III.

WHETHER THE IMPUGNED JUDGMENT OF HON'BLE HIGH COURT OF

OKLAHOMA WAS REASONABLE AND JUSTIFIED WHILE ACQUITTING THE
ACCUSED PERSON(S) UNDER SECTION 377 OF THE OKLAHOMA PENAL CODE,
1860?

1. The impugned judgment of Hon’ble High Court of Oklahoma was not justified as there
were sufficient evidences on the ground of which the accused could be held liable of
committing sexual harassment against the order of nature.1
2. The punishment in case of unnatural offences is as severe as that of rape. Unnatural
offences cover all form of penetration other than penile vaginal and consent is immaterial
in case of unnatural offences. The punishment may extend to imprisonment for life or
imprisonment up to ten years and fine.
3. Once the victim alleges absence of consent, then the burden is on the accused to remove
the allegations against him. However in our present case where the appeal was made to
the Hon'ble High Court of Midwest City against the Judgment of Ld. trail court, it
acquitted the Respondent from all charges on the ground of lack of evidence, the fact of
the case itself states it. So, it is clear that there is injustice with the victim.
4. It violates article 14 15 19 &21 .As such discrimination made to them ,violates their
rights infact in our law these person are not considered because there are not sufficient
laws to safeguard their rights. Due to this so many cases are dismissed on the ground of
their gender .
5. National Legal Services Authority , the transgender community first time recognized as a
'THIRD GENDER" by supreme court . The court invoked the spirit of the Indian
constitution to make a passionate case for the rights of transgender people .They
considered as a third gender under the ambit of Article 14 , the motive behind this
judicial action was to provide equality to the transgender community .
6. They entitled legal protection of laws, in all spheres of state activity as well as equal
citizenship right .central& state government should seriously address the problem being
faced by hijras / transgenders such as fear , shame , social pressure , depression etc. and
any insistence for SRS for declaring once gender immoral and illegal.2

1
Tarun Jit Tejpal v. State of Goa, (1968) 3 SCR 354
2
J.N. Pandey, Commentary on Indian Constitution
 7. The discrimination on the basis of sex under Article 15 & 16 of the constitution is a
prohibition against all forms of gender bias & gender based discrimination including
discrimination against transgender people .

IV. WHETHER THE PROVISION(S) RELATED TO SEXUAL OFFENCES IN THE

OKLAHOMA PENAL CODE, 1860 FAILS TO PROTECT THE DIGNITY AND
MODESTY OF TRANS-SEXUAL AND LGBT COMMUNITY?
1. Yes, the provisions related to sexual offences in the Oklahoma Penal Code 1860 fails to
protect the dignity and modesty of transsexual and LGBT community. The existing
provisions on rape are not gender neutral .
2. The definition of ‘gender’3 in OPC is itself flawed; it introduces just two genders, not
keeping up with modern times; the third gender is not included in the definition.
3. While there is no denying that rape is a gendered crime that affects women in a very large
number but the community that suffers inexplicable harm from being excluded from the
definition of rape is the transgender and LGBT community.
4. The definition of rape under Section 375 is ultra-vires for being discriminatory and
volatile of Article 144, Article15 (prohibition of discrimination on grounds of religion,
race, caste, sex..) and Article 21 (right to life and personal liberty) of the Constitution of
Oklahoma .The sexual offences under Oklahoma Penal Code have lack of
acknowledgement of transgender victims of rape .
5. It should also be noted that the issue of gender neutrality within rape laws has been rising
since time immemorial in Oklahoma. The question of gender neutrality was for the first
time dealt in the case of Sudesh Jhaku  vs KC Jhaku5, by the Delhi High Court where
the Court opined that the protection of the law against sexual assault must be extended to
men as well.
6. Recommendations to increase the ambit of Section 375 of Indian Penal Code were
pointed out in The Law Commission Of India in its 172nd report after the corollary to
Sakshi v. Union of India6 .

3
IPCSection 8 , 1860
4
Right to equality
5
1998 Cri Lj 2428
6
Sakshi vs Union Of India AIR 2004 SC 3566,2004(2) ALDCri 504
 7. After the historic judgment of Supreme Court in the case of National Legal Service
Authority v.Union of India7which declared transgender “Third Gender” and also
affirmed that the fundamental rights granted under Constitution of Oklahoma will be
equally applicable to them and gave them the right of self -identification of their gender
as male , female or third gender .
8. The pune sessions Court allowed bail foe four accused in an alleged case of gang rape of
a 19 year old transgender on the ground that there is no mention of third gender under
Section 377.It is humbly submitted before the Hon’ble Supreme Court that this kind of
discrimination against the victim of rape on the basis of gender identity is deeply
offensive to the dignity and self-worth of the individual which is against the mandate of
Articles 14, 15, 21 of the Constitution of Okhlahoma.
9. TRANSGENDER PROTECTION ACT 2019 IS ITSELF A VIOLATION OF
HUMAN RIGHTS OF TRANSGENDERS
10. The Transgender Protection Act 2019 which was passed after the legal recognition of
transgender granted in NALSA Judgement. This act itself contains some unconstitutional
provisions which violate the constitutional rights of transgender.
11. Section 7 states that a person requires to undergo medical surgery in order to obtain
recognition as transgender. But the NALSA judgement states that right to gender
identification is a fundamental right under Article 19(1)(a) and Article 21.
12. This section directly violates the right to equality as under this provision maximum
punishment for sexual abuse against a transgender person is only two years whereas the
section 376 of OPC sets the penalty for sexual abuse against a women of 20 years or life
imprisonment.
13. Hence the perennial struggle of transgender community to secure themselves an equal ,
supportive , legally protected system still has a long way to go for the accomplishment of
constitutional guarantees of liberty , equality , freedom and justice.

7
National Legal Services Authority vs Union of India AIR 2014 SC 1863