GENDER-NEUTRAL LAWS – CONSTITUTIONAL NECESSITY

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This article is written by Vaibhavi Shree of MIT World Peace University, an intern under Legal Vidhiya

Table of Contents

ABSTRACT

This paper is concerned with the increasing demand for gender-neutral laws in India in order to work for the promotion of effective equality before the law envisaged in the Constitution. There are various laws that protect women on account of their historic subordination; however, many of these laws ignore the rights of men and non-binary persons. Laws on sexual harassment, domestic violence, and family law in the existing legal system constantly presuppose men as perpetrators and women as victims. This not only fails male victims and LGBTQ+ victims but continues to perpetuate damaging gender stereotypes. The paper also reviews discriminatory laws and asserts that the unbalanced nature of such laws has occasionally resulted in misappropriation and false accusations. It also discusses the constitutional need for judicial neutrality and impartiality. Drawing on legal legislation, case law, and with reference to comparative experiences from jurisdictions where gender-neutral laws are in place, this paper makes recommendations for policy including legislative change, awareness raising, and institutional training. The objective: to campaign for a justice system that affords any individual, regardless of gender, equal dignity of treatment, equity and due process under law.

Keywords

Gender-neutral laws, legal equality, constitutional rights, sexual harassment, male victims, LGBTQ+ justice, Indian legal reform, gender.

INTRODUCTION

The Indian Constitution promises through Articles 14[1], 15[2] and 21[3] Of the Indian Constitution, the assurance of equality before/under the law, non-discrimination from the state or an individual and right to life and dignity. It doesn’t matter what your sex is to have these rights. Yet, when we look closely at India’s legal architecture, and we find a dupatta has been draped over the space between constitutional idiom and legislative fact. Many laws, including those relative to sexual offences, domestic violence and workplace harassment, remain based on the premise that only women can be victims and that only men can be perpetrators.

This gender-specific approach, though well-intentioned, often excludes male, transgender, and non-binary individuals from legal protection. For instance, Section 63 in the Bharatiya Nyaya Sanhita (BNS)[4] specifies what is rape and provides for a man as a perpetrator and a woman as a victim/considering that sexual violence can only happen to either of the two genders involved. Even as the POCSO Act, 2012, represented a welcome change by being gender-neutral for child victims, adult laws have still not kept in step. These aren’t mere practical gaps; they are constitutional ones. Article 14[5] ensures equality before the law. Article 15 outlaws discrimination on the basis of sex. The dignity and personal liberty are safeguarded under Art. And when the law denies protection based on gender, it violates these equal guarantees. A legal system that fails to take into account the experiences of male and LGBTQIA+ survivors of sexual violence is not only incomplete; it’s unjust.[6]

Law is gender neutral, but that doesn’t mean we must ignore the realities of violence based on gender that women face. It is acknowledging that justice should be available to all, regardless of gender identification. The law has to be as dynamic as our social awareness. This Article contends that the shift to gender-neutral legislation is not only a social and legal imperative, but also a constitutional one, which India can ill afford to postpone any longer.

THE IMPERATIVE OF GENDER-NEUTRAL LAWS IN THE INDIAN LEGAL FRAMEWORK

Gender-neutral laws are necessary in India for one simple reason: crime does not discriminate based on gender — so justice should not either. Our legal system, most notably in cases involving sexual violence, is still based on the notion that women can be victims and men can be assailants, period. That’s not only upholding harmful gender norms but denying justice to the (male and LGBTQIA+) survivors who face the same trauma with no legal path. For example, the Indian Penal Code recognizes that only a man can rape (and a female be raped).

Right to equality is enshrined under the Constitution of India under Article 14 and protection from discrimination of any form is guaranteed under Article 15[7] of the Constitution. Gendered laws violate both. Several other countries such as Canada and Australia have already decided to adopt gender-inclusive guidelines and it’s high time India follows in the same trend.

Making laws gender-neutral isn’t going to rob women of protection. Instead, it will grant protection to all people no matter their gender identity and affirm that justice should be blind to gender but clear on fairness.

PRESENT LANDSCAPE OF GENDER-NEUTRAL LEGISLATION IN INDIA

India has not been quick, but has made good strides to include a gender-neutral outlook in its legal system. Many of the laws are still based on a binary of male versus female, but a handful of the landmark policies have come to recognize rights and protections that are not dependent on where you are on the gender spectrum.

One significant instance is the POCSO Act, 2012, which is gender neutral on its face. It safeguards acts of below sex against all children, regardless of gender. This is a strong positive step in the right direction as most sexual offence laws in the Bharatiya Nyaya Sanhita still recognize only women as victims. There is also the Transgender Persons (Protection of Rights) Act, 2019[8] that attempts to deal with discrimination against transgender people in education and employment, and when it comes to accessing health services. However flawed, it is a substantial effort at bringing oppressed gender identities within the ken of the law.

In civil law, the Hindu Marriage Act, 1955, is framed in gender binary terms, there are gender-neutral provisions under its sections on mutual consent divorce and mental cruelty. But in practice, many courts continue to perpetuate gendered assumptions about marriage roles.[9]

One of the biggest imminent reforms is the Bharatiya Nyaya Sanhita, 2023, which derogates the Indian Penal Code[10] and guarantees gender mainstreamed criminal law. It aims to disentangle language and logic that constricts protection or liability by virtue of gender.[11]

While it’s clear these laws won’t entirely fix the problem, they do provide some room to talk about the way gender bias shapes our laws and what we can do to change that. They are critically important in laying the groundwork for a legal system that treats all citizens as equals — not according to gender but by rights and justice.

THE JUDICIARY’S ROLE IN BRIDGING GENDER GAPS IN LAW

Indian judiciary has been instrumental in framing the discourse on gender neutrality where legislative reforms have been slow or resisted. In landmark judgments, courts have reiterated that the guarantees provided under the Constitution, that is under Articles 14, 15 and 21, should also be afforded to all persons irrespective of their gender and sexual orientation. These judgments are the constitutional underpinning for insisting on gender-neutral laws.

When such a provision was enacted banning women in places where liquor was served, the Supreme Court in Anuj Garg v. Hotel Association of India (2007)[12] decided that it strengthened stereotype.[13] The Court emphasized that legislation must reflect substantive equality, not historical roles. In National Legal Services Authority (NALSA) v. Union of India (2014), the Supreme Court granted legal recognition to transgender people prevailing over the Western tradition of viewing them as third gender and declare that the community has a right to self-identification. This pivotal judgement went on to link gender identity with Article 14 (right to equality before law) and Article 21 (right to dignity), unequivocally arguing for inclusive, gender nondiscriminatory legal protections.

Navtej Singh Johar v. Union of India (2018)[14] was followed in which the Court read down Section 377 and decriminalized consensual same-sex relations. This was more than a question of privacy and liberty—it was about the invisibility and erasure of queer identities in the eyes of the law. Joseph Shine v. Union of India (2018)[15] also decimated Section 497 (adultery) holding it to be discriminatory and patriarchal. This underscored the importance of gender equality in personal laws.

Supriyo v. Union of India (2023)[16] did not legalize same-sex marriage but recognized the validity of queer love and recommended that the state contemplate reforms. Sakshi v. Union of India (1997)[17] demonstrated the struggle for gender-neutral rape laws, updating the law to account for male and queer survivors that are not covered by the law.[18]

Taken together, they reflect a maturing constitutional imagination of the judiciary, one that values gender-neutral laws not as a policy choice, but as compulsory to the promise of equality, dignity and justice to each and every citizen.

BARRIERS TO GENDER-NEUTRAL LEGAL REFORM IN INDIA

Patriarchal attitude: Indian society is influenced by the patriarchal social structure which is based on binary gender systems. This cultural indoctrination has an effect on the way laws are drafted, interpreted, and embraced making it hard to advocate for and implement reforms.[19]
Lack of Awareness: Lots of people, particularly in smaller towns and rural areas, don’t even know non-binary folks and transgender people exist. This ignorance begets resistance and misinformation, making it all the harder to build support among the public for gender-neutral laws.
Gendered Legal Language: Many Indian laws have male-oriented terminology. For instance, Section 63 of BNS and Domestic Violence Act largely concentrate on women as victims. To change these laws, we need to do more than just tinker with the wording; we need to change how society understands gender and victimhood.
Fear of Misuse: There is concern that gender-neutral laws might be misused or dilute women’s protections. This kind of fear frequently impedes legislative action, whether or not it is warranted by the facts as we know them.
Institutional challenges: Courts, schools, and workplaces are going to need new rules and infrastructure (like unisex restrooms and forms) to correspond to legal changes. I n the absence of the right policy support, its implementation will continue to be patchy.
Underrepresentation: Lesbians and Gays are Seldom Seen Involved in Law and Policy-making. In their absence, gender-neutral laws may be superficial or even harmful by not actually meeting the needs of all genders.

CONCLUSION

India’s criminal justice system is at a tipping point, at which demand for gender-neutral laws has ceased to be mere rhetoric and become a necessity. The Constitution secures equality, justice, and dignity for all, yet gendered stereotypes and biases persist, surface in laws, and stand in the way of protection for men, transgender, and non-binary survivors. Gender-neutral law is not about removing protections for women, but about making sure that no person is denied legal remedies just because the law doesn’t acknowledge the existence of someone who is not strictly male or female.

In the present scenario these gender-specific laws are also being abused by some, and this has led to apparent alienation of the judicial process. At the same time, countless real victims especially among the genders that are marginalized are neither heard nor shielded. This dissonance undermines our system of justice. Fear and misunderstanding are common reasons for resisting gender-neutral laws. But giving equal empowerment to all genders doesn’t detract from the fight for women’s rights, it enhances the whole justice struggle. Drafting laws that are gender-neutral is unlikely to be easy. Cultural attitudes, legislative reluctance and institutional changes are real obstacles. Nevertheless, the ultimate benefit is so worth the effort: true equality, greater access to the law and a fairer society.

This reform is not only a legal obligation but also a moral and constitutional one. India needs to rise to the occasion and accept a legal change that mirrors the cosmopolitan society it aims to be. Then and only then can you truly consider justice equal for all.

REFRENCES

[1] Article 14 of the Indian Constitution, 1950

[2] Article 15 of the Indian Constitution, 1950

[3] Article 21 of the Indian Constitution, 1950

[4] Section 63 in the Bharatiya Nyaya Sanhita, 2023

[5] Article 14 of the Indian Constitution, 1950

[6] Yadav, R. (2023). A Case Study on Gender Neutral Laws and Constitution. ShodhKosh: Journal of

Visual and Performing Arts, 4(2), 1797–1803. doi: 10.29121/shodhkosh.v4.i2.2023.2965

[7] Article 15 of the Indian Constitution, 1950

[8]Transgender Persons (Protection of Rights) Act, 2019

[9] Vartika Pandey (2024) Gender Neutrality Of Indian Laws – A Myth Or Reality? Educational Administration: Theory and Practice, 30(5), 3204-3213, Doi: 10.53555/kuey.v30i5.3419

[10] Indian Penal Code, 1860

[11] Samiksha Kanaujia, Need for More Gender-Neutral Laws, https://www.drishtijudiciary.com/blog/need-for-more-gender-neutral-laws

[12] Anuj Garg v. Hotel Association of India, (2007) 3 SCC 1, https://lawfullegal.in/the-need-for-gender-neutral-laws-in-india/

[13] Lawful Legal, THE NEED FOR GENDER NEUTRAL LAWS IN INDIA,

[14] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

[15] Joseph Shine v. Union of India, (2018) 2 SCC 189

[16] Supriyo and Ors. vs. Union of India (UOI) (17.10.2023 – SC) : MANU/SC/1155/2023

[17] Sakshi v. India and Ors, Final Decision on Writ Petition, Writ Petition (Crl) No33, 1997, with SLP (Crl) Nos 1672-1673, 2000; ILDC 868 (IN2004).

[18] Samiksha Kanaujia, Need for More Gender-Neutral Laws, https://www.drishtijudiciary.com/blog/need-for-more-gender-neutral-laws

[19] Shravani Santosh Patil, Vintage Legal, https://www.vintagelegalvl.com/post/understanding-need-of-gender-neutral-laws-a-step-towards-equality

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