THE NEED OF GENDER NEUTRALITY IN DECONSTRUCTING PATRIARCHY

INTRODUCTION

“Our world would be gender equal when we need not think about if it really is”

Gender is just a socially constructed role which creates differentiation and mainly recognizes male and female. The third gender was legally recognized by Indian Legal System in 2014. Just the three broad gender categories along with various other gender identities fighting to be recognised and the question remains is whether our legal system is being fair enough to make gender neutral laws. The preamble of our constitution mentions the word EQUALITY which means rendering the same rights and advantages to everyone. 

Gender Biased Laws    

Rape is a sorry and rampant offence in India, with facts coming to light that almost three women are raped each hour. Mention of the term "rape" itself creates the picture of a female victim and a male culprit, giving credence to the fact that sexual assault is an offence done only by men on women. But have we ever thought of the reverse happening?

This deeply ingrained belief arises from a patriarchal society that prescribes strict gender roles—where men are perceived as powerful and aggressive, and women are perceived as weak and submissive. Rape is defined as an act of a man forcing himself upon a woman. This gendered response presupposes that perpetrators can only be men and victims can only be women, thereby creating a very large loophole for legal protection for male and trans victims of sexual assault.

As criminologist McMullen so rightly puts it, "Rapists are gender and age-blind. All human beings are potential victims of sexual violence. No person is immune from the human potential to rape or be raped." Nevertheless, debates regarding male and transgender sexual victimization are largely overlooked in academic and legal discourse and are usually greeted with derision.

Legal Resistance to Gender-Neutrality

Despite increasing discussions about gender neutrality in sexual violence legislation, legislative amendments remain biased in a female orientation. Criminal legislations related to sexual crimes—e.g., on stalking, sexual harassment, and assault—are framed with the presupposition that these crimes are only committed by men and that they do not acknowledge that men and transgender persons are also victims.

Even post-Nirbhaya, which awakened the nation's conscience, the Justice J.S. Verma Committee (2013), which was entrusted with suggesting amendments to rape laws, had suggested making some sexual crimes gender-neutral. That suggestion was not accepted, on the grounds that broadening the definition to include men would weaken the purpose of these protective laws.

The Flaw in Gender-Specific Provisions

There are certain provisions in Indian law that justify the idea of sexual violence occurring only to women, and by extension, keeping men and transgender individuals out of the legal pale.

Section 354 of IPC (Outraging the Modesty of a Woman) – This section presumes that modesty is only found in women, and one wonders why the same protection is not given to other genders.

Section 509 of IPC (Insulting the Modesty of a Woman) – Once again, this legislation presumes that only women have modesty, and there is no legal recourse for men or transgender people who are subjected to the same abuse.

In Tarakeshwar Sahu v. State of Bihar, the court specifically held that modesty is a quality reserved only for women, perpetuating gender discrimination in criminal laws. Such a judicial approach overlooks the reality that men and transgender people, too, can be victims of sexual assault and humiliation.

The Need for Reform

The Domestic Violence Act is another such gendered legislation. It takes a presumption that solely women are domestic abuse victims while overlooking the fact that men, too, may suffer from such violence in a relationship. It is a testimony to the inherent societal bias whereby male suffering goes unnoticed and hence is belittled. It is time for a change in paradigm in the legal and social response to sexual violence. Sexual abuse affects both genders, and laws should therefore be adjusted to acknowledge this fact. It is critical in ensuring justice for all victims of sexual violence to accept that women may also be abusers. Legal safeguards must be extended to men and transgender individuals, so that the law becomes equitably and justly applicable.

Conclusion

Justice cannot be gendered. The belief that sexual offenses can only be perpetrated by men and only women are victims is patriarchal and sexist. Gender-neutral rape laws do not mean withdrawing protection from women; they ensure that no victim, whether man or woman, is deprived of justice. It is time for India to shift away from the old gender stereotype and realize that sexual violence is not limited to anyone and everyone can be its victim, and the law should protect all people equally.

This article is authored by Snehil Anand. She was among the Top 40 performers in the Corporate Law Quiz Competition organized by Lets Learn Law.