Gaikhangduanliu M. Kamei
The Illusion of Neutrality in Legal Equality
In a constitutional democracy like India, the law is often regarded as the ultimate arbiter of equality and justice. Yet, the very fabric of legal frameworks can sometimes reflect and reproduce the biases they seek to dismantle. One such tension emerges in the debate between gender justice vs gender neutrality, especially in domains like sexual assault, domestic violence, and marriage. While gender-neutral laws may appear to embody fairness by treating all individuals alike regardless of gender, they often risk invisibilizing the very inequalities they are supposed to address.
The Allure and Pitfalls of Gender-Neutrality
Gender-neutrality in law refers to the removal of gender-specific language in legal texts and the extension of legal protections or obligations to individuals irrespective of their gender identity. In principle, this approach is intended to promote inclusivity, moving away from heteronormative and binary understandings of gender. It seeks to establish a level playing field by ensuring that the law treats all individuals equally, without privileging or excluding anyone based on their gender. On the surface, this seems like a progressive move, especially in a world that is increasingly recognizing the fluidity and spectrum of gender identities.
However, in the Indian socio-legal and cultural context, this form of legal neutrality often fails to account for the deep-rooted structural inequalities that govern people’s lives. India is a society where patriarchal norms, gender hierarchies, caste dynamics, and heteronormative ideals still shape access to justice, power, and safety. In such a setting, gender-neutral legal frameworks, while appearing egalitarian, can inadvertently erase the lived realities of marginalization. Instead of ensuring equal protection, they may end up ignoring the very power structures that make some groups more vulnerable than others.
A clear example of this is the ongoing debate around gender-neutral sexual assault laws in India. At present, the Indian Penal Code (IPC), particularly Section 375 which defines rape, is gender-specific: it identifies the perpetrator as male and the victim as female. Many activists and legal scholars have advocated for making this provision gender-neutral to include male and transgender survivors. Indeed, this demand emerges from real gaps in the law, for instance, male and queer survivors currently lack a direct route to file complaints under the rape provision and are instead forced to rely on less severe charges such as “unnatural offences” or “outraging modesty.”
Yet, while this need for inclusion is valid, blanket gender-neutrality risks flattening the asymmetrical realities of gendered violence. Data from the National Crime Records Bureau (NCRB), as well as qualitative research, shows that an overwhelming majority of sexual violence cases are perpetrated by men against women and trans persons, often within familial, social, or institutional hierarchies. Sexual violence is not simply a matter of individual deviance but is often a manifestation of systemic power imbalances, patriarchy, misogyny, transphobia, and caste-based control.
Gender-neutral laws that ignore these power dynamics might technically extend protection to all, but in practice, they can dilute the structural recognition of gender-based violence. By treating all forms of assault as equally likely across all genders, the law loses sight of the specific forms of violence that women, queer, and trans people are disproportionately subjected to, especially those from marginalized castes or economic backgrounds.
Furthermore, in cases of domestic violence, the misuse of gender-neutral provisions is a documented concern. Women’s rights organizations have flagged that a gender-neutral domestic violence law could be used by abusive male partners to file counter-allegations, which in turn delegitimizes the survivor’s testimony and disincentivizes women from coming forward. In a judicial system already fraught with delays, insensitivity, and a low conviction rate for gender-based crimes, these counter-complaints can serve as tools of legal harassment, turning the law against the very people it is meant to protect.
This does not mean that men or non-binary individuals cannot be victims of violence. They certainly can and must be able to seek redress. But the solution is not to erase gender from the law entirely. Rather, it lies in developing nuanced, inclusive, and context-aware frameworks that extend protection without erasing the structural and historical dimensions of harm.
Equality Isn’t Sameness: The Case for Substantive Justice
In essence, while gender-neutrality might appear fair in form, in contexts like India, where social power is deeply gendered, such neutrality can translate into procedural equality but substantive injustice.
The call for legal neutrality cannot be considered in abstraction, it must be interrogated against the uneven terrain of social realities. Legal systems do not operate in a vacuum; they are embedded in and shaped by the power structures, prejudices, and hierarchies of the society they govern. Equality in law, therefore, cannot be conflated with sameness of treatment. Treating unequals as equals may appear formally fair, but it often reinforces the very inequalities it seeks to address.
Feminist legal scholars such as Catharine MacKinnon have long warned against this trap of what she calls “facial neutrality”, laws that, by appearing to be universally applicable, obscure the unequal realities of people’s lived experiences. A facially neutral law does not always translate into equitable outcomes, especially when the starting points of individuals are vastly different due to patriarchy, caste, class, heteronormativity, and gender-based discrimination. In such cases, neutrality becomes a means of preserving the status quo under the guise of fairness.
Take, for example, the challenges women face when seeking justice in cases of sexual violence or domestic abuse. These are not just legal hurdles but systemic barriers, rampant victim-blaming, police inaction, judicial delay, and social stigma all conspire to deter women from reporting abuse, let alone securing justice. Many women, especially those from Dalit, Adivasi, or minority backgrounds, face intersecting forms of marginalization that further compound their vulnerability and exclusion from the justice system.
The Quiet Violence of Exclusion
For LGBTQIA+ individuals, the legal landscape is even more fraught. Despite the decriminalization of consensual same-sex relations in Navtej Singh Johar v. Union of India (2018), there is no comprehensive anti-discrimination law, and many queer and trans persons are still denied recognition in matters of marriage, inheritance, and legal identity. In many cases, the law is either silent or inaccessible, offering little recourse to victims of gendered or sexual violence. To apply a gender-neutral framework in such a context, without first dismantling these deep structural inequalities, is to equate legal recognition with actual protection, a false equivalence that often leaves the most marginalized behind.
This is why what we need is not merely neutrality, but justice, an approach that is grounded in difference, history, and the distribution of power. Gender justice recognizes that social and legal structures are not neutral to begin with, and therefore demands the law to be responsive, rather than blind. It acknowledges that equal treatment does not guarantee equal outcomes, especially in a society where people do not begin from the same place.
A justice-oriented approach would not simply rewrite the law to be gender-neutral in form, but would account for context and structural power. For instance, in the case of domestic violence, instead of adopting a simplistic neutrality, the law could:
- Retain gender-specific provisions for women, recognizing the disproportionate harm and systemic risks they face within patriarchal family structures;
- Simultaneously expand protections to include men, queer, and trans survivors, whose experiences are often invisibilized under current frameworks;
- And crucially, build in context-sensitive mechanisms that respond to the distinct power dynamics at play in different types of relationships, such as same-sex partnerships, chosen families, or live-in arrangements.
This nuanced legal architecture would go beyond mere inclusion or tokenism. It would reflect an understanding that justice is not about fitting everyone into the same mold, but about addressing specific needs and vulnerabilities with care and integrity.
Ultimately, the law must not aspire to neutrality in a world that is fundamentally unequal. Instead, it must embrace its responsibility to disrupt those inequalities, by seeing difference, responding to it, and reshaping itself in pursuit of true equity.
Legal marginalization of queer and trans individuals in India is not confined to criminal law, it is perhaps most insidiously embedded in civil rights frameworks such as marriage, inheritance, adoption, and legal identity. These areas of law, often perceived as apolitical or neutral, in fact play a powerful role in defining whose relationships, families, and lives are considered legitimate, and whose are not.
Despite growing societal recognition of diverse gender identities and sexual orientations, Indian law continues to define marriage primarily as a heterosexual institution, legally recognizing only unions between a cisgender man and a cisgender woman. This is evident across various personal and secular laws, whether it’s the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, or other religion-based personal laws governing Muslims, Christians, Parsis, and others. Each of these legal frameworks continues to enforce a rigid, binary understanding of gender and sexuality, leaving little to no room for queer and trans people to form legally protected families.
This narrow legal recognition has far-reaching consequences. It effectively:
- Excludes same-sex couples from accessing a host of rights that flow from marriage, such as inheritance, joint bank accounts, adoption, maintenance, spousal insurance, and pension benefits.
- Denies transgender persons the right to marry in their affirmed gender unless they undergo medical procedures (such as sex reassignment surgery) and obtain state-sanctioned certification, a requirement that violates both bodily autonomy and privacy, as recognized in the Navtej Singh Johar v. Union of India (2018) and Justice K.S. Puttaswamy v. Union of India (2017) judgments.
- Completely ignores non-binary identities, who are not even legible to the state within the male-female binary. These individuals are left in a legal void, unacknowledged by statutes that offer no linguistic or conceptual space for them.
Even the landmark judgment in NALSA v. Union of India (2014), which recognized transgender persons as a “third gender” and affirmed their right to self-identification, has yet to be meaningfully translated into reforms in family law, marriage law, or welfare entitlements. The ruling was a progressive step in principle, but the absence of follow-through in statutory law has created a legal schizophrenia: where gender identity is constitutionally protected but still denied in practical, everyday legal matters.
The consequences of this erasure are not merely symbolic; they have tangible, material impacts. Legal invisibility translates into:
- No next-of-kin recognition for queer partners in medical emergencies or death-related procedures;
- No inheritance rights, even if a couple has lived together for decades;
- No spousal healthcare access, insurance coverage, or rights to make end-of-life decisions;
- No access to joint housing applications, leading to discrimination in rental and ownership markets.
For many queer and trans individuals, this results in a precarious existence, where their relationships, families, and lives are treated as legally non-existent. In denying them the right to form families in the eyes of the law, the state essentially denies them the right to be full citizens.
Moreover, this exclusion is exacerbated by the Transgender Persons (Protection of Rights) Act, 2019, which, while presented as a protective measure, imposes a bureaucratic and medicalized framework for gender recognition that is deeply out of step with the NALSA judgment’s affirmation of self-determination. The law fails to address core areas such as marriage, adoption, or property rights, thereby institutionalizing inequality under the pretense of protection.
With this standpoint, civil law becomes a site of quiet violence, not through overt punishment, but through absence, denial, and omission. By refusing to recognize queer and trans people’s most intimate bonds, the law reinforces their marginality and undermines their ability to live lives of dignity, security, and belonging.
The appeal to gender neutrality in law often carries the allure of objectivity and modernity. It presents itself as a clean, rational solution: remove gender markers, and you eliminate gender bias. But this apparent fairness masks a dangerous flattening of social realities. Gender-neutrality, in its most uncritical form, assumes that all genders experience the law and the world in similar ways. It imagines that if legal language does not mention gender, it somehow rises above the influence of sexism, homophobia, or transphobia.
Neutrality as Strategic Silence in Legal Reform
But the law is never neutral, not in its design, application, or impact. It reflects the structures and power imbalances of the society in which it operates. In India, where gender-based violence is not only widespread but systemic, and where queer and trans people remain legal afterthoughts, neutrality can function as a form of strategic silence. It allows the state to claim reform while leaving the roots of inequality untouched.
This becomes particularly urgent in the context of contemporary legal reform, especially with the introduction of the Bharatiya Nyaya Sanhita (BNS) and other bills aimed at replacing colonial-era criminal laws. While these legislative changes have been framed as decolonial and progressive, they have largely failed to embed transformative gender justice frameworks. Instead of disrupting patriarchal or heteronormative norms, these new codes repackage old exclusions in updated language.
The BNS, for example, retains a binary understanding of rape, continuing to define it as a crime perpetrated by a man against a woman. This excludes male, trans, and non-binary survivors, effectively leaving their pain unacknowledged by law. In a moment that could have reimagined justice in more inclusive and reparative terms, the law has doubled down on its exclusions.
Similarly, the continued absence of marriage equality in Indian law reinforces the message that queer and trans lives are unworthy of state recognition. By defining marriage exclusively as a union between a man and a woman, the law delegitimizes other forms of intimacy, care, and kinship, rendering queer relationships invisible in the eyes of the state and ineligible for the vast array of civil rights that accompany legal marriage.
Reimagining Law Through Equity, Not Erasure
To move meaningfully toward gender justice, legal reform in India must go beyond formal equality and embrace substantive equity. This means confronting the uneven terrain of lived experience, rather than bypassing it in the name of neutrality. The following steps are essential:
- Enact marriage equality legislation that recognizes and protects all forms of partnership, regardless of gender identity or sexual orientation. Love, care, and companionship should not be legally reserved for the cis-heterosexual majority.
- Reform sexual assault laws to reflect the disproportionate vulnerability of women, Dalit and Adivasi women, and trans persons, while also ensuring that all survivors have pathways to justice. Protection does not require sameness; it requires sensitivity to context.
- Develop comprehensive laws for gender identity recognition, anti-discrimination, and social protection, not just piecemeal fixes. These should address healthcare, employment, housing, education, and public accommodations for LGBTQIA+ individuals.
- Shift from abstract equality to contextual fairness, one that doesn’t fear difference, but sees it as foundational to justice. The law must respond differently to different needs, rather than treating all with indifferent sameness.
Conclusion: Justice That Sees and Responds
True justice is not found in blind equality, but in the willingness to see, name, and rectify injustice where it lives, often in the margins, in the silences, in the footnotes of policy. Gender neutrality, without attention to power and history, risks becoming a mask for inequality, a way of appearing just while maintaining the status quo.
What India needs is not the erasure of gender in law, but a reimagining of law through the lens of gender, caste, sexuality, and lived vulnerability. What we need is not sameness, but equity, a legal imagination that recognizes, respects, and redresses the conditions that shape marginalized lives.
Justice, after all, is not served by closing our eyes to difference, but by looking directly at it with care, courage, and clarity.
Journal Articles & Scholarly Sources
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News & Commentary
Scroll.in. (2018, March 18). Rape laws: Why is sexual violence against India’s transgender community not being taken seriously?
https://scroll.in/article/868907/rape-laws-why-is-sexual-violence-against-indias-transgender-community-not-being-taken-seriously
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LiveLaw. (2025, March 26). If JAG posts are gender‑neutral, why fewer women allowed? Supreme Court questions Union. https://www.livelaw.in/top-stories/if-jag-posts-are-gender-neutral-why-fewer-women-allowed-supreme-court-questions-union-287604
Bar & Bench. (2025, June 23). Child custody law should reflect evolution from patriarchal views, be gender neutral: Allahabad High Court. https://www.barandbench.com/news/child-custody-law-should-reflect-evolution-from-patriarchal-views-be-gender-neutral-allahabad-high-court
Bar & Bench. (2025, May 3). Allahabad High Court organizes two‑day workshop on gender sensitization for family court judges. https://www.barandbench.com/news/allahabad-high-court-organizes-two-day-workshop-on-gender-sensitization-for-family-court-judges
General Resources
PRS Legislative Research. PRS India. https://prsindia.org/
LiveLaw. LiveLaw. https://www.livelaw.in/
India Kanoon. IndiaKanoon. https://indiankanoon.org/
Bar & Bench. Bar and Bench. https://www.barandbench.com/