Left out by the law

O
n July 1, the criminal law that replaced the colonial-era Indian Penal Code (IPC) will mark its first anniversary of implementation. To gauge whether or not the law has had any impact yet, India Home Minister Amit Shah has been making the rounds across the country since early May and reviewing how it and two other criminal laws that are in support of it have performed. 

At least one group of people, however, is not very optimistic that the minister will get an accurate picture of what has been happening on the ground since the Bharatiya Nyaya Sanhita (BNS) came into effect: the transgender community. At the very least, members of the community say, there is little chance that they will show up in any data regarding the law, despite its profound effect on them. 

“We are not counted in FIR (First Information Report) data, prison records, or even crime victim statistics,” says Batool Ali, a transwoman from Delhi. “So, when the state adds or removes legal provisions under BNS, like changing how sexual violence or public order is addressed, we have no baseline to assess its impact on transgender persons. It leaves us vulnerable to interpretation, to abuse, and to silence.”

The community believes that one of the greatest failures surrounding the BNS is the sheer lack of data on transgender individuals in India. Points out Ali: “The last official population survey to include us was the 2011 Census, which was over a decade ago. And even then, it used the reductive term ‘third gender’ and severely undercounted us. That’s the only figure the government refers to when framing laws or allocating protections.” 

According to the 2011 census, there were 488,000 ‘other-gender’ in India, which at the time had a total population of 1.21 billion. Today, India has become the world’s most populated country, with an estimated 1.46 billion people. But no one so far has tried to determine just how big or small its transgender community currently is.

Ali echoes other trans people and rights advocates in saying that without disaggregated or updated data, there is no way to assess what impact the BNS is having on transgenders. 

“Within our transgender community, we have people from diverse backgrounds of caste and class structure,” Ali says. “Even with 2011 data, no data was collected on health, income, caste, education, or violence experienced by transgender persons. The result is a dangerous legal opacity. We’re expected to comply with laws that were neither designed for us nor based on our realities. If we’re not counted, we’re not protected. We’re only punished.”

Rape redefined

Enacted in December 2023, BNS and the two other criminal laws were intended to modernize India’s criminal justice system. But for many in the trans community, the new laws have brought nothing but fear and insecurity, as they believe these leave them even more vulnerable to abuse, especially sexual violence. 

The absence of an equivalent of the old IPC’s Section 377—which was part of India’s legal framework since the British colonial era—in the BNS has been one of the new law’s most controversial aspects. Section 377 criminalized “unnatural offenses,” which included consensual same-sex acts, as well as sex via anal penetration and bestiality. 

A landmark Supreme Court ruling in 2018 decriminalized same-sex relations between consenting adults. Yet for the trans community, Section 377’s significance was not just about consensual relationships; it also served as a legal basis to address sexual violence against men, trans people, and animals. Put another way, it made it easier for law enforcement to investigate and prosecute cases of sexual violence in which victims were not women.

For trans people in particular, Section 377 provided them with legal recourse in cases of sexual assault. In 2022, for instance, it was invoked during the arrest of suspects in a case in Aurangabad, and the next year in investigations into the rape of a trans woman in Bhiwandi, Maharashtra.

In a 2024 commentary on its website, however, the non-profit Citizens for Justice and Peace (CJP) pointed out that the BNS defines rape in a way that only a woman can be the victim and only a man the perpetrator, with the punishment ranging from a 10-year jail term to life imprisonment. It added that the law makes rape of men and transgenders a “non-offense.”

“Men will be able to find relief in Section 114 and 115 of the BNS that deals with grievous hurt. Under this section the term of imprisonment can extend up to seven years,” CJP said, underlining the disparity in punishment compared to that for rape. “The transgender community can find relief in the same sections of the BNS and under Section 18 of the Transgender Persons (Protection of Rights) Act, 2019.” 

It stipulates that “the term of imprisonment shall not be less than six months and can extend up to a whopping two years.”  

Activists rue the lack of mention in the BNS of transgender persons, thereby creating a legal vacuum. Without clear definitions and harsher penalties for sexual offenses against trans people, they argue that perpetrators will feel emboldened, knowing that there is little chance of facing significant consequences.

Men also at a disadvantage

In reality, says Delhi-based lawyer Rohin Bhatt, “the new law appears to discourage not only trans men but also cisgender women and male survivors from filing complaints.”

“Earlier, wives who couldn’t file an FIR against their husbands under Section 376 would often do so under Section 377,” he notes. “With 377 no longer in place and rape still narrowly defined, even cis women have lost one of the few legal routes they previously used in cases involving marital rape.”

Bhatt says, “(t)his reflects a broader concern raised under the revamped penal code, where sexual violence against trans people is reclassified as ‘grievous hurt’—a much less severe offense with lighter sentencing. As a result, such cases may no longer receive the same gravity in court, and there are concerns this change could discourage survivors from filing cases altogether, despite earlier efforts before the law changed.”

The lawyer adds that FIRs regarding sexual violence against trans people “are often filed under other (the new) IPC sections like ‘hurt’ or ‘criminal force’.” But aside from the punishments being “far less severe” than that for rape, Bhatt says that “many such offenses are non-cognizable or bailable, which makes it difficult to ensure the survivor’s safety or to keep the accused in custody during trial proceedings.”

He continues, “For trans men, the situation is even more complex. Once a trans man has legally transitioned and is recognized as male, current laws prevent them from filing a rape case, as Indian rape laws recognize only women as victims. Police officers often say that while ‘transgender’ is defined, the law only mentions women in the context of sexual assault. Even trans women face resistance when attempting to file cases.”

“Survivors who are also sex workers encounter additional barriers, making it even harder to advocate for justice on their behalf,” Bhatt says. “In such cases, bias and moral judgment further complicate access to legal recourse.”

Hostility from supposed protectors
In truth, even before BNS was enforced, trans people who were sexually violated were already reluctant to report to the police. Anecdotal evidence and stories from the trans community clearly show that sexual violence has always been a daily threat for many of them.

In 2015, the National Integrated Biological and Behavioural Surveillance (NIBBS), the National AIDS Control Organisation (NACO), and the Ministry of Health and Family Welfare reported that 31.5 percent of trans women had experienced their first sexual encounter with a man as non-consensual or forced.

Moreover, trans people usually have limited access to education and employment opportunities, pushing many of them into sex work as a means of survival. This, in turn, exposes them to further violence, harassment, and exploitation. 

According to the 2022 National Human Rights Commission of India study, “96 percent of transgender persons are forced to work in low-paying or demeaning jobs, such as begging, and sex work, where they are abused by customers and beaten up.” It added that “89 percent of transgender people interviewed by researchers indicated that even the most qualified among them are unable to find jobs, and that over 23 percent are forced to engage in sex work, which has significant health hazards.”

For trans people, though, going to the police often means inviting violence rather than finding justice. “The policing system has always been hostile to trans people. That’s why they’re afraid to file cases,” says Bhatt flatly.

Indeed, there have been reported instances of the police abusing, harassing, threatening, and sometimes even refusing to file cases for trans people, largely due to the stigma against the community. Comments Ali: “The police remain unsensitized to trans people’s issues when filing complaints, leading to continued harassment.” 

Last year, researchers from the Australia-based George Institute for Global Health interviewed 30 trans women in Kolkata, in West Bengal state. Many of the interviewees reported facing police harassment. The researchers wrote, “The trans women mentioned that the police did not treat them with respect and even harassed them. The police would not be willing to register complaints brought to them by the trans women and believed that trans women themselves were the ones at fault.” 

“The police don’t take our complaints seriously,” says Naaz Joshi, another trans activist. “They dismiss us, thinking we’re prostitutes. What does it matter if 377 is gone when the system still ignores us?” 

Asked about the current dearth of sexual-crime complaints on record from trans people, she remarks, “The absence of data doesn’t mean the absence of crime. It just means no one is documenting it. And when something isn’t officially recorded, it’s easier to pretend it never happened. But the reality is, these crimes are happening. Every day. And yet, there’s no legal framework that truly protects trans women or male survivors of sexual violence. The law barely acknowledges us.”

“I’ve personally tried to report multiple incidents,” says Joshi, herself an abuse survivor. “But I was dismissed or outright discouraged by the police. When complaints aren’t even accepted, there’s nothing on record. So on paper, there’s no crime. And if there’s no crime, there’s no justice. What is the point of having a judiciary if it doesn’t protect everyone?”

One catch is that so long as there is no clear documentation of how complaints by trans or male survivors are handled and no mandates or obligations for data collection or sensitivity training—which, according to trans people, is crucial to how they should be treated by uniformed men—the community will remain in the shadows, with or without 377.  

“We are seen as outliers, as anomalies or statistical minorities, not rights holders,” Ali says. “The legal limbo isn’t accidental at all. It’s a result of law and enforcement refusing to acknowledge the full range of gendered experience.” ◉

Gafira Qadir is a freelance journalist who primarily covers human rights, gender issues, education, and culture. Her writing has been featured in publications such as The Rest of the World, The Daily Beast, Maktoob, The Kashmir Walla, and others. She is a recipient of a Pulitzer Center Grant.