Legal Gaps and Lack of Support: Why Queer Sexual Harassment Remains Overlooked

In 2022, Naaz Joshi, a transwoman and model, was stopped on a street in Delhi by three men on a bike asking her degrading questions like, “Are you a prostitute? Are you trying to lure men?” The harassment escalated into inappropriate touching, prompting Naaz to file a police complaint. However, at the police station, the police coaxed her not to file a report, citing that these incidents are common in the community. Eventually, she was forced to let it go, allowing the perpetrators to walk free without any consequences. Frustrated, Naaz confronted the police saying, “It’s because you let men walk free, that they get the confidence to harass or rape women.” To this, the police replied, “But how will they rape you — from the front or the back?”

What should have been a process to protect her, ended up further traumatising her. Unfortunately, Naaz isn’t alone in her experience.

Bodhisatya Ghosh, a queer lawyer working in North Bengal, has encountered countless instances of harassment against trans persons. “I work closely with hijra communities, many of whom are forced to beg traffic signals or highway booths. They have shared stories of being abducted, molested, and even raped — these incidents occur almost regularly. But few cases are reported officially or brought to the police,” he said.

Trans persons in India have fought long and hard for recognition and legal protections. The term ‘third gender’ was officially recognised in 2014. It wasn't until 2019, that the Transgender Persons (Protection of Rights) Act provided legal safeguards for their rights.

Sexual violence against trans and LGBTQ individuals is alarmingly common, yet largely missing from official data. Discussions about sexual harassment and rape are often framed within traditional gender binaries, focusing only on violence against women by men.

Legal disparities, lack of sensitisation, and a lack of support for the marginalised communities are the primary reasons why trans experiences of sexual violence seldom come to light.

HerZindagi spoke to members of the community and experts to gain deeper insights into the issue.

Sexual Harassment is Rampant But Rarely Reported

While speaking to us, Bodhisatya was dressed in formals – a white shirt and pants, as required by his profession. He quickly clarifies that this is just a professional uniform, different from his usual style. His Instagram profile @bodhiinasaree offers a glimpse into his true expressions.

“When I wear my clothes, apply makeup, and step outside, there has not been a single day where I haven’t felt discomfort. I’ve been called names, groped, stared at and even asked, “Why are you wearing such clothes?” by strangers,” he shared.

A 2018, the National Human Rights Commission of India report revealed that 96% of transgenders are denied employment, 92% are excluded from economic activities, and 18% experience physical abuse. However, there is no official data on the sexual harassment of queer individuals.

Read: Beyond Bias: The Queer Experience in Today’s Workplaces

Naaz says, “Being cat-called, touched inappropriately, and mocked, has become so common that we’ve almost normalised it.”

Legal Loopholes: Disparities in Punishment

Until 2019, there were no provisions for the safety of transpersons. The Transgender Persons (Protection of Rights) Act now addresses crimes against transpersons.

Section 18(d) of the Act specifies that whoever “harms, injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.”

However, the penalties for similar crimes against women are significantly harsher, with imprisonment sentences ranging up to seven years, or even life, in severe cases.

Advocate Ghosh highlighted, “Is the severity of rape any less when it happens to a trans person. The punishment should not differ based on the victim’s gender. Rape is rape, and it deserves equal justice.”

“Activists had opposed when the act was being introduced. While it was a significant step forward to include legal provisions after 2019, the current provisions are highly discriminatory,” he added.

Legal Loopholes: Removal of Section 377 Altogether in BNS

The Supreme Court partially decriminalised same-sex relations between consenting adults by striking down section 377, while maintaining provisions against non-consensual acts and those involving animals.

In 2024, the BNS (Bharatiya Nyaya Sanhita), replaced the Indian Penal Code (IPC), removing section 377. This section including gender-inclusive language, had been utilised by trans individuals and males to seek legal protection against sexual violence.

“Currently, there are almost no legal provisions for cases where a man is raped. The law may address it as assault, but specific provisions for cases of rape of men are unavailable,” said Bodhisatya.

The existing rape laws are defined within the gender binary, describing rape as involving a male perpetrator and a female victim.

Read: Section 377 Excluded in New Criminal Law Bill (BNS): Impact on Men, Transpersons and Animals

Lack of Sensitisation of Law Enforcement Personnel

Naaz firmly stated, “Police treat us poorly. In the two instances that I went to report at the police station, they almost sided with the perpetrators.”

“Crimes against trans persons are often underreported because law enforcement is not adequately sensitised towards the needs of the trans community,” said Zainab Patel, a transgender activist. “Officers lack sensitivity while handling reports of harassment, like rape and assault and may even end up further abusing the victim, by mocking them. This adds to the trauma experienced by the victim,” she added.

She also highlighted that the ‘victim-centric approach’ to these crimes – blaming the victim, for what happened, questioning her attire, or asking why they were out late etc – is the same for everyone, regardless of gender.

Naaz has often experienced police officials being completely unaware of the TPA. “They either think it’s still under debate or only have a vague understanding of it,” she said.

In addition to these issues, trans individuals face other challenges, such as shame, stigma, and fear of societal judgment.

Lack of Support for Marginalised Communities

Bodhisatya recounted an incident where he attempted to help a queer individual escape an abusive home. The entire neighbourhood attacked the woman who went to rescue them. He recalled, “They questioned her motives, by asking why she would help someone like this? He's a hijra, they said, why are you saving a hijra?.”

There’s been a growing discourse around how mass outrage is often selective, with less outcry and sensitivity for minority groups.

Bodhisatya highlighted how people only react strongly when it hits close to home. He pointed out that many people would not be interested as they don’t have queer people in their families, friends, or neighbourhood, making it irrelevant to them. The ingrained homophobia and transphobia further complicates the struggles faced by the queer folks.

Naaz pointed out that even at a micro level, cis-gender females often receive support from their families and neighbours. In contrast, “When similar issues arise for trans individuals, their families — who may have recently accepted their identities, often don’t support,” she added. They often say things like “aur bano trans, yeh toh hona hi tha,” as if their identities invited their misfortune,” she said. Naaz also highlighted that crimes against the trans community also get limited media attention.

Bodhisatya highlighted that the harassment is rooted in lack of recognition and respect and equality for queer individuals deserving equal empathy and respect.

“They have not seen trans people around them in day-to-day life. The idea of trans people is being seen as beggers at traffic signals. Till 2018, there was a criminalised perception for them. With no laws against homophobia in India and scant positive representation in media, where the trans or queer individuals are shown as normal members of society, harassment becomes a powerplay, where cis men, mostly, perceive members from the community to be inferior,” he explained.

Naaz added, “The attitude of perpetrators is steeped in disrespect. They almost have an attitude that says, ‘what could you possibly take from me? I still feel like our lives don’t matter in this country.”