The following story contains references to rape. Reader discretion is advised.
In April 2026, a man from Jhajjar Kotli, a village near Jammu, allegedly broke into the home of a trans woman in Jammu city and raped her on two separate occasions, according to the FIR filed by the woman. The police arrested the man on 10 August and charged him under Section 64 of the Bharatiya Nyaya Sanhita (BNS), which deals with rape. The BNS is India’s official criminal code, which replaced the colonial-era Indian Penal Code (IPC) in 2023.
When the accused applied for bail before the Fast Track Court in Jammu, his lawyers argued that the charge of rape, which specifically requires the victim to be a woman, cannot be invoked by a transgender woman.
The complainant, who was assigned male at birth, underwent gender affirmative surgery in 2023. Subsequently, she “updated her official identification under [the] transgender category and declared her identity and name as female,” the bail order noted.
The court observed that Indian law does not have a settled position on the question of whether a trans woman can be regarded as a woman under Section 64 of the BNS. It also noted that a separate law—the Transgender Persons (Protection of Rights) Act (Trans Act)—deals with sexual abuse against trans persons. In light of these facts, it granted the accused bail.
The contrast between the rape laws and the Trans Act provisions dealing with sexual abuse are sharp. Section 64 of the BNS treats rape as a non-bailable offense that can be punished with life imprisonment. The Trans Act does not explicitly mention rape. Section 18 of the Act offers broad protections against several different kinds of violence, including sexual abuse. However, the maximum punishment is two years’ imprisonment and a fine—and the accused can walk free on bail.
The court noted that the question of whether a trans woman can invoke the BNS rape laws “cannot be conclusively determined in bail proceedings” and that it “constitutes a substantial question of law requiring examination during trial.” However, by granting bail, it has indicated its position on the matter.
The court’s position is unlikely to change during trial, since lower courts must enforce the law as it exists rather than re-interpret them or settle broader constitutional disputes. As Jammu and Kashmir High Court Advocate Parvaiz Ahmad noted, the authority to resolve such legal contradictions rests solely with High Courts and the Supreme Court.
Raghavi Shukla, a trans woman and lawyer who practices at the Supreme Court, said that there have been “a lot of conflicting judgements” on this issue. As a counter-example to the Jammu case, she pointed to X vs State of Uttarakhand, a 2019 case in which the Uttarakhand High Court had relied on the NALSA judgement to allow a trans woman to invoke the rape laws under the IPC. In 2014, the Supreme Court had affirmed the right of citizens to self-identify their gender in the NALSA vs Union of India case.
However, Raghavi pointed out that the Uttarakhand case was an exception. In many other cases, courts have disregarded the NALSA principle and attempted to determine a trans woman’s gender identity based on biological characteristics. With the 2026 amendments to the Trans Act repealing the right to self-identification of gender, trans women are left with no constitutional safeguard against this judicial approach.
queerbeat has previously reported on how India’s current gender-specific rape laws force transgender victims of sexual violence to rely on a weaker law for protection. Before the BNS took effect in July 2024, trans victims of rape could file charges under Section 377 of the IPC. While the Supreme Court barred the use of Section 377 to prosecute sex acts between consenting adults in 2018, it remained a crucial tool for trans people against sexual violence and carried a punishment of imprisonment for life. The BNS scrapped Section 377 entirely, leaving no equivalent gender-neutral provision.
At his bail hearing, the accused’s lawyers argued that, as per Section 2(10), the BNS adopts its definition of a transgender person from Section 2(k) of the Trans Act. When both sections are read together, the legal identity of “transgender person” is distinct from “male” and “female,” they argued. In contrast, Section 2(35) of the BNS defines a woman strictly as a “female human being of any age.” Citing a 2024 Himachal Pradesh High Court ruling, the accused’s lawyers argued that because Section 64 is not gender-neutral and protects only female victims.
Ajaz Ahmad Bund, founder of Sonzal Welfare Trust, a Srinagar-based LGBTQ+ rights NGO, described the order “as a failure of the legal system to respect bodily autonomy.”
“Once a trans woman completes medical transition and aligns her gender identity, her status as a woman should be recognised fully in criminal jurisprudence without forcing her into a secondary legal tier,” they said.
This case is the latest example of how India’s penal code, which has a very gender-specific understanding of rape, leaves transgender persons unable to seek recourse for sexual violence. “Assigning a two-year maximum sentence for sexual violence against trans individuals while protecting cisgender women with up to life imprisonment institutionalises a hierarchy of personhood,” they said.
The court observed that the existence of a specific provision in the Trans Act, which punishes sexual abuse against transgender persons, suggests that legislators did not want Section 64 to be invoked in cases of rape against trans persons. It concurred with the accused’s lawyers that rape is not a gender-neutral offence.
Reacting to the judgement, Parvaiz pointed out that the Trans Act—a special legislation enacted purportedly for the welfare of the transgender community—is being used to exclude trans persons from criminal protections that are applicable to all citizens.
“Section 18(d) [of the Trans Act, which deals with sexual abuse] was enacted as a protective welfare safeguard, not an exclusionary ceiling to downgrade grave non-consensual sexual violence into a minor offence carrying merely two years,” he said.
Like Ajaz, Parvaiz too argued that once an individual has medically and legally transitioned, they must be accorded the rights due to their current legal gender—and that denying them these rights violates the constitutional rights to equality and dignity under Articles 14 and 21.