Bombay High Court Recognises Gender Identity in BNS Sexual Harassment Proceedings

The Nagpur Bench of the Bombay High Court has ruled that a transgender person who identifies as a woman can invoke legal protection under Section 75 of the Bharatiya Nyaya Sanhita (BNS), 2023. The Court emphasised that a person's self-identified gender cannot be questioned at the stage of considering an accused's discharge application.

The ruling was delivered by Justice Mehroz K. Pathan on November 3, 2026, in Vishal S/o Sunil Ingle v. State of Maharashtra (Criminal Revision Application No. 270 of 2026).

Background of the Case

The matter arose from a complaint filed on November 1, 2025, alleging that the accused, Vishal Sunil Ingle, an Agniveer serving in the Indian Army, had sexually assaulted a transgender person who identified as a woman. The complainant alleged that the accused had proposed marriage and subsequently engaged in sexual intercourse against her wishes on October 28 and October 30, 2025.

Following the complaint, the police registered offences under Sections 75, 296 and 351(2) of the BNS, along with Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019.

Arguments Before the High Court

The accused challenged the rejection of his discharge application, arguing that Section 75 of the BNS could not apply because the complainant was a transgender person and not a woman within the meaning of the Sanhita. He also questioned the applicability of the Transgender Persons Act, contending that the complainant had obtained an identity certificate only on February 12, 2026, after the alleged incidents.

Opposing the application, the State argued that transgender persons are entitled to self-identify their gender and that the complainant, who identified as a woman, was entitled to seek legal protection against the alleged sexual harassment.

Observations of the Court

The High Court relied on the Supreme Court's landmark decision in National Legal Services Authority v. Union of India (2014), which recognised the right of transgender persons to self-identify their gender.

The Court examined Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019, which includes transgender men and transgender women within the definition of a transgender person. It observed that a person could identify as transgender even without possessing a formal identity certificate.

The Court further held that the absence of an identity certificate at the time of the alleged incident would not, by itself, prevent the invocation of the relevant penal provisions of the 2019 Act.

Importantly, the Court noted that the complainant had identified herself as a woman and that this self-determination could not be questioned at the stage of deciding the accused's discharge application.

Relevance of the 2026 Amendment

The Court also considered the Transgender Persons (Protection of Rights) Amendment Act, 2026, which received Presidential assent on March 30, 2026, and omitted Section 4(2) of the 2019 Act, which had expressly recognised the right to self-perceived gender identity.

However, the alleged incidents occurred in October 2025, when the earlier provision was still in force. Therefore, the Court considered the legal position applicable at the time of the alleged incidents.

Final Decision

Finding that the allegations in the FIR and the available material prima facie justified proceeding against the accused, the High Court refused to interfere with the rejection of his discharge application.

The Court concluded that allegations of assault and outraging the modesty of a woman could be sustained even where the victim was a transgender person identifying as a woman. It further observed that the question of consent would require examination during the trial.

Legal Significance

The decision is significant for transgender rights and the interpretation of gender-specific criminal protections. It reinforces the importance of self-identified gender in criminal proceedings and clarifies that formal identity documentation is not necessarily a precondition for invoking statutory protections.

However, the ruling was delivered at the discharge stage and does not amount to a finding of guilt. The prosecution must still establish its allegations during trial.