According to an American journalist, Gloria Steinem, “A gender-equal society would be one where the word ‘gender’ does not exist: where everyone can be themselves”[1]. However, every society has been duly engraved with deep rooted beliefs and traditional gender roles which has greatly contributed to classification in the society. Where a gender is considered more vulnerable unlike others and as a consequence to uplift the former section, certain reliefs are granted to them either in criminal law or by a separate distinct legislature. However, it has been observed that all section might also be subject to similar offences and hence it needs due protection, males and members of LGBTQ Community would belong to this section, who has been suffering due to Female-centric Laws. Thus, robust efforts is required to contribute towards the framing of “GENER NEUTRAL Laws”, to grant every section of society, equal protection and opportunities and without discriminating them, under the garb of Affirmative Action of our Indian Constitution, which need to be altered as per the need and aspirations of evolving society.
WHAT IS EQUALITY
Equality, Liberty and fraternity are the principles erupted by French revolution. It is the fundamental principle that connotes to fairness and equality. It focusses on the Equal right, opportunities and treatment without any discrimination on factors like, race, gender, caste etc. Indian being known for its diversity has been vividly surrounded by inexplicable customs and belief, that has not only promoted the discrimination but also secluded the underprivileged class from the society. The framers of constitution in order to safeguard the weaker section incorporated equality as fundamental right under Part-III of constitution. Article 14 of the Constitution of India states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India “, Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place o birth, Article 16 ensures equality of opportunity in matters of public employment[2]. As in the case of Indra Sawhney v. Union of India (1992), Justice Jeevan Reddy stated, “Equality in fact or substantive equality is the goal of our Constitution. To treat unequals as equals or to treat equals as unequals will be violative of the principle of equality enshrined in Articles 14 and 16.[3]” Further to provide protection to weaker section of society, certain gender specific Acts and laws are passed to ensure substantive equality, where it seeks to address underlying inequalities by considering and accounting for these differences to ensure equitable outcomes, when individuals have different starting points or face systemic disadvantages. As in case of State of Kerala v. N.M. Thomas (1976) Justice Krishna Iyer observed, “The guarantee of equality before law or the equal protection of the laws must mean that among equals the law should be equal and should be equally administered, and that like should be treated alike.[4]“
GENDER NEUTRALITY
Gender Neutrality is the latest term frequently seen in debates and criticism of Gender Specific Laws of the society. Although, one could perceive them as discriminating in nature, however they are valid under the garb of Protective discrimination also known as Affirmative Action. This led to various provision in law which confined themselves to particular section of society. However, with the changing societal norms and evading gender disparities, there’s a demand for establishing a Gender-neutral laws the country, gender neutrality refers to laws, policies, or practices that do not discriminate based on gender and treat individuals equally regardless of their gender identity or expression. This principle aims to ensure that laws and regulations are impartial and do not Favor or disadvantage individuals base on their gender. These laws prohibit discrimination on the basis of gender, ensuring that individuals are treated equally in employment, education, housing, healthcare, and other areas regardless of their gender identity or expression and to gain utopian society. Before, comprehending the very concept of gender neutrality, it is pertinent to highlight the terms like Sex and Gender. Sex refers to the biological characteristics that define individuals as male, female, or intersex. These biological characteristics are typically based on reproductive anatomy and physiology, including chromosomes, hormones, and secondary sexual characteristics. In most cases, individuals are categorized as male or female based on their genitalia at birth however Gender refers to the social, cultural, and psychological attributes, roles, behaviours, and expectations associated with being male, female, or non-binary Gender identity is an individual’s deeply felt sense of being male, female, or something other than or in between those categories, which might align to the gender that was assigned at his birthThus, it could be emphasised here that gender is lucid term and confining it with premises to gender specific laws would be detriment to the legal system all together. The more plausible approach would be to ponder upon laws that is free from any specification of genders in the society.
GENDER EQUALITY AND GENDER NEUTRALITY
At single glance, Equality is the fundamental right of our constitution, enshrined as an essential right of mankind to be treated equally as in the society, one distinct form of it is Gender Equality which means that individuals of all genders have the same rights, responsibilities, and opportunities in every aspect of life. However, due to prevailing situation and miserable condition of women, it is quintessential to uplift the specific gender to make them par with their counterparts. Thus, incorporating substantial Equality in forms of certain rights and gender specific law in Indian Penal Code. These criminal offences providing protection, one of the contentions that flows towards need of Gender Specific Laws. Gender neutrality is important because it removes the emphasis on gender altogether, fostering an environment where all individuals are treated equally regardless of gender. This approach helps eliminate biases and stereotypes associated with gender roles. By focusing on neutrality, we can create inclusive systems and policies that benefit everyone, promoting true equality.
SIGNIFICANCE OF GENDER-NEUTRAL PROVISION IN INDIA
The Gender-Neutral laws is seen as a wheel of evolution to the legal system, Gender neutrality ensures that non-binary, genderqueer, and other gender identities are included, not just men and women. This is important because traditional gender equality often focuses on the binary understanding of gender, potentially leaving out those who do not fit into these categories. It would make our society free from the shackles of Gender biases and stereotypes. Therefore, gender neutrality can be seen as an evolution of the concept of gender equality, striving for a society where everyone is treated as an individual, free from gender constraints. By incorporation of gender neutrality creates an inclusive environment where individuals of all gender identities and sexual orientations feel accepted and respected. It would acknowledge the members of LGBTQ communities and not discriminate and consider them as different section of society. These would have impact on Gender specific laws like Rape which always consider women as the only victim of crime and men to be the sole perpetrator, however it has been estimated 23.4% of women and 10.5% of male reported to be raped[5], though number is not much comparable to women but couldn’t be ignored altogether. Similarly in the same row members of LGBTQ community face brutal atrocities like corrective Rape which is a heinous and violent act in which individuals, often LGBTQ+ people, are raped with the intention of “correcting” their sexual orientation or gender identity. homicide, gay bashing refers to acts of verbal or physical abuse, harassment, or violence directed towards individuals who are perceived to be gay, lesbian, or otherwise part of the LGBTQ+ community. These offences need to be overlooked from the perspective of human rather than specific connotation to women. This need to be formulated only after due diligence of law makers.
MEASURES TOWARDS GENDER NEUTRAL LAWS
Even with the slow pace there has been rapid development to switch to Gender Neutral Laws. 172nd Law Commission Report, recommended for the inclusion of Gender Neutral Laws for sexual offence and also deletion of Section 377 from Indian Penal Code. This leading to propose The Criminal Laws (Amendment) Bill, 2012, aiming to incorporate Gender neutral provisions in criminal laws, however failed to implement due to contemporary Delhi Gang – Rape incident. Nevertheless, the bill promulgated as Criminal Laws (amendment), Ordinance 2013. This issue again escalated by Justice Verma Committee, whose report underlined the need for India to recognise various sexual orientation based on their report, The President promulgated Criminal Laws (amendment), Ordinance 2013 by exercising the power under article 123, making the first attempt of the legislature to incorporate sexual offences as gender neutral. However, it was implemented for only 58 days before being replaced by Criminal Law (amendment)act, 2013. Thus, here it could be implied that minute efforts have been undertaken so far, with no satisfying results[6]. However, judiciary being the wheel of evolution for the society has contributed in recognising Gender Neutral laws as in case of Smt. Sudesh Jhaku v. K.C.J (1996) [7]where it was highlighted a need for protection of male rape victim..Also in the recent case of A(Mother of X ) vs. State of Maharashtra(2024), also highlighted the need for the Gender Neutral Laws and demanded to use the term” Pregnant Person” instead of “Pregnant women”
CHALLENGES TO IMPLEMENT GENDER NEUTRAL LAWS
The Gender-Neutral laws are the major concern of every dynamic society however its implementation is the big challenge, where these impediments primarily stemming from deeply ingrained societal norms, cultural beliefs and systemic biases.
- Deeply Rooted Patriarchy – The Indian society is a traditional society following an old norm of patriarchy with gender roles firmly rooted. This is the major cause of resistance that fumble to make any laws against the well perceived structure of society, leading to promote more gender specific laws.
- Existing Gender specific laws: From offences against Rape to gender specific laws related to marriage , family, sexual violence and domestic issues is argued to procure protection to rights of women and any interference would be an attempt to disrupt the peaceful living of women in the society.
- Discourage Substantial Equality- The gender-neutral laws would harm the concept of substantial equality, where certain section is given more privileges, in order to inculcate and make them stand together, based on Equal to be treated equally and unequal would not be treated equally as, this neutrality wouldn’t grant any more privileges to anyone. As in the case of M.R Balaji v. State of Mysore, where it promoted protection to weaker sections of society [8].
- Male perpetrators: It is considered that women are the only victim of offences and male are the only perpetrators, in spite of cases of sexual violence against male , where it is considered that women belong to venerable class and it would be essential to protect them with specific gender provisions[9]. Thus, any gender-neutral law would be detrimental to the safety of women.
- Lack of awareness: The main obstacle to gender Neutral law is lack of awareness to the masses. The LGBTQ community is always considered distinct from the mainstream, as a consequence there is no education and awareness about the identity of such class. How would the section considered to be so distinct be included with the mainstream of the society, is the question that ingulf the legislatures mind.
- Insufficient Political Will: The political Will is the foremost for every policy to run without any hinderance in the society, as the Will goes with the will of people and as per the estimation, due to non-discouraging opinions regarding Gender Neutral laws, it would not be the priority for lawmakers who are influenced by traditional and conservative voter bases.
CONCLUSION
In conclusion, it could be said that society is dynamic and progressive in nature, which evolves by transition in personal beliefs and deep-rooted customs. The gender specific laws wouldn’t do justice to male and members of LGBTQ communities, as most of them would be devoid of laws and protection. The equality hence could be availed by Gender neutral laws, which are must for developing healthy society, otherwise it would be injustice for other sections. The legislatures should incorporate neutral terms like person, instead of any specific gender. Additionally, it also needs to pass more gender-neutral statues for protecting the rights and treating them all as human without any discrimination.
[1] American journalist, Gloria Steinem
[2] NEXT IAS Content Team et al. (2024) Right to equality (Article 14 to 18): Meaning, provisions, Significance & related concepts, NEXT IAS Blog. Available at: https://www.nextias.com/blog/right-to-equalitym
[3] Indra Sawhney etc.. ETC vs Union of India and others, etc.. etc. on 16 November, 1992. Available at: https://indiankanoon.org/doc/1363234/
[4] State of kerala & ANR vs N. M. Thomas & Ors on 19 September, 1975. Available at: https://indiankanoon.org/doc/1130169/
[5] Rape of males (2024) Wikipedia. Available at: https://en.wikipedia.org/wiki/Rape_of_males
[6] Rai, D. (2023) Gender neutral laws in India, iPleaders. Available at: https://blog.ipleaders.in/what-are-the-laws-on-gender-neutrality-in-india/
[7] Smt. Sudesh Jhaku vs K.C.J. and others on 23 May, 1996. Available at: https://indiankanoon.org/doc/1525708/
[8] M.R. Balaji v. State of Mysore 1962 – Legal Vidhiya, Legal Vidhiya –. Available at: https://legalvidhiya.com/m-r-balaji-v-state-of-mysore-1962/
[9] A Critique of gender neutrality in India (2021) International Journal of Law Management & Humanities. Available at: https://ijlmh.com/paper/a-critique-of-gender-neutrality-in-india/
Author: Vivechana Chauhan
Juris Centre 