed that the brutal stories of abuse and sexual violence documented in it were really narratives of cruelty, causing trauma to the entire community and negating the constitutional claim of equal citizenship and protection for all.

It is the claim to equality that the Justice Verma Committee relied on when it stated that all sexual identities, including transgender communities, are entitled to be totally protected. The committee observed that the Constitution enables the change of beliefs and greater understanding, and is an instrument to secure the rights of sexually despised minorities. This followed from the committee’s understanding that the problem of sexual violence is not just one of penology, but is related to the constitutional guarantee of the right to equality. It is this same claim of equality that the Delhi High Court recognised in 2009 when it decriminalised homosexuality. Keeping in mind the violence faced by LGBT persons by both the police and non-state actors, the court read the right to non-discrimination in Article 15 of the Constitution widely, holding that the purpose underlying the fundamental right against sex discrimination is to prevent behaviour that treats people differently for not being in conformity with the generalisations concerning “normal” and “natural” gender roles.

It is deeply disturbing, then, that the government, ignoring the Justice Verma Committee recommendations on this point, has deemed it fit to retain the gender specificity of the victim/survivor, thus excluding the lived experience of violence of all those who are not born women. The pioneering feminist Susan Brownmiller, in her groundbreaking work on sexual violence, Against Our Will, written in the early 1980s recognised that sexual assault could hardly be restricted to forced genital copulation, nor was it an exclusively male-on-female offence. More than 30 years later, we must ask this question of our lawmakers and those reluctant to equate the sexual violence experienced by women with that experienced by transgender persons, men and sexual minorities not born women: Who is to say that the sexual humiliation suffered by transgender persons and men, and by those intersex persons and sexual minorities not born women, is a lesser violation of the personal, inner space, a lesser injury to mind, spirit and sense of self?

 

The writer is a lawyer with the Alternative Law Forum,

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