Lack of inclusive legal language:

The laws are far from gender-neutral. Most laws in India are constructed using pronouns such as “him” or “he” to impart fundamental rights. Even though the pronouns for men are supposed to include all citizens (as opposed to they/them), it reinforces the patriarchal hegemony of men as the most important strata of the society. 90% of the Indian judiciary is composed of men (Law Ministry's Justice Department, 2019). Even though statistics about their other identity markers are not available for the public, it wouldn’t be an exaggeration to say that most of them are upper caste, privileged men (Bej, 2017). Of the 10% of women in the judiciary and parliaments, they are more often than not treated as placeholders to fulfil quotas. Identities diverting from the cisgendered heterosexual “norm” of the Indian judiciary are difficult to find. Thus, it’s unsurprising that the legal system in India is constructed to serve primarily cisgendered heterosexual men, taking into account their understanding of justice and crimes.

A lot of our understanding of the complexity of gender as a notion only exists in academia, while the society continues to be constructed around the binary genders (Mohan et al., 2013, pp. 18). The perpetuation of binary genders in the legal system only further reinforces these binaries in the minds of the citizens. Mohan recognizes that the identification of a crime/violence in the Indian legal system is heavily influenced by the patriarchal systems operating for male convenience. Women, gender and sexual minorities find it difficult to receive support and validation from the patriarchal legal system.

 

Gendered nature of legal provisions:

 

However, there have been certain progresses within the patriarchal judicial system. Feminist movements over the century have brought about a transformation of the legal system. However, most of the laws constructed to empower and ensure the safety of women fail to take into consideration individuals beyond the binary genders. 

The current laws for workplace harassment i.e. Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 is gendered as it interprets only ‘cisgendered and heterosexual women’ to be victims of workplace harassment. Considering the transphobic and homophobic canvas of Indian society, this not only reinforces the exclusion of gender minorities from the society, but leaves them vulnerable at the hands of the cisgender majority.

 

“Non-recognition of the Third Gender in the Indian legal framework has resulted in systematic denial of equal protection of law and widespread socio-economic discrimination in society at large” (Tewari et al., 2021). 

 

The LGBT workplace survey in 2016 brought into light that more than 40% individuals from the LGBTQIA+ community have been a victim of workplace harassment owing to their identity. Various Indian laws function within a gender binary, failing to extend the rights and benefits available to cisgender and heterosexual individuals to LGBTQ+people (Ghosh et al., 2020). Attempts to introduce laws to protect them have only led to further marginalization. Currently, a gender-specific definition of rape is in effect in India that recognizes crimes against “women” according to a binary understanding of the term “women”, disregarding the LGBTQIA+ entirely (Criminal Law (Amendment) Act 2013). 

 

“A gender-specific definition of the offence of rape worded in terms of men and women reflects a binary understanding of gender, creating doubts as to its sustainability in the minds of gender equality proponents.” (Pathak, 2016)

 

Faulty framework of Acts aimed at empowerment:

 

The Indian parliament passed the Transgender Persons (Protection of Rights) Act, 2019 which includes all individuals whose gender does not conform with the gender assigned to them at birth. However, even though the first article in the Act talks about the right to self-determination of one’s identity, the subsequent article nullifies it as it categorizes the entire spectrum of gender non-confirming individuals into a single category of “third”  gender. To add to their plight, the process of getting certified is filled with loopholes, providing plenty of opportunity for them to face harassment and abuse. Even though the act penalizes discrimination of Transgender individuals at workplace, in the absence of a functional mechanism to certify and recognize them, these laws are more or less Sisyphean. Moreover, trans folks are also subjected to inequality in access to education, schools and vocational training. 

Many queer individuals in India have to bear the yoke of the binary legal system in the country. In the book ‘Towards gender inclusivity’ by Sunil Mohan, a case was highlighted in Tamil Nadu where a woman who identified as a lesbian  was forcibly married by her family, had escaped but was abducted. Despite an NGO trying to register her case with the police, the police refused to register it. This is the plight of many queer folks in the country. Even though after the preceding reformative verdicts, which was brought in to ensure that homosexual couples are able to manage their own affairs and live together, it has not transformed into social protection. They continue to be victims of rampant social discrimination in various sectors of their life such as tenancy, education and employment. Furthermore, they barely have any rights. 

A huge gap exists between the freedom and provisions that is available for them in a justice system designed to serve and protect the cisgender population.

 

Discrimination in imparting rights and provisions for gender-minorities:

 

People belonging to the LGBTQIA+ community cannot marry legally, they have no rights for adoption. Additionally, not only is the framework of criminal laws gendered but also the penalization discriminatory as under the “Sexual Abuse against Transgender” clause in the Transgender Bill, 2019, any offender would be punishable only up to 2 years, whereas for any person initiating the same offence against a cis-woman is punishable up to 7 years at minimum. Notwithstanding, the penalization for crimes against the queer community who have been exploited and harassed for almost a century is barely enough to deliver them justice.  

 

India has been independent for 75 years, but our legal system is not gender-inclusive. Moreover, 105 amendments later, we’re still in a position where almost 10% of our population lies in a state of disadvantage owing to their gender identity. 

 

The first step towards a more-inclusive legal system is an inclusive legal language. In order to make a term like marriage equal for all, it’s important to redefine terms such as “husband and wife” through a lens of inclusivity. Similarly, adoption, harassment and surrogacy laws must also be made gender-neutral. It is high-time that the legal system stop trivializing the predicament of the non-binary folks.