Theme: Violence Based on Gender Identity and Sexual Orientation

Are Hijras transgender?

Yes, hijras were brought under the umbrella term of transgender and are recognized as “third gender” under the law. Transgender is generally described(( National Legal Services Authority vs. Union of India (UOI) and Ors.  (2014) 5 S.C.C. 438 (para 11).)) as an umbrella term for persons who do not conform to their biological sex and hijras fall under this category. Hijras typically claim to be part of “third gender”. Among Hijras, there are emasculated (castrated, nirvana) men, non-emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites).

What can I do if I see a transgender person being arrested or harassed on the road?

Many states have anti-begging laws by which police officers specifically target transgender persons and arrest them. In such situations if you see a transgender person being arrested/harassed on the road, you can take the following steps:

  • Intervene, and ask on what grounds the police is harassing/arresting the transgender person. 
  • Get help and support from lawyers NGOs, etc and inform them of the incident taking place.  Support the person being arrested by informing them of the rights they have under the law while being arrested. 

If you witness such an incident, you can file a complaint with the Police Complaints Authority of your State, which is empowered to investigate accusations of serious misconduct, like illegal arrest, rape, death in custody, etc. For example, you can file a complaint here for Delhi Police Complaints Authority. Many states have the option of emailing the complaint to a specified email address that can be found on the respective PCA’s website. 

What is Section 377 of Indian Penal Code?

Section 377 of the Indian Penal Code, 1860 was used to punish same sex intercourse between adults above the age of 18 and still punishes intercourse with animals, also known as bestiality. After 2018, Courts have held that same sex intercourse and same sex relationships are not a criminal act anymore. You cannot be arrested under this law for having consensual sexual intercourse or relationships. You can choose who you want to be with.

What does sexual orientation mean?

Sexual orientation refers  to a person’s sexual attraction and sexual relations with someone of their same gender or a different gender. This is known as ‘sexual orientation’. This is a right recognized under the law and it is not a crime to be sexually intimate with someone of the same gender.

As a queer person, who can I file a complaint against for rape or sexual violence under the law?

The law for rape and sexual violence, recognizes specific genders to be victims or offenders/harassers. See below to see what remedies are available to you, based on your gender. 

If you are woman/transwoman

You have a right to file a complaint under the laws on sexual violence in India but only against a man. If you are a transwoman and the police refuses to file the FIR stating that you are not a ‘woman’ under the law, then read here to see what steps you can take.  

If you are a man/transman

You cannot file an FIR under the laws on sexual violence in India, since men/transmen cannot be victims of sexual violence. Your only alternative is to file an FIR with the help of the laws which punish those who hurt or injure you. 

What do I do if someone harasses me or blackmails me on a dating site because I am an LGBTQ+ Person?

If you are being harassed or blackmailed on a dating site/platform, you can first block or report them, and approach the administrators of the specific site to report the abuse you are facing. If the administrators of the platform are not being responsive or the kind of harassment you are facing is severe and repetitive, then you can also file a complaint at the local police station or cyber cell only if you are a woman/transwoman. If you are a man/transman, you will be able to file an FIR with the laws which punish those who hurt or injure you. 

Which authority can I approach for help other than the police as an LGBTQ+ person?

If you do not want to approach the police or you have been turned away by the police, you can approach the following institutions:

  • National Human Rights Commission, which looks at matters concerning human rights violations, such as custody harassment, illegal detention, etc. As the NHRC is located in Delhi, you can approach the State Human Rights Commission situated in your state, and ask them for help. 
  • National Commission for Women, which is a national level government organisation that works in the protection of women from violence such as sexual crimes, domestic violence, etc.

What happens after filing the FIR as an LGBTQ+ Person?

Once you have reported the crime by filing an FIR, the officer in charge must send the details of the FIR to the Magistrate (Court), who will take note of the case without any unnecessary delay, and proceed with the investigation. This is a mandatory step that the police have to follow, as it allows the Magistrate to take control of the investigation, and if necessary give appropriate directions to the police. There may be situations where the police may conduct a preliminary enquiry before approaching the Magistrate. Such details will also have to be given to the Magistrate with the report.

When the police are done with their investigation and have found enough evidence to proceed with a criminal case, they will note down the details of their findings and they will file a charge sheet with the Magistrate. However, after the investigation if they have not found anything proving the commission of a crime, they will suggest the closing of the case by filing a closure report to the Magistrate.

What are the cases in law that I can use while approaching the police?

While approaching the police, you can primarily use two cases by the Supreme Court of India, which are:

  • NALSA Judgment (National Legal Services Authority v. Union of India): This judgment declared transgender people are the ‘third gender’, with fundamental rights, and the right to self-identification of their gender as male, female or third-gender. 

Navtej Singh Johar & Ors. v. Union of India: This judgment decriminalised all consensual sex among adults in private, including homosexual sexual intercourse. 

My family has locked me in the house because I told them I am gay. What do I do?

It is a crime to lock you and restrain you inside your house for any reason. No one can forcibly confine you against your will as it violates your liberty and freedom of movement. Under the law, this is known as wrongful confinement, and anyone found guilty of doing this can face jail time up to one year and a fine of Rs. 1000. 

Your first step should be to reach out to government helplines, or an NGO, that can help you file a complaint with the police. You can file a complaint with the help of  Section 340/342 of the Indian Penal Code, 1860.

Love and Relationships for LGBTQ+

Anyone above the age of 18, has the right to love and have consensual sexual relationships with anyone that they wish to(( Shafin Jahan v. Asokan K.M. and Ors. (2018)16 SCC 368; Navtej Singh Johar and Ors. v. Union of India (UOI) and Ors. (2018)10 SCC 1; National Legal Services Authority v. Union of India (UOI) and Ors.  (2014)5SCC438.)) irrespective of their gender. Previously, consensual sexual acts between adults of the same gender were punishable under the law with jail time and a fine.(( Section 377, Indian Penal Code, 1860.)) After 2018, such sexual acts are not punishable anymore under Indian law.(( Navtej Singh Johar and Ors. v. Union of India (UOI) and Ors. (2018)10 SCC 1.))

No one can harass you, hurt you, complain to the police and you cannot be sent to jail or face harassment or violence for:

Your sexual orientation

This means that you cannot face any violence being sexually attracted to a person of any gender, including that of the same gender or a transgender person. You can:

  • Be in a relationship and love a partner of any gender.
  • Have consensual sexual intercourse with a partner of any gender.
  • Move freely in any public space with your partner without any fear.

Your gender Identity

You also have a right to identify which gender you wish to be identified with. After 2014(( National Legal Services Authority v. Union of India (UOI) and Ors., (2014) 5 SCC 438.)), Courts have held that apart from “male”and “female”, you also have the right to identify and recognize yourself under the category of “third gender” (transgender).  As per the law, you don’t have to undergo Gender Affirmative Therapy to fall under the category of third gender. For instance, if you were born in a female body but feel that you actually identify with being a male then you can choose to identify with this gender.

To identify yourself under the 3 categories, you can change your name and get identification documents which denote the gender you want to be identified with.

You should file a complaint against anyone who harasses you as it is your right to live your life without any interference from the police, your parents etc. or any other person.

Facing Harassment and Violence

You may face harassment or violence on the basis of:

  • Your gender identity where you are being targeted specifically for identifying differently than the gender assigned to you at birth. For example, anti-beggary laws are used very commonly used by the police to arrest and harass transgender persons.
  • Your sexual orientation where you are being targeted for your choice of partners or sexual preference. For example, a lot of queer persons may not be comfortable with being public about their sexual orientation and they may blackmailed for money in exchange for keeping this a secret.

If you face targeted harassment or violence, you have a right to complain and get protection from anyone, including a family member, teacher, etc. who is harassing or hurting you. For immediate protection, you can call government helplines who will advise you on steps to take and assist you by sending the police to your location.

The kinds of violence that can happen to you may be in the form of:

If you decide to go to the police station to file an FIR (First Information Report), it is important to be confident and prepared with the law before you go, since there may be situations where you may get harassed by the police officers themselves. For example, the police officers may refuse to listen to you because you are a transgender person, so it is important to know the law under which you are filing the complaint.

Hurting or Injuring LGBTQ+ Persons 

If you are subjected to any violence, where you are injured or hurt, you have a right to complain and file an FIR with the police regardless of your gender or your sexual orientation. You can complain against anyone, irrespective of their gender. You can go to the police station to use these gender-neutral laws:

Hurting Your Body

Injuring You

If someone injures you or they know that their actions would injure you then it is a crime under the law.

You will have to file an FIR with the help of Section 321/350 of the Indian Penal Code, 1860.

Specific Injuries

If someone intentionally hurts you and it results in injuries which are given below, it is a crime under the law. Some of these specific injuries are:

  • Emasculation.
  • Depriving you permanently of your eyesight or hearing of either ear.
  • Any damage to your joints or your body structure.
  • Permanent dis-figuration of your head or face.
  • Any fractures or dislocations of your bones or your teeth.
  • Any action that results in endangering your life or causes severe bodily pain whereby you are unable to function.
  • Using acid to hurt you and which results in the injuries given above (You will have to file an FIR with the help of Section 326B of the Indian Penal Code, 1860)

If you face any of the specific injuries given above, you will have to file an FIR with the help of Section 320/322 of the Indian Penal Code, 1860.

Using Dangerous Weapons

It is a crime to use dangerous weapons on you or use common objects or animals which can be used in a dangerous manner such as:

Dangerous Weapons

  • Objects to stab or cut you like knives, scissors etc.
  • Objects to shoot you like guns etc.
  • Using any explosive substances like firecrackers etc.
  • Objects which release fire or any heated object or substance like a torch blower etc.
  • Any poison, corrosive substance or material which is dangerous to in

Common Objects that can Become Weapons

  • Any home based product such as phenyl which you are forced to consume.
  • An object like a cigarette lighter that is used to hurt you.
  • Using an animal to hurt you, like making dogs attack you etc.

If you have been hurt or injured or such objects have resulted in death, you will have to file an FIR with the help of Section 324/326 of the Indian Penal Code, 1860.

Threatening to Hurt You

It is a crime to threaten you by making any gestures or making preparations to hurt you. You will have to file an FIR with the help of Section 350/351 of the Indian Penal Code, 1860.

For example, if someone waves a knife at you and threatens to hurt you, then they are making gestures at you which might injure you or cause you fear.

For example, if someone waits for you to leave your office so that they can hit you with sticks, then they are making preparations to hurt you.

Blackmailing LGBTQ+ Persons

If anybody threatens to out your identity or sexual orientation and asks for money or anything of value to maintain their silence, they are committing a crime of extortion.(( Section 383, Indian Penal Code, 1908.)) Even the threat of injuring you in this process would amount to the crime of extortion. For example, if someone asks you for money in exchange for keeping your decision to change your gender identity a secret, then this is a crime of extortion for which you should complain to the police.

In such scenarios, you can get immediate help by calling helplines. You can complain with the police regardless of your sexual orientation or gender identity. You can file an FIR with the police with the help of Section 383 of the Indian Penal Code, 1860.

Blackmailing You for Favors

If anybody threatens to hurt you physically or your reputation in exchange for favors, then it is a crime of blackmail and it is legally recognized as criminal intimidation.(( Section 503, Indian Penal Code, 1908.)) These favors may be asked from you in exchange for not outing your identity or sexual orientation. Under the law, it will be criminal intimidation only if you are asked to do:

  • Illegal acts such as asking stealing a companies private data etc.
  • Acts which stop you from doing something that you were legally bound to do, like for example, you have filed a case against someone and you are being blackmailed in exchange for ending the case.

You will have to file an FIR with the help of Section 503 of the Indian Penal Code, 1860.

Locking Up LGBTQ+ Persons

If you are being obstructed from leaving a place or you are confined inside a particular area, for example, you are locked inside a room, then you are being detained illegally under the law.  This is known as wrongful confinement and anyone confining you may face jail time up to 1 year and/or a fine of Rs. 1000.

If your family forcibly confines you inside the house to prevent you from being with your partner, or out of anger for expressing your newly identified gender or sexual orientation, this is a crime under the law and no one can forcibly confine you against your will as it violates your liberty and freedom of movement.(( Shivani Bhat v State NCT of Delhi  223(2015)DLT391.))

Contact People to Help You

To get out of such a situation and to get immediate help, you can call:

  • Helplines who will send police officers or guide you on immediate steps to take.
  • NGOs who will be able to free you from such situations.
  • Close and trusted family and friends.

File a Complaint

You can approach the nearest police station regardless of your gender identity or sexual orientation and file an FIR against anyone who has locked you up or confined you wrongfully. You will have to file an FIR with the help of Section 340/342 of the Indian Penal Code, 1860.

Online Harassment and Violence against LGBTQ+ Persons

Online abuse happens on various platforms on the internet – social media, chat forums, etc. When faced with online abuse, your first step should be to see what the policy of the platform where the abuse is happening, and what steps the platform recommends for you to stop it.

You can complain to social media forums or platforms regardless of your gender or your sexual orientation and you can complain against anyone, but this policy differs across platforms so you should read the complaint policy of the platform you are facing abuse on.

You may face situations where someone is trying to out your sexual orientation or gender identity without your permission. You can take immediate action by blocking or reporting them. If you are being harassed with calls or texts on your phone, you can block them on your phone itself.

If the administrators of the platform are not being responsive or the kind of harassment you are facing is severe and repetitive, then you can also file a complaint at the local police station or cyber cell only if you are a woman/trans-woman. If you are a man/trans-man, you will be able to file an FIR with the laws which punish those who hurt or injure you.

You can complain if the following happens to you:

Account Takeover

  • If your account has been taken over without your permission or someone has unauthorized access to your account.
  • If someone has stolen your identity online by using your password or your digital signature etc.
  • If someone is causing trouble for you online if they are impersonating or pretending to be you or someone else.

Violation of Privacy

Blackmail

  • If someone is blackmailing you online for money or favors.

Abusive Threats and Language

If someone is threatening to hurt you by giving physical threats against you online.

Rape of LGBTQ+ Persons

When a man has sexual intercourse with you, without your consent, it is considered to be rape under the law.

Currently, under the law, only women or trans women can be victims of rape or sexual violence and can only file it against a man.

If you are a man/trans man who was forced to have sexual intercourse, you will not be able to file a complaint for rape or any other form of sexual violence. Instead, your alternative will be to file a complaint stating that you were hurt or injured.

Rape and Gang Rape

  • If you want to file a complaint against anyone who has committed the act of rape, you will have to file an FIR with the police with the help of Section 375/376 of the Indian Penal Code, 1860.
  • If the act of rape has been committed by a group of people, each of them will be punished for committing the crime of gang rape. You will have to file an FIR with the help of Section 376D of the Indian Penal Code, 1860.

Rape by a Person of Authority

If a man has some form of control over a woman because of his position or job, and uses this control to forces her have sex with him, it is the crime of rape under the law.  For example, if a male police officer rapes you while you are in custody, then you have a right to complain against the officer and file an FIR.

Some of the persons of authority include public servants or jail staff or on the management of the hospital, etc. You will have to file an FIR with the help of Section 376 of the Indian Penal Code, 1860.

It does not matter if you don’t know the details of the person who raped you. You should still file a complaint so that the police can carry out an investigation to prevent him from committing the same crime again. You can also file a complaint against a family member, teacher, etc. who has raped you. You can request someone else to file the FIR on your behalf also. If the police does not register your FIR, read this to understand the alternative steps you can take.

Sexual Violence against LGBTQ+ Persons

If you are facing any sexual violence or you know someone who has, you should take the following steps:

  • Call helplines for immediate protection.
  • Complain at the nearest police station.

Sexual Violence

If you have faced any form of sexual violence which may include, rape, inappropriate touching, stalking etc, you can file an FIR with the police. You can file a complaint against anyone including a family member, teacher, etc.

If you are woman/trans woman

You have a right to file a complaint under the laws on sexual violence in India but only against a man. If you are a trans woman and the police refuse to file the FIR stating that you are not a ‘woman’ under the law, then read here to see what steps you can take.

If you are a man/trans man

You cannot file an FIR under the laws on sexual violence in India, since men/transmen cannot be victims of sexual violence. Your only alternative is to file an FIR with the help of the laws which punish those who hurt or injure you.

Sexual Violence at the Workplace

If the sexual harassment policy in your office is gender-neutral, then you can file a complaint regardless of your gender. If you want to stop the sexual harassment through employer action (for example dismissal of the harasser) then you can file a complaint with the Internal Complaints Committee (ICC), which is a complaint mechanism available at all offices. You have the option of going to the police as well.

The law on sexual harassment at the workplace identifies only women as victims who can approach the ICC or the police to file an FIR. If this is the policy in your organization, then these are the options you have:

  • As a man or a transgender man, you can take help from NGOs and a lawyer who will be able to file an FIR with the laws which punish those who hurt or injure you.
  • As a transgender woman, you have the right to file an FIR under the laws on sexual violence.

Online Sexual Violence

If you are facing any sexual harassment online, then click here to understand more.

Who (LGBTQ+) can File a Complaint

If you are facing harassment and violence, some of the laws you can use while filing a complaint are based on your gender identity.(( It is the intrinsic sense of being a male, female, transgender or trans sexual person.)) Since there are only three recognized categories(( Navtej and NALSA)) under the law which are ‘male’, ‘female’ and ‘third gender’ (transgender persons), the laws that apply to you also depend on which category you fall under.

It will be helpful for you if you know what laws can help you while filing an FIR. You can take the help of lawyers and NGOs so that you do not face harassment by police officers.

The question of whether or not you can file a complaint under the law will be dependent on the type of violence you have faced:

Sexual Violence

Sexual Violence may be of various kinds like rape or sexual crimes such as inappropriate touching, stalking etc. As per the law, you can only file a complaint with the police if you are a woman. Even though trans women, regardless of whether they have had a gender affirming surgery or not, have a right(( NALSA 55,112, Anamika v. Union of India, WP (CRL) 2537/2018.)) to file an FIR, if you face any trouble while registering your FIR, it is better to take the help of a lawyer to prevent any harassment or violence by the police. Men or trans men cannot be victims of sexual violence under the law, so the alternative for you is to file an FIR with the laws on physical violence as explained below.

Physical Violence

If you have been injured or hurt or someone has locked you up or physically prevents you from carrying on your day-to-day activities, then you can file an FIR against your harasser if you are a man, woman or transgender person. 

Psychological Violence

If someone threatens to hurt you, blackmails you for favors or money then you can file an FIR against your harasser if you are a man, woman or transgender person.

Online Violence

You can complain against any form of online harassment and violence which may be sexual, psychological or computer related crimes such as hacking, impersonation etc.  if you are a man, woman or transgender person.

Complaining/Reporting Problems by LGBTQ+ Persons

You can file a complaint with any of these authorities/forums:

Police

Go to Police Station

You can file an FIR at any police station or the one nearest to you. A friend or relative can also file an FIR on your behalf. If you are a woman or a trans woman, your statement will be recorded by a female police officer.

Call 100

You can call on 100 to seek immediate help from the police. After describing your location, a police unit will be sent to you for further assistance.

National and State Commissions in India

These are forums you can approach if you face any difficulties or resistance from the police if they refuse to file your FIR:

National/State Human Rights Commission

The National Human Rights Commission (NHRC)(( Core Group on LGBTQ+ Issues: https://nhrc.nic.in/sites/default/files/Documents_coregroup_lgbt_29062018.pdf)) is a national level government body which specifically looks into human rights violations, such as illegal detention, harassment in jail, etc. As a LGBTQ+ person, you can also approach them if you require help, if the police are not being cooperative.

Since the NHRC is located in New Delhi, you can also approach the State Human Rights Commission (SHRC) in your state to get immediate help. You can complain to the NHRC or SHRC regardless of your gender or sexual orientation.

You can contact NHRC here and complain if you have faced any harassment or discrimination.

National/State Commission for Women

The National Commission for Women (NCW) is a national level government organization that works in the protection of women from violence such as sexual crimes, domestic violence, etc. The NCW will help you by:

  • Providing you and your harasser counseling or an opportunity to be heard so that the dispute is resolved and the incident is not repeated again.
  • Instituting an inquiry committee in serious cases which would make spot inquiries, examine the witnesses, collect evidence and submit a report to give you immediate relief and protection.

You can get in touch with them only if you are a woman or a trans woman by either calling the helpline number 1091, or sending an email to ncw@nic.in or filing an online complaint.

You can also approach the Women’s Commission in your state to get immediate help.

Online Crime Reporting

You can complain with the Cyber Cell or the police in your state against online crimes. Read here to understand in detail the options that you have to report and complain against online harassment and violence.

Filing an FIR by LGBTQ+ Persons

When you go to the police station to file a complaint, the details of the complaint will be written down in an FIR (First Information Report).

The FIR has to be filed by the police official and if you are a woman or trans woman, then for certain crimes, a woman police officer has to fill out the FIR.

Before filing the FIR, consult with a lawyer and see what all crimes you can file an FIR for as some crimes can only be reported by women or trans women and not men. If you face any difficulties while filing an FIR, read here to see what steps you can take.

Read here to understand what happens after you file the FIR.

Difficulties in filing the FIR by LGBTQ+ Persons

If the police officer refuses to file an FIR or harasses you because of your sexual orientation or gender identity, then you can take the steps below:

  • Write a written complaint to the Superintendent of Police (SP) in writing. The SP may conduct the investigation himself or order his subordinate police officers to carry it out.
  • Take the help of a lawyer while going to the police station. This is useful as lawyers will be able to advocate on your behalf and the possibility of harassment you may face from police officers will be less.
  • Go to another police station nearby to file the FIR. This is known as Zero FIR where an FIR can be filed at any police station and the police officers have to mandatory record the information provided, and then transfer it to the police station in whose area/jurisdiction the offense took place.
  • Request someone else to file the FIR on your behalf. You can give this person details of the violence/harassment that you have faced.
  • Approach the District/Judicial Magistrate directly to file a ‘private complaint’, but only after going to the police.

Approach other complaint forums like the National/State Human Rights Commission, National/State Women’s Commission who will not only assist you in approaching the police, but also look into the incident of violence/harassment themselves.

LGBTQ+ Persons Arrested By the Police

When police officers want to arrest you for any crime or suspicion of any crime, they may come to your location and arrest you. While arresting you, the details of the arrest, place of arrest, time of arrest etc will be written down in an Arrest Memo. They may:

Regardless of your gender or your sexual orientation, you have rights under the law while being arrested.

If you are a woman or a trans woman, then there are specific rights that you have while being arrested. For example, a lady constable has to be present when a woman is being arrested. Click here to understand what these rights are.