Need for Inclusion of LGBTQIA+ under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Introduction

The Constitution of India² provides fundamental rights to all its citizens. The right to equality, right against discrimination, right to freedom, and right to life and personal liberty under Articles 14³, 15⁴, 19⁵ and 21⁶ respectively form the bulwark of a wholesome life in India. However, the lives of transgender people in India have been anything but wholesome. The National Human Rights Commission’s (NHRC) study on “Human Rights of Transgender as Third Gender” stated that the scope of several legal provisions is very limited and does not cover social protection, healthcare, education, and access to goods and services, making transgender people very vulnerable⁷. For as late as 2013, transgender people were denied the right to self-determination. They were forced to ascribe to either of the two legally recognised genders i.e. male or female. In 2013, the Supreme Court of India recognised “transgender” as the “third gender” and affirmed that all the fundamental rights under the Constitution of India will be equally applicable to them. It also gave them the right to self-identify as male, female or third gender; National Legal Services Authority v. Union of India⁸. Finally, the Supreme Court in Navtej Singh Johar v. Union of India⁹ decriminalised homosexuality.

Until 5-12-2019, India had no laws in place to combat the adversities faced by the transgender community, which has been languishing in the margins of society for decades. In 2019, the Transgender Persons (Protection of Rights) Bill¹⁰ was passed by Parliament after receiving the nod of the Rajya Sabha after only three days of debate and discussion without any amendments. The Act defines transgender persons under Section 2(k)¹¹ as:

2. (k). a person whose gender does not match with the gender assigned to that person at birth and includes transman or transwoman (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.

Loosely, transgender people do not conform to the gender identities given to them at birth and their sexual orientations vary and are not dependent on their gender identity. It also prohibits “the denial of, or termination from, employment or occupation” under Section 3(c)¹². However, there are several bottlenecks in the existing Act. The law requires a certificate of identification to be issued by the District Magistrate to transgender people. This is actually violative of the fundamental right to privacy as mandated by K.S. Puttaswamy v. Union of India¹³. It does not provide a redress mechanism if the District Magistrate denies the certification. A Screening Committee was established under the Transgender Bill, 2016¹⁴ to make recommendations to the District Magistrate to avoid misuse. This provision was subsequently removed from the Transgender Bill, 2019. Reservations for transgender persons are also not included in the Act. In 2021, the State of Karnataka has notified 1% reservation to the transgender community in all government services¹⁵.

The right to work is still not a fundamental right in India, however, under Article 41¹⁶ the State shall endeavour to secure the right to work for the unemployed as a mandate under the Directive Principles of State Policy. Article 19(1)(g) grants freedom of profession and occupation to all its citizens. India ratified ILO’s Discrimination (Employment and Occupation) Convention, 1958¹⁷, as early as in 1960. It prohibits discrimination on the ground of “race, colour, sex, religion, political opinion, national extraction or social origin”. However, transgender people are the most marginalised section of society and lack a security net of any kind. They are easy prey and the risk of sexual harassment acts as a deterrence for them to participate in the workforce. There are less than 6% of transgender people working in the formal sector and they are almost negligible in the government sector.¹⁸ Transgender people are forced to beg on the streets and be part of oppressive setups for their daily bread. In this article, the author will make a case for making the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013¹⁹ more inclusive and gender-sensitive by including the third gender within its ambit.

Lgbtqia+ and exploitation at workplace

Witten mentioned that transgender people are the most targeted groups of people and are highly susceptible to both physical and mental violence²⁰. A survey conducted by The Guardian in 2019 revealed that 70% of lesbian, gay, bisexual, and transgender (LGBT) people are sexually harassed at work²¹.

In 2014, the World Bank published the report titled, “The Economic Cost of Homophobia and the Exclusion of LGBT People: A Case Study of India”. It revealed that the homophobia and exclusion of LGBT from the workplace causes 01.-1.7% loss of GDP. 56% of the LGBT people reported discrimination in white-collar jobs²².

The Indian LGBT Workplace Climate Survey 2016 revealed that more than half of Indian LGBT surveyed could be fired for being LGBT and 87% of them do not have access to formal LGBT Employee Resource Groups. The survey also studied the workplace environment. It was found that 40% of the respondents had suffered harassment and â…”rdof them have gone through the trauma of homophobic comments²³.

A study by NHRC on the rights of transgender reveals that around 92% of transgender persons are denied the right to participate in any form of economic activity and even qualified ones are denied jobs and around 18% of them are physically abused.²⁴

There are several reports wherein it was found that transgender people prefer to hide their identity at their workplaces as it reduces the risk of discrimination and abuse. Pinder & Harlos observed that many a times employees withhold themselves from speaking against abuse or chose not to disclose their sexual identities. This is due to their powerless positions in organisations. The discrimination against transgender people starts from their very own families. Families can be both the source of support and the source of discrimination²⁵. Fuller and Riggs did a survey of 345 transgender people living in North America and found that participants who faced higher levels of gender discrimination from their families reported greater psychological distress²⁶. It is this discrimination against transgender people which starts from their own families and extends to society later. The people who are already under distress tend to either not to enter discriminatory workplaces or resort to silence while working there. However, there is not enough research on the workplace experiences of transgender people. McFadden found that there is not enough research on the workplace experiences of transgender people through a systematic review of literature from the field of business, management, and broader social science disciplines from 1985 to 2015. Out of 263 journal articles, it was found that only 18 articles dealt with transgender people. Thus, there is an urgent need to study the workplace experiences of marginalised communities and document them to push for reform.²⁷ Bina Agarwal argued that “bargaining power” is the key to social and legal reform. Groups which have greater “bargaining power” in households, markets, and the State are successfully able to push for social and legal changes²⁸. The “bargaining power” of transgender people can be increased by better research and documentation of their workplace experiences so that the discrimination and exploitation can be established beyond doubt, paving the way for legal and policy initiatives for the protection of transgender people.

There is a dearth of studies on the inclusive policies or initiatives of employers in favour of marginalised communities like women and transgender people. A review of annual reports of Financial Times Stock Exchange 100 firms discovered that 80% of these UK firms donot have anti-discriminatory policies in favour of transgender people²⁹. In India, a Workplace Equality Index Report 2020 revealed that out of 65 top companies surveyed, 13 did not meet the minimum thresholds³⁰.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

In 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act came into force. The Act was passed to protect women at the workplace against sexual harassment at workplace. Section 2(n) of the Act³¹ defined “sexual harassment” as:

(1) physical contact and advances; or

(2) a demand or request for sexual favours; or

(3) making sexually coloured remarks; or

(4) showing pornography; or

(5) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

On 3-12-2021 in Union of India v. Mudrika Singh³², the Supreme Court Bench comprising of D.Y. Chandrachud and A.S. Bopanna, JJ. observed that the right against sexual harassment is part and parcel of the right to life with dignity under Article 21 of the Indian Constitution. They held that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is landmark legislation and the processes under it should not be turned into a punishment over trivial information. The Supreme Court also recognised the problems faced by complainants who are subordinate to the accused in the workplace hierarchy.

Article 21 is part of Chapter III of the Indian Constitution and grants the right to life and personal liberty to everyone. However, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 grants protection against sexual harassment at the workplace only to women. Section 2(a)³³ defines the aggrieved “woman”, making it clear that only a woman can file a complaint of sexual harassment at the workplace.

Interestingly, in Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College³⁴, it was held by the Calcutta High Court that the complaint can be filed against a woman under the Act. Section 2(m) of the Act³⁵ defines “respondent” as “a person” against whom the aggrieved woman has made a complaint under Section 9 of the Act³⁶. Thus, the Supreme Court considers protection against sexual harassment as a fundamental right but the law concerned on the matter extends the protection only to a specific gender i.e. “woman”. It goes against the constitutional scheme of the right to equality and non-discrimination under Articles 14 and 15 which prohibits any discrimination on the ground of religion, race, caste, sex, or place of birth. It is clear that the 2013 Act is not a gender-neutral law and provides protection only to women at the workplace.

Transgender Persons (Protection of Rights) Act, 2019

Section 18 of the Act³⁷ recognises following offences against transgender persons:

(i) forced or bonded labour (excluding compulsory government service for public purposes);

(ii) denial of use of public places;

(iii) removal from household, and village;

(iv) physical, sexual, verbal, emotional or economic abuse.

The penalties for these offences vary from 6 months to 2 years and a fine. The penalty is quite less if compared to gender specific offences like rape. Also, there is no special category of sexual harassment at workplaces.

Other laws relating to sexual offences

Interestingly, the Penal Code³⁸ does not define sexual offences and all sexual offences except Section 377³⁹ are gender-specific i.e. only a woman can be a victim of them. Sexual offences can be understood as those offences which violate or interfere with the bodily integrity of the victim without his or her consent. Section 375 IPC⁴⁰ relates to rape and only a woman can be raped. Section 354-A⁴¹ was added in IPC by the Criminal Law (Amendment) Act, 2013⁴². It makes sexual harassment a crime and is also not gender-neutral in nature as only men can be accused of it against women. However, it is not restricted to sexual harassment at the workplace but addresses sexual harassment everywhere. The decriminalisation of Section 377 extends to only consensual homosexual relationship between two consenting adults and maintains the criminalisation of the non-consensual relationship amounting to “unnatural offences”. Other offences like stalking, voyeurism are also gender-specific under IPC.

Justice Verma Committee⁴³ was formed in the wake of Nirbhaya rape case⁴⁴ in 2012 to recommend changes in the rape law in India. It for the first time took cognizance of the vulnerability of transgender persons to sexual violence. It recognised the different sexual orientations of people and pointed that the word under “sex” under Article 15 includes “sexual orientation” and recommended to make “sexual offences” gender-neutral. However, these recommendations were not accepted and the Criminal Law (Amendment) Act, 2013 only made the law on rape more stringent and chose to ignore the plea for gender neutral sexual offences.

Conclusion

A recent research study funded by Deloitte, Herbert Smith Freehills and Brunswick makes a strong case for greater inclusion of Lgbtqia+ in the workforce. It highlights those countries that discriminate against Lgbtqia+ communities face an economic penalty. For example, Kenya loses up to 1.3 billion dollars annually due to discrimination against LGBT+. Evidence from the study showed that open and inclusive societies are better for economic growth as individuals tend to perform better in such a milieu irrespective of their sexual orientations⁴⁵. Thus, protection of Lgbtqia+ is not only a matter of protection of human rights but can also lead to the betterment of the economy.

In 2019, International Labour Organisation (ILO) came up with the Violence and Harassment Convention⁴⁶. It defines gender-based violence and harassment as “violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment”. Thus, the latest ILO Convention is gender-neutral in nature. Although India has not yet ratified the Convention, it can always be considered to be a guiding principle in framing policies against harassment at workplaces.

The laws and policies of India are gradually evolving to recognise the rights of transgender and Lgbtqia+. The recognition of rights of transgender on one hand and not giving them remedy under the Anti-Sexual Harassment at Workplace Law reveals the glaring inadequacy of the existing legal framework. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 should be amended to change the definition of “aggrieved” from “woman” to “person” to ensure that the mandate of the Constitution remains intact. In the presence of judicial decisions and legislations, the 2013 Act can be challenged as ultra vires in its present form. It is left to the private entities to frame gender-neutral rules which are not even mandatory in nature. Thus, there is an urgent need to provide protection to transgender and Lgbtqia+ under the 2013 Act and uphold the postulates of the Indian Constitution and International Conventions. The amendment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 will be a fitting start towards a larger goal of gender neutrality of sexual offences.