Transgender Persons and Structural Barriers in Criminal Justice: A Comparative Study of India and Indonesia

Abstract

This article critically examines the structural and legal barriers faced by transgender (TG) persons within the criminal justice systems (CJS) of India and Indonesia. It systematically inquires into the gaps in substantive criminal laws, procedural safeguards, policing practices, trial process, and prison administration that exclude TG persons in India and Indonesia from access to justice. It focuses on three offence clusters: sexual violence, police violence/custodial abuse, and criminalisation through public order/morality laws. The paper argues that CJS of both the jurisdictions fail to protect TG persons not only because of social stigma or lack of recognition, but because the substantive criminal laws and procedural safeguards are designed around gender-binary notion and are implemented through hostile law-enforcement institutions. This research employs a doctrinal and comparative legal methodology to analyse the treatment of TG persons across three stages of the CJS: pre-trial reporting and investigation, trial, and post-trial prison administration. It contrasts India’s recognition framework- grounded in the landmark NALSA judgement and the Transgender Persons (Protection of Rights) Act of 2019-alongside its criminal law scheme under the Bharatiya Nyaya Sanhita, 2023, and the Bharatiya Nagarik Suraksha Sanhita, 2023 with Indonesia’s constitutional guarantees, recent KUHP reforms, Law No. 12 of 2022 on Sexual Violence Crimes, and morality-based regional enforcement. The research concludes that India and Indonesia differ in formal recognition but converge in structural obstacles such as gender-binary penal laws, police violence, and data invisibility. It recommends for substantive legislative reform, stronger implementation mechanisms, and greater institutional accountability to secure meaningful criminal justice protection for TG persons in both the jurisdictions.