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.