Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law

Abstract Despite expanding the definition of rape under the Indian Penal Code to include non-penile-vaginal acts of penetration, the said definition continues to conform to a gender-specific notion of rape, based on a predetermined characterization of the victim-perpetrator framework on the basis of their genders. Herein, I will critique this idea of gender specificity in Indian rape law on the grounds that it reinforces a binary notion of gender, and results in gross underinclusion. Instead, it is more appropriate to adopt a human-rights-based approach in defining the offence of rape, and negate the role of gender in identifying the victims and perpetrators of an act of rape. The argument is pillared on a state’s obligation to not discriminate on the basis of sex, the recognition of transgender rights, and an assessment of the common grounds for opposing gender neutrality in Indian rape law.