Beyond the Binary: Why ‘Gender-Neutral’ Laws Aren’t Enough (And What Comes Next)
From Token Neutrality to True Equality: Rethinking Gender, Justice, and the Future of India’s Legal Framework
Author - Aparna Gupta (Osmania University College of Law)
ABSTRACT
India’s movement toward gender-neutral legislation has been widely celebrated as progressive reform, yet superficial replacement of gendered terminology often fails to deliver meaningful equality. This paper argues that formal neutrality, merely substituting “person” for “men” and “women”, proves insufficient to address deeply entrenched social hierarchies and systemic discrimination. Through examination of the Bharatiya Nyaya Sanhita (BNS), 2024, and domestic violence legislation as case studies, this paper demonstrates that genuine legal neutrality must be substantive, intersectional, and adaptive. Such neutrality requires addressing disparities rooted in gender, caste, class, and other social identities while challenging institutional biases embedded within legal systems. Furthermore, in an era of algorithmic governance and AI-mediated decision-making, neutrality must extend into digital systems and technological infrastructure. By prioritizing agency over paternalistic protection and embracing complexity over categorical thinking, India’s legal framework can evolve toward a truly inclusive and reflexive justice system that recognizes persons rather than rigid gender categories.
Keywords: Gender neutrality, substantive equality, intersectionality, Bharatiya Nyaya Sanhita 2024, domestic violence law, algorithmic bias, adaptive legal framework, LGBTQIA+ rights
INTRODUCTION: THE “NEUTRALITY” WE HAVE VS. THE “NEUTRALITY” WE NEED
The enactment of the Bharatiya Nyaya Sanhita (BNS), 2024, represented a historic opportunity for India to reimagine criminal justice for a modern, pluralistic society. Yet by retaining gendered definitions in certain provisions, most notably rape, while neutralizing other offenses, the legislation created a troubling paradox: laws claiming neutrality while institutionalizing selective empathy and unequal treatment. This partial reform exposes the fundamental problem with formal neutrality: the flawed assumption that identical textual treatment automatically produces equality.
In reality, equality is contextual and outcome dependent. A law may appear facially neutral while reproducing inequality when it ignores social hierarchies, cultural norms, power differentials, or systemic biases. Domestic violence legislation provides another instructive example: formally gender-blind statutes often fail to protect victims in same-sex relationships, elderly persons outside traditional family structures, or persons with disabilities whose vulnerabilities extend beyond gender alone. Formal neutrality, therefore, risks excluding those who deviate from traditional gender binaries, leaving structural inequities fundamentally unaddressed.
This paper contends that legal neutrality must evolve beyond word-based symmetry toward outcome-oriented equality, embracing what I term substantive neutrality. Achieving this transformation requires simultaneous focus on three dimensions: agency rather than paternalistic protection, intersectionality that recognizes overlapping identities and vulnerabilities, and institutional adaptivity that enables legal systems to respond to evolving social realities.
RETHINKING THE FOUNDATION: AGENCY, NOT JUST PROTECTION
India’s feminist legal movement initially and necessarily prioritized protection, responding to the historical exclusion of women from both public and private spheres and their vulnerability to violence and discrimination. While protective legislation served vital functions, exclusive reliance on this framework risks perpetuating paternalism and dependency rather than fostering autonomy and empowerment.
The Supreme Court’s decision in Joseph Shine v. Union of India illustrates this tension. In striking down the adultery provision of the Indian Penal Code, the Court recognized that laws premised solely on protecting women’s “purity” or “honour” ultimately perpetuate dependency and deny women full personhood. Justice Chandrachud observed that such provisions reduce women to the property of their husbands rather than recognizing them as autonomous individuals with agency and sexual autonomy.
Constitutional Framework
The Constitution provides guidance for balancing protection with autonomy:
Article 14 guarantees equality before the law and equal protection of the laws, establishing a baseline prohibition against arbitrary classification and discriminatory treatment.
Article 15(3) permits affirmative action and special provisions for women and children, recognizing that formal equality may be insufficient to remedy historical disadvantage and structural discrimination.
Together, these provisions create a dual imperative: to provide special protections where socio-economic realities demand remedial measures, but not to entrench dependency, essentialize gender roles, or perpetuate exclusion from full citizenship.
The Right to Self-Definition
Substantive neutrality requires recognizing persons beyond narrow gender identity. The Supreme Court’s landmark judgment in National Legal Services Authority (NALSA) v. Union of India affirmed that the right to self-identify one’s gender is intrinsic to dignity and privacy under Article 21. The Court held that psychological sex or gender identity lies at the core of personal identity, self-expression, and dignity, and that denying recognition to self-identified gender violates constitutional rights.
NALSA’s implications extend beyond transgender recognition. The decision demands that all laws, criminal, civil, and administrative, conform to gender-diverse realities and respect self-determination. Subsequently, Navtej Singh Johar v. Union of India decriminalized consensual same-sex relations, further affirming that constitutional morality must trump conventional morality and that the law cannot perpetuate discrimination against LGBTQIA+ persons.
Intersectionality as Legal Imperative
True legal equality requires intersectional neutrality: a framework cognizant of how gender intersects with caste, class, religion, disability, and other axes of identity and vulnerability. As scholar Kimberlé Crenshaw has demonstrated, single-axis frameworks that treat gender, race, or class as isolated categories fail to capture the compounded discrimination faced by those at multiple margins. A Dalit woman faces discrimination that cannot be understood through gender or caste analysis alone; similarly, a transgender person from a poor background experiences vulnerabilities that formal gender-neutral laws may not address.
Formal neutrality alone cannot resolve these layered disparities. Substantive neutrality demands legal and institutional recognition of intersecting identities and the creation of remedies responsive to compounded vulnerabilities.
CASE STUDY 1: THE BNS 2024 AND SELECTIVE EMPATHY
The Bharatiya Nyaya Sanhita exemplifies the hazards of partial neutrality and incomplete reform. By retaining gendered definitions in certain provisions while neutralizing others, the legislation signals that some victims are legitimate and deserving of recognition while others remain legally invisible.
The Gendered Definition of Rape
The BNS retains the definition of rape as an offense committed by a man against a woman, maintaining the framework inherited from the Indian Penal Code despite decades of advocacy for gender-neutral sexual assault provisions. This definition excludes several categories of victims:
Male victims of sexual assault: Men and boys who experience sexual violence by male or female perpetrators have no recourse under rape provisions and must instead rely on other offenses with lesser penalties and different legal standards.
Transgender and non-binary persons: Those whose gender identity does not conform to the male-female binary lack clear legal recognition as potential victims or perpetrators of rape.
Victims in same-sex relationships: The gendered definition fails to address sexual violence within same-sex partnerships, denying victims legal recognition and remedy.
Legal Implications
This selective approach raises serious constitutional concerns:
Violation of Article 14: The gendered definition creates an arbitrary classification, treating similarly situated sexual assault survivors differently based solely on their gender identity. This classification lacks rational basis and fails to serve any legitimate state interest that gender-neutral language could not equally serve.
Conflict with NALSA: By maintaining binary gender categories in rape law, the BNS contradicts the Supreme Court’s recognition in NALSA that gender identity exists along a spectrum and that self-identified gender deserves constitutional protection.
Institutionalized Selective Empathy: The inconsistent approach, neutralizing some offenses while maintaining gender specificity in others, undermines the credibility and coherence of neutrality claims. It suggests that certain victims’ experiences are more “authentic” or deserving of serious criminal sanction than others.
Proposed Reforms
Moving toward substantive neutrality in sexual assault law requires multi-dimensional reform:
1. Comprehensive Linguistic Neutrality: Replace gendered terms with “person” or “individual” across all sexual offense provisions, including rape, while ensuring penalties remain commensurate with harm severity.
2. Recognition of Penetrative and Non-Penetrative Assault: Expand definitions beyond traditional penis-vagina penetration to encompass various forms of sexual violation, recognizing that harm derives from violation of bodily autonomy and dignity rather than specific anatomical configurations.
3. Mandatory Training for Enforcement Personnel: Police officers, prosecutors, medical examiners, and judicial officers must undergo comprehensive sensitivity training addressing LGBTQIA+ experiences, trauma-informed investigation techniques, and implicit bias recognition.
4. Interpretive Guidance for Courts: Include explicit legislative statements directing courts to construe penal provisions inclusively, respecting self-identified gender and recognizing diverse experiences of sexual violence.
5. Support Infrastructure: Establish gender-neutral crisis centres, forensic examination facilities, and counselling services equipped to serve all survivors regardless of gender identity or sexual orientation.
Substantive neutrality, therefore, demands operational and institutional transformation, not merely semantic adjustments.
CASE STUDY 2: REIMAGINING THE HOME AS A “HUMANITY LAW” ZONE
Domestic violence legislation provides another crucial test for legal neutrality. The Protection of Women from Domestic Violence Act (PWDVA), 2005, represented groundbreaking reform, recognizing domestic violence as a civil rights violation and providing comprehensive protection including residence rights, maintenance, and protection orders. However, the Act’s limitation to women as victims, while politically necessary given the historical context and persistent vulnerability of women to domestic violence, creates gaps in coverage that undermine comprehensive protection.
Gaps in Current Framework
The PWDVA’s gender-specific approach excludes several vulnerable groups:
Male Victims: Men experiencing abuse by female partners or family members lack access to PWDVA protections and must instead rely on general criminal law, which often proves inadequate for addressing domestic violence’s cyclical nature and power dynamics.
LGBTQIA+ Persons: Same-sex couples and transgender individuals in domestic relationships have no clear legal recourse under PWDVA, despite experiencing domestic violence at rates comparable to or exceeding heterosexual relationships.
Elderly Persons: While elderly women receive PWDVA protection, elderly men facing abuse by adult children or other family members cannot access these remedies.
Persons with Disabilities: Individuals with disabilities, who face elevated domestic violence risk, may not receive adequate recognition of disability-specific abuse forms under current provisions.
The Humanity Law Model
A substantively neutral approach to domestic violence requires reimagining the legal framework around human dignity and relational harm rather than fixed gender categories. This “humanity law” model incorporates several key elements:
Recognition of Relational Harm: Focus on power dynamics, dependency relationships, and shared households rather than biological sex categories. Define domestic violence as harm occurring within intimate or familial relationships, regardless of the parties’ genders.
Gender-Neutral Infrastructure: Establish shelters, protection officers, and support services designed to serve all domestic violence survivors, with specialized units for specific populations (male victims, LGBTQIA+ persons, elderly, disabled).
Explicit Inclusion: Statutory language must explicitly recognize same-sex partnerships, live-in relationships, transgender persons, elderly family members, and persons with disabilities as potential victims deserving protection.
Intersectional Safeguards: Acknowledge that caste, class, disability, and other factors intersect with gender to shape domestic violence experiences and create specific vulnerabilities requiring tailored interventions.
Economic Justice: Extend maintenance, residence rights, and economic support to all victims, recognizing that economic dependency and lack of resources often trap individuals in abusive relationships regardless of gender.
This model operationalizes substantive neutrality by embedding empathy and protection within enforcement structures while respecting diverse vulnerabilities and identities. It shifts from a women-specific to a person-centred framework without abandoning recognition that women continue to face disproportionate domestic violence risk.
THE NEW FRONTIER: NEUTRALITY IN ALGORITHMIC GOVERNANCE
In the digital age, law increasingly interacts with algorithmic systems that mediate access to justice, employment, credit, and other crucial resources. These systems often reproduce and amplify existing social biases, including those based on gender, caste, and class. Achieving substantive neutrality therefore requires extending legal principles into technological infrastructure and algorithmic decision-making.
Algorithmic Bias in Legal Contexts
Several domains illustrate how algorithmic systems can perpetuate inequality:
Predictive Policing: Algorithms trained on historical crime data may direct law enforcement attention disproportionately toward marginalized communities, including transgender persons and sex workers, perpetuating discriminatory enforcement patterns.
AI-Assisted Sentencing: Risk assessment tools used in bail and sentencing decisions may incorporate gender, socioeconomic status, or other factors in ways that disadvantage already-marginalized groups.
Employment Algorithms: Hiring, promotion, and termination decisions increasingly rely on AI systems that may embed gender stereotypes or discriminate against non-binary individuals whose profiles don’t conform to algorithmic expectations.
Digital Harassment: Online abuse, doxxing, and gender-based violence in digital spaces require legal frameworks that extend anti-harassment protections to virtual environments.
Proposals for Algorithmic Neutrality
Achieving substantive neutrality in algorithmic systems requires several interventions:
1. Mandatory Algorithmic Audits: Require regular, independent assessments of AI systems used in legal, employment, credit, and government contexts to identify and remediate bias. Establish standards for algorithmic fairness that prevent discrimination based on protected characteristics.
2. Transparency Requirements: Mandate disclosure of algorithmic decision-making processes, training data sources, and weighting factors to enable meaningful review and challenge by affected persons.
3. Institutional Reforms:
Constitute mixed-gender benches for cases involving gender-based violence and discrimination.
Establish LGBTQIA+-trained legal aid officers and public defenders.
Integrate gender sensitivity, implicit bias, and intersectionality training into judicial curricula and continuing legal education.
4. Digital Workplace Protections: Extend anti-harassment statutes explicitly to virtual work environments, remote employment contexts, and AI-mediated employment decisions. Prohibit discrimination based on gender identity or expression in algorithmic hiring, evaluation, and termination systems.
5. Privacy Protections: Ensure that data collection systems respect privacy and self-determination, allowing individuals to define their own gender identity without forced categorization into binary systems.
Neutrality in law must therefore be reflexive and adaptive, encompassing both textual interpretation and systemic implementation across physical and digital domains.
CONCLUSION: TOWARDS ADAPTIVE JUSTICE
India’s legal reform trajectory reflects tension between two competing approaches: symmetry (treating everyone identically regardless of circumstances) and sensitivity (providing special protections for specific vulnerable groups). The next frontier requires transcending this binary through adaptive neutrality: a justice system capable of learning, responding to emerging challenges, and evolving alongside social transformation.
Key Measures for Adaptive Justice
Periodic Gender Impact Reviews: Mandate systematic assessment of legislation’s actual effects on different populations, disaggregating outcomes by gender, caste, class, disability, and other relevant factors. Use these reviews to guide amendments and course corrections.
Intersectional Equality Indices: Develop comprehensive metrics measuring equality outcomes across multiple, intersecting dimensions rather than single-axis gender parity. Track access to justice, economic opportunity, physical safety, and political participation across diverse populations.
Participatory Law-Making: Include representatives from marginalized communities, including LGBTQIA+ persons, Dalits, persons with disabilities, and other systematically excluded groups, in legislative drafting, policy formulation, and institutional design processes.
From Protection to Partnership: Shift the underlying orientation from paternalistic protection of vulnerable groups toward partnership models that centre agency, autonomy, and self-determination while maintaining necessary safeguards against exploitation and violence.
Constitutional Mindfulness: Ensure that all reforms align with constitutional values articulated in NALSA, Navtej Singh Johar, and other progressive judgments, recognizing dignity, autonomy, and self-identification as foundational principles.
Final Reflections
True neutrality is not the erasure of difference or the denial of persistent inequalities. Rather, it is the recognition of complexity, the acknowledgment that persons exist beyond rigid categories, and the commitment to ensuring that legal systems serve human flourishing rather than administrative convenience or traditional hierarchies.
By centring persons rather than categories, by prioritizing substance over form, and by building adaptive capacity into legal institutions, India can achieve equality in motion, not merely words on paper but lived experience of justice, dignity, and belonging for all persons regardless of gender identity, sexual orientation, or other aspects of identity.
The question is not whether India can afford such transformation. The question is whether India can afford to continue with legal frameworks that deny full humanity to significant portions of its population. As the Supreme Court observed in NALSA, constitutional morality demands nothing less than recognition of the full personhood of every individual. Gender-neutral laws represent a beginning, not an endpoint. The work of achieving substantive neutrality, in law, institutions, technology, and social consciousness, continues.
REFERENCES
Cases
Joseph Shine v. Union of India (2018) 10 SCC 1
National Legal Services Authority v. Union of India (2014) 5 SCC 438
Navtej Singh Johar v. Union of India (2018) 10 SCC 1
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498
Statutes
Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023)
Constitution of India, 1950
Indian Penal Code, 1860 (Act 45 of 1860)
Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005)
Secondary Sources
Upendra Baxi, The Future of Human Rights (Oxford University Press 2002)
Kimberlé Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’ (1991) 43 Stanford Law Review 1241
Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fishbowl (Routledge 2018)
Ruth Rubio-Marín (ed), The Gender of Constitutional Jurisprudence (Cambridge University Press 2012)