By At seventeen, a transgender survivor of penetrative sexual assault is protected by a law that covers every child. At eighteen, the same person may find that India's principal adult rape provision has no clear place for them. The violence has not changed, but the legal category has.
That gap tells us something about how India rewrote its criminal law. The Bharatiya Nyaya Sanhita, 2023 (BNS) names transgender people in its very first definitions. Its rape provision still assumes a male perpetrator and a woman victim. And when Parliament replaced the Indian Penal Code (IPC), it let go of what Navtej Johar had left of Section 377 IPC, the part that punished non-consensual sex, without enacting any equivalent for adults who fall outside the rape provision.
This does not mean transgender people have no protection at all. But whether an assault is treated as a serious sexual offence can depend on whether they fit a category the law has left unclear. Survivors should not have to argue about who they are before the law will recognise what was done to them.
What Section 63 Says, and Whom It Leaves Out
Section 63 BNS opens with the words: "A man is said to commit 'rape' if he…". It then lists specified acts involving a woman. Section 2(35) defines "woman" as a female human being of any age. Section 2(10) extends the pronoun "he" and its derivatives to male, female and transgender persons, but that drafting rule does not turn "woman" in Section 63 into "person".
An adult trans man, or a non-binary adult who does not identify as a woman, has no express route into this definition as a victim. One could argue for coverage by treating a trans man as a woman because of his anatomy or the sex assigned to him at birth. But that argument protects him only by refusing to recognise him as a man.
Trans Women and the Meaning of "Woman"
There is a strong constitutional argument that a woman does not stop being a woman merely because she is transgender. In National Legal Services Authorities v. Union of India (2014), the Supreme Court upheld transgender persons' right to decide their self-identified gender. The Madras High Court built on that reasoning in Arunkumar v. Inspector General of Registration (2019), holding that "bride" under Section 5 of the Hindu Marriage Act includes a trans woman. The Andhra Pradesh High Court took a similar view in Viswanathan Krishna Murthy v. State of Andhra Pradesh (2025), holding that a trans woman in a heterosexual marriage can invoke the cruelty provision in Section 498A IPC (now Section 85 BNS).
The Allahabad High Court has now taken the opposite path. In Mohd Saakir @ Mohd Sakir v. State of U.P. (15 October 2026), a bail order, Justice Arun Kumar Singh Deshwal held that "woman" in Section 69 BNS covers only a female human being. The Court stated that a trans woman falls outside it even after sex-reassignment surgery.
The order was narrower than its headlines: because it expressly confined itself to Section 69, it is not a ruling that trans women can never be victims of rape under Section 63. But it shows what this statutory silence costs: High Courts now give "woman" opposite meanings, so a trans woman's protection can depend on where she files her case.
NALSA gives strong grounds to question the reasoning in Mohd Saakir. The Supreme Court there rejected a "biological test" of gender in favour of self-identification, holding that gender identity does not depend on surgical procedures. But winning that argument would solve only half the problem: an inclusive reading of "woman" helps trans women, while still leaving trans men and non-binary adults outside the purview of Section 63 BNS.
The Fallback That Vanished: Section 377
Under the IPC, men and transgender survivors had an alternative in the form of Section 377. Unlike the rape provision, it did not require the victim to be a woman. The flaw was that it criminalised even voluntary intercourse between same-sex and opposite-sex couples alike.
In Navtej Singh Johar v. Union of India (2018), the Supreme Court read down its application to decriminalise consensual sex between adults while leaving it in force for non-consensual acts, acts involving minors, and bestiality. The principle left behind by Navtej was clear: what makes sex criminal is not the act or gender of those involved, but the absence of consent.
Parliament had the opportunity to build on that principle when it replaced the IPC. Instead, it omitted Section 377 entirely when the BNS took effect on 1 July 2024. The gap was foreseen. In its 246th Report on the BNS, the Parliamentary Standing Committee on Home Affairs noted that dropping Section 377 would leave non-consensual sexual offences against men and transgender persons unpunished, and therefore recommended retaining it. A petition, Pooja Sharma v. Union of India, asked the Supreme Court to restore these offences. In October 2024, the Court declined, holding that the exercise falls within Parliament's domain. Two years later, the gap remains.
Is Section 18(d) an Answer?
Transgender survivors are left with a single specific protection: Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019. It punishes anyone who harms or abuses a transgender person, including causing physical and sexual abuse, with imprisonment of six months to two years and a fine. By contrast, rape under Section 64(1) BNS carries a minimum of ten years' rigorous imprisonment, extendable to life. Section 18(d) places sexual abuse in the same clause as verbal, emotional and economic abuse. In law, therefore, raping a trans woman and insulting her carry the same maximum punishment.
And since 2026, even this limited protection may not reach every transgender survivor. The Transgender Persons (Protection of Rights) Amendment Act, 2026 came into force on 25 May 2026, replacing the original broad definition of "transgender person" under Section 2(k). Since Section 18(d) protects only a "transgender person" as Section 2(k) defines it, narrowing the definition narrows the protection. The amended definition lists only specified socio-cultural identities such as kinner and hijra, certain congenital sex variations, and people compelled to assume a transgender identity. It excludes persons with "self-perceived sexual identities".
A person shut out of the adult rape provision for not being a woman may now also be shut out of the special statute for not being transgender. Whether such narrowing survives is now before the Supreme Court in Laxmi Narayan Tripathi v. Union of India.
Protected Until Eighteen
For children, the question of identity never arises. Under the Protection of Children from Sexual Offences Act, 2012 (POCSO), a child is any person below eighteen, and Section 3 defines penetrative sexual assault without limiting victims to girls. However, on turning eighteen, a survivor outside the category of "woman" loses that protection without gaining equivalent coverage under adult law.
The break at eighteen reaches beyond charge and sentence. Section 397 of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires every hospital to give immediate free first aid or medical treatment to victims of listed offences, including rape under the BNS and penetrative sexual assault under Section 4 of POCSO. Section 18(d) of the Transgender Persons Act is not on that list.
What Reform Should Look Like
This uneven protection raises a constitutional objection. Article 14 allows the law to treat people differently only if the difference serves the law's purpose. The purpose of rape law is to protect sexual autonomy, and a survivor's gender has no bearing on whether that autonomy was violated.
The obvious objection is that rape law is women-specific because women face entrenched sexual violence. Article 15(3) also supports this by expressly permitting special provisions for them. But a power to protect women is not a duty to exclude everyone else.
In January 2013, the Justice J.S. Verma Committee recommended that rape law be gender-neutral for the victim but gender-specific for the perpetrator. That model was briefly enacted in a broader form, and then dropped.
Parliament should return to it. The first way is to amend Section 63 BNS to redefine the victim as "another person", while the provision continues to begin with "A man is said to commit rape". The second is to enact a separate offence of penetrative sexual assault on any adult, carrying the same punishments.
Reform cannot be left to the courts. They can read statutes in the light of constitutional rights, but they cannot stretch a criminal offence beyond its words, because people must know in advance what the law punishes. Parliament should close the gap expressly, with transgender communities involved in the drafting.
A survivor should be able to seek recognition of sexual violence without first surrendering recognition of themselves.
Author is a final-year B.A. LL.B. student at Government Mohindra College, Patiala. Views are personal.