POCSO as a Gender-Neutral Law: Protection of Girls, Boys and Transgender or Gender-Diverse Children
Introduction
The Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) was enacted to provide a specialised legal framework for protecting children from sexual assault, sexual harassment and exploitation. Its significance lies not merely in prescribing punishments, but in recognising that a child subjected to sexual abuse requires a justice process different from ordinary criminal proceedings.
The POCSO framework is fundamentally child-centric rather than gender-specific. Section 2(1)(d) defines a “child” as “any person below the age of eighteen years.” The provision does not restrict protection to girls or boys. More significantly, the Supreme Court in Just Rights for Children Alliance v. S. Harish observed that the statutory definition of “child” is “denuded of any gender” and is both gender-neutral and gender-fluid, covering every person below eighteen years of age. (Indian Kanoon)
This principle has practical importance. Sexual abuse does not follow a single victim profile. Girls remain particularly vulnerable to sexual violence, but boys are also victims, while transgender and gender-diverse children may face abuse accompanied by stigma, identity-related discrimination and barriers to reporting.
The correct legal question is therefore not whether a child conforms to a conventional image of a victim. It is whether the child falls within the statutory protection of POCSO and whether the alleged conduct satisfies the ingredients of the relevant offence.
The real challenge today is not establishing that POCSO is gender-neutral in principle. The challenge is ensuring that its language, interpretation and implementation remain genuinely gender-neutral in practice.
The Statutory Foundation of Gender Neutrality
The starting point is the text of POCSO.
Section 2(1)(d) uses the expression “any person below the age of eighteen years.” That wording is deliberately broad. Parliament could have adopted a gender-specific definition but did not do so. The statutory protection consequently attaches to the status of being a child, not to being a girl or a boy. (India Code)
The Supreme Court’s judgment in Just Rights for Children Alliance provides particularly strong authority on this point. While considering the statutory framework governing child sexual exploitation material, the Court examined the definition of “child” under POCSO and expressly recognised its gender-neutral and gender-fluid character. (Indian Kanoon)
The NCPCR’s User Handbook similarly states that POCSO is a gender-neutral law and recognises protection for both girls and boys below eighteen years. (NCPCR)
The significance of this interpretation extends beyond terminology. It means that the application of POCSO cannot depend upon assumptions about how a victim “should” look, behave or respond.
A child who is physically strong can be a victim. A child who delays disclosure can be a victim. A boy can be a victim. A transgender child can be a victim. The gender of the alleged perpetrator cannot, by itself, determine whether the protective framework is engaged.
Protecting Girls Remains Central
Recognising gender neutrality does not reduce the importance of protecting girls.
Girls continue to face significant risks of sexual abuse within families, educational institutions, neighbourhoods and other environments involving trust or authority. POCSO specifically recognises aggravated circumstances where sexual offences are committed by persons occupying positions of authority, trust or responsibility.
The proper understanding of gender neutrality is therefore not that the law has moved away from protecting girls. Rather, the protection historically associated with girls is placed within a broader statutory principle: every child is entitled to protection from sexual offences.
This distinction matters because an overly abstract understanding of gender neutrality can itself become problematic. A girl may face particular forms of victim-blaming, family pressure or social stigma. Recognising those realities does not make POCSO gender-biased. It makes its administration responsive to the circumstances of the child.
Section 33 is particularly important in this regard. It provides safeguards intended to make proceedings less intimidating for a child, including restrictions on aggressive questioning and character assassination. Such safeguards recognise that the manner in which evidence is obtained can itself affect the child’s dignity and willingness to participate in the justice process.
Boys as Victims: The Law Must Reject Masculinity-Based Assumptions
One of the less visible dimensions of child sexual abuse concerns male children.
Social expectations frequently portray boys as physically stronger, emotionally resilient and capable of resisting unwanted sexual conduct. These assumptions can discourage disclosure and may influence how allegations are initially received by families, institutions or authorities.
From a legal perspective, those assumptions are irrelevant.
POCSO does not make protection conditional upon the perceived strength, personality or masculinity of the child. A boy below eighteen is a “child” within Section 2(1)(d), and the substantive provisions of the Act apply according to the facts and ingredients of the alleged offence. (India Code)
The same principle applies when the alleged offender is a woman.
This issue has generated judicial consideration. In Sundari Gautam v. State (NCT of Delhi), the Delhi High Court examined whether the use of the pronoun “he” in Section 3 of POCSO restricted penetrative sexual assault to male perpetrators. The Court ultimately held that the provision could not rationally be confined to male offenders, noting that Section 3 begins with the word “person” and covers forms of penetration that cannot logically be restricted to penile penetration. (Indian Kanoon)
This is an important High Court interpretation, but it should be described accurately: it is not a Supreme Court judgment finally settling every question concerning female offenders under every POCSO provision.
That distinction is important in serious legal writing.
The Problem of Gendered Drafting
POCSO presents an interesting statutory-interpretation question.
Its protective purpose is gender-neutral, and Section 2(1)(d) expressly adopts gender-neutral language. Yet Section 3 uses the pronoun “he” in describing the person committing penetrative sexual assault.
This creates an apparent tension between gender-neutral legislative purpose and gendered statutory terminology.
The solution should not be to read the statute mechanically in a manner that defeats its protective purpose. In Sundari Gautam, the Delhi High Court considered the statute as a whole and concluded that “he” could not reasonably be interpreted as restricting the offence to male offenders. (Indian Kanoon)
The reasoning is significant because statutory interpretation does not operate in a vacuum. Courts ordinarily seek to give effect to the legislative purpose rather than adopt an interpretation that produces an irrational or self-defeating result.
At the same time, this interpretative issue reveals a legislative weakness. Where Parliament intends a protective statute to operate without regard to the gender of the offender, the language should say so clearly.
A child-protection statute should not depend upon litigation to correct avoidable gendered ambiguity.
Legislative clarification would therefore be preferable to leaving the issue to inconsistent interpretations across courts.
Transgender and Gender-Diverse Children
The inclusion of transgender and gender-diverse children follows strongly from the statutory definition of “child.”
Section 2(1)(d) does not require a child to identify as male or female. The Supreme Court has expressly recognised that the statutory definition is gender-neutral and gender-fluid. (LawChakra)
The constitutional jurisprudence concerning transgender persons provides an additional foundation. In National Legal Services Authority v. Union of India, the Supreme Court recognised transgender persons as a constitutionally protected category and affirmed principles of dignity, equality and recognition of gender identity. NALSA was not a POCSO decision; it should therefore be used as constitutional context rather than as though it directly interpreted POCSO. (National Legal Services Authority)
For a transgender child, the legal difficulty may extend beyond the sexual offence itself.
The child may fear disclosure of gender identity, rejection by family members, inappropriate medical treatment, insensitive questioning or discriminatory institutional conduct. These factors can affect reporting and cooperation with investigators.
Gender-neutral implementation must consequently protect not only the child’s physical safety but also privacy, dignity and identity.
The objective should not be to create a separate POCSO regime for transgender children. The better approach is to ensure that the existing child-protection framework is administered without forcing a transgender child into unnecessary binary assumptions.
Gender Neutrality Is Not Identical Treatment
An experienced application of equality principles requires a distinction between formal equality and substantive equality.
Formal equality requires the law to provide protection without making gender a basis for exclusion.
Substantive equality recognises that different children may face different barriers in accessing that protection.
For example, a girl may face family pressure or victim-blaming. A boy may hesitate to disclose abuse because of expectations concerning masculinity. A transgender child may fear identity disclosure or institutional discrimination.
Providing all three children with the same statutory entitlement does not require ignoring these differences.
The correct proposition is:
The entitlement to legal protection must be equal, while the manner in which protection is delivered may need to respond to the child’s particular vulnerability.
This approach avoids two opposite errors. The first is gender discrimination. The second is gender blindness.
POCSO must avoid both.
Child-Friendly Justice and the Prevention of Secondary Victimisation
POCSO does not treat the child merely as a source of evidence.
Its procedural provisions recognise that participation in a criminal trial can itself be traumatic for a child. Section 33 contains safeguards concerning the manner of questioning and recording evidence. Section 37 requires trials to be conducted in camera. Other provisions address assistance, interpretation, support and legal representation.
The Protection of Children from Sexual Offences Rules, 2020 further provide for support persons and other forms of assistance. The Rules define a support person as a person assigned to assist the child through investigation and trial, and provide for confidentiality concerning information relating to the child. (Indian Kanoon)
These safeguards must operate without gender bias.
A boy should not be subjected to less protection because he is assumed to be emotionally stronger. A transgender child should not be subjected to intrusive questions concerning identity unless legally relevant. A girl should not be subjected to character-based questioning designed to undermine her credibility through stereotypes.
The objective is to prevent secondary victimisation—where the process intended to deliver justice becomes another source of psychological or social harm.
The Role of Gender-Sensitive Legal Practice
Gender neutrality also imposes responsibilities upon legal professionals.
Police officers must record complaints without prejudgment. Medical professionals must conduct examinations according to law and medical protocol rather than assumptions about gender or sexual behaviour. Prosecutors must present the case within the statutory framework without relying on stereotypes. Defence counsel must be permitted to test the prosecution case while remaining within the child-sensitive restrictions imposed by POCSO.
The last point deserves emphasis.
Child protection does not eliminate the accused’s right to a fair trial.
POCSO is a stringent penal statute. The seriousness of the allegation cannot itself substitute for proof of the statutory ingredients. The prosecution must establish the offence in accordance with law, while the court must protect the child from intimidation and unnecessary trauma.
A mature POCSO jurisprudence therefore requires two commitments at the same time:
meaningful protection of the child; and
principled criminal adjudication.
These are not contradictory obligations.
Recommendations
1. Clarify Gender-Neutral Statutory Language
Parliament should review provisions containing gender-specific terminology and remove ambiguity wherever the legislative intention is to cover offenders irrespective of gender.
2. Establish Mandatory Training
Police officers, prosecutors, judicial officers, medical professionals and support persons should receive structured training on gender stereotypes, trauma, disclosure patterns and the specific vulnerabilities of boys and transgender children.
3. Strengthen Support-Person Mechanisms
The support-person framework should be implemented consistently across jurisdictions. Support persons should be trained in child psychology, confidentiality, trauma-informed communication and gender-sensitive practice. The Rules already provide a statutory framework for support persons and confidentiality. (Indian Kanoon)
4. Develop Inclusive Reporting Systems
Police stations, schools, helplines and child-protection institutions should ensure that reporting mechanisms do not presume that the victim is necessarily a girl.
5. Protect Identity and Privacy
Particular care should be taken where disclosure may expose a transgender or gender-diverse child to family or social harm.
6. Improve Data on Male and Gender-Diverse Victims
Reliable and appropriately anonymised data can assist in identifying under-reporting and designing evidence-based interventions.
7. Strengthen Child-Friendly Courts
Courts should minimise unnecessary repetition of testimony, avoid intimidating questioning and ensure that statutory safeguards are meaningful rather than merely procedural.
8. Ensure Access to Psychological Support
Children should have access to appropriate counselling and psychological assistance during investigation, trial and rehabilitation.
9. Preserve Fair-Trial Guarantees
The pursuit of child protection must not be converted into a presumption of guilt. The prosecution must still prove the alleged offence according to law.
10. Measure the Justice System by More Than Convictions
The success of POCSO should also be measured by whether children can report abuse safely, obtain support, participate in proceedings without humiliation and receive appropriate rehabilitation.
Conclusion
POCSO is not merely capable of being interpreted as gender-neutral; its statutory structure strongly supports that conclusion.
Section 2(1)(d) defines a child as any person below eighteen years, and the Supreme Court has expressly described that definition as gender-neutral and gender-fluid. (LawChakra) The NCPCR likewise recognises POCSO as gender-neutral. (NCPCR)
The significance of this principle extends beyond girls and boys. It encompasses transgender and gender-diverse children who are entitled to the same statutory protection while requiring an administration of justice that respects their dignity, privacy and identity.
The more difficult issue is implementation. A statute can be gender-neutral in its object while its operation is affected by social stereotypes, institutional practices or ambiguous drafting. The gendered language in Section 3 illustrates why careful statutory interpretation and, where necessary, legislative clarification remain important. The Delhi High Court’s reasoning in Sundari Gautam demonstrates how the protective purpose of POCSO can inform interpretation, while also illustrating that the issue should not be overstated as a settled Supreme Court ruling on female perpetrators. (Indian Kanoon)
The proper approach is neither gender blindness nor gender preference.
It is equal legal protection combined with sensitivity to the particular barriers faced by individual children.
Girls must continue to receive robust protection. Boys must be recognised without masculinity-based assumptions. Transgender and gender-diverse children must be able to approach the justice system without sacrificing privacy or dignity.
Ultimately, the success of POCSO should not be judged solely by the number of FIRs registered or convictions secured. A stronger measure is whether a child can enter the justice system, disclose abuse, receive protection and participate in proceedings without being disbelieved, humiliated or discriminated against.
The central principle is therefore simple but legally significant:
No child’s gender should determine whether that child is entitled to protection, dignity and justice under POCSO.
Frequently Asked Questions
1. Is POCSO gender-neutral?
Yes. Section 2(1)(d) protects every person below eighteen years, irrespective of gender. The Supreme Court has expressly recognised this character of the provision. (LawChakra)
2. Can boys be victims under POCSO?
Yes. POCSO protects boys on the same statutory basis as girls.
3. Does POCSO protect transgender children?
Yes. Its definition of “child” does not exclude transgender or gender-diverse children. (LawChakra)
4. Can a woman be prosecuted under POCSO?
The Act is recognised as gender-neutral. The Delhi High Court has held that the relevant provisions should not be confined to male offenders merely because Section 3 uses the pronoun “he.” (Indian Kanoon)
5. Does gender neutrality mean identical treatment?
No. It means equal entitlement to protection while recognising different vulnerabilities.
6. Why is gender-sensitive training necessary?
Because stereotypes can prevent children from reporting abuse or can affect how their allegations are investigated and assessed.
7. Does POCSO remove the accused’s right to a fair trial?
No. Child protection and fair-trial guarantees must operate together.
8. What is the principal reform required?
Clearer statutory language, trained institutions, effective support mechanisms and genuinely child-friendly procedures.
References
Protection of Children from Sexual Offences Act, No. 32 of 2012, §§ 2(1)(d), 3–15, 33, 36–37, India Code. (India Code)
Protection of Children from Sexual Offences Rules, 2020, Gazette of India, G.S.R. 165(E) (Mar. 9, 2020). (Indian Kanoon)
Just Rights for Children Alliance & Anr. v. S. Harish & Ors., 2024 INSC 716, [2024] 10 S.C.R. 154 (Sept. 23, 2024). (Indian Kanoon)
National Legal Services Authority v. Union of India, (2014) 5 S.C.C. 438. (National Legal Services Authority)
Sundari Gautam v. State (NCT of Delhi), Crl. Rev. P. 852/2024 (Delhi High Ct. Aug. 9, 2024). (Indian Kanoon)
National Commission for Protection of Child Rights, User Handbook on the POCSO Act, 2012. (NCPCR)
Transgender Persons (Protection of Rights) Act, No. 40 of 2019.
Convention on the Rights of the Child arts. 2–3, Nov. 20, 1989, 1577 U.N.T.S. 3.
Author: Melody Tatenda Npurukasa
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