Gay rights parade in New Delhi on 12 November 2017
by Yuvraj Trivedi 29 July 2020
The LGBT+ community can be classified as a segregated group who are denied basic human dignity and rights. While the new labour laws are said to be an important discussion of the society, the issue surrounding the sufferings of the community still remains untouched. COVID-19 has further pushed the LGBT+ community in a spot where they are helpless beings, yet nothing further is done for their redressal. This situation is no different in terms of their access to employment and a discrimination-free workplace.
In this article, we seek to analyse the plight of the LGBT+ community with a special focus on the transgender community. Then, we attempt to outline the legislative framework pertaining to discrimination and harassment. Finally, we emphasise on the need to modify the existing legislation, as well as push for the intervention of the workplaces on a ground-level.
DISCRIMINATION IN THE WORKPLACE
A survey conducted by Time-Jobs reported that 57% of respondents were certain that their company would hesitate in hiring a person from the LGBT+ Community in a senior managerial position. From the process of recruitment to the very process of promotion, an institutional bias affects the basic functionary of an organisation. The due process of meritocracy has been taken for a ride by an imbalance of power dynamics, and inherent indoctrination of misogyny and patriarchy.
Many employees are stigmatised by their identity and fear eviction in case they come out and declare their gender identity or sexual preference. A question mark persists as to whether they will be accepted by society. They are prone to desertion from their scarce source of livelihood. Due to this self-antagonisation, many members of the community don’t even come out as who they truly are. This attacks the very principle of self-identification, as stated in NALSA v. Union of India. Thus, they are caught in the cycle of structural discrimination, exclusion, and violence.
The economic cost of Homophobia is also severe. This severity of lack of social inclusion has led to the loss of billions of rupees. Still, the companies are interested in being known as an organisation that fails to accommodate diversity and inclusivity. The Lack of Gender-neutral Bathrooms in the corporate workplaces have already shown the community that they have a long way to go in fighting for their rightful place in the society.
Many members of the LGBT+ community are not able to work in the corporate sector. Particularly, the Transgender Community earns its livelihood by begging, small-chores, and participating in religious ceremonies. This might be due to a lack of social acceptance and the vicious interplay of power dynamics in society. Hate-mongering has been prevalent in recent times, and this has led to the eviction of transgender persons from their jobs.
The government hasn’t been able to get an accurate count of its LGBT+ population, due to methodological barriers. A large number of transgender-persons don’t even possess basic documentation such as an Aadhar Card, Voter ID, or birth certificate. Therefore, they remain outside the scope of standard government social security schemes such as pension and rations. This hinders their chance to be recruited or employed, thereby violating their right to equality, dignity, and livelihood under the Constitution.
IS THE LEGAL FRAMEWORK EFFICIENT ENOUGH TO COMBAT DISCRIMINATION?
The Apex Court decriminalised the controversial Section 377 of the Indian Penal Code in a much-awaited judgment- Navtej Singh Johar v. Union of India. This verdict has encouraged many citizens to truly express who they are and re-affirm their gender identity. It can be considered as a stepping-stone towards combating sex-based discrimination.
The Constitution affirms equality through Article 14 and prohibits discrimination based on sex, gender, and other identities through Article 15. However, the same cannot be said to be implemented in spirit and letter. Discrimination persists in every spectrum and sphere, especially in the workplace. Slurs and continuous marginalisation continuously target the LGBT community. As citizens of India, they are legally entitled to the fundamental rights as other citizens.
The Equal Remuneration Act 1976 addresses workplace discrimination. It prohibits sex-based discrimination at the stage of recruitment and employability. However, it limits itself to the male-female binaries and excludes discrimination on the basis of gender identity. This automatically marginalises transgender persons and their rights. Moreover, it would be pertinent to observe that India’s POSH Act (Sexual Harassment of Women at Workplace Act, 2013) is enacted to prevent sexual harassment at the workplace against women only. This legislation also fails to consider that members from the LGBT+ community also face sexual harassment, and therefore violate the very objective of Article 15 of the Constitution.
Therefore, it would be safe to say that there isn’t any special legislation that protects the LGBT+ Community from being discriminated in the workplace. The Transgender Persons (Protection of Rights) Act 2019 touches upon the prohibition of discrimination against transgender persons in education institutions, government establishments, and while receiving healthcare. However, the legislation merely touches upon the definition of discrimination, and the punishment behind such discrimination. Such legislation has been widely criticised by the human-rights activists, non-binary identities, and cis-gender identities as well.
THE WAY AHEAD
Workplaces have come a long way in enabling diversity and social inclusion compared to the state about ten years ago. On various Social Media platforms, one can observe that several top-notch firms have changed their logo to rainbow colour in order to recognise the international pride month (June). This showcases that India surely has the potential to affirm the spirit of equality in their workplaces.
Nonetheless, there is a dire need to create many more inclusive spaces in the corporate system that is free from all sorts of discrimination, prejudice and institutional bias. Furthermore, recent developments in the international arena pressing for LGBT+ rights act as a stringent wake-up call for India. We cannot always rely upon the activists and human rights organisations to perform the state’s obligation towards their citizens. The government will have to step up and issue various directives in requiring the workplaces to become LGBT+ friendly.
Another suggestion would be to knock on the Supreme Court’s door, to re-affirm the right of self-identification and re-address the flaws present in the legislations. The court should address the lack of protection and benefits, which renders the LGBT+ workforce as vulnerable. There is a pressing need for the legislation to be re-conceptualised in order to account for LGBT+ persons and their fundamental rights.
We would also like to suggest the adoption of robust anti-discrimination legislation. There is already an ongoing debate going on around the need for an anti-discrimination law- the implementation of The Equality Bill, 2019. This comprehensive legislation will account for discrimination on all grounds and aim to protect the fundamental rights enshrined in the Constitution.
While inclusive/gender-neutral laws might lead to a progression structurally, however, the workplaces still need to indulge in the adoption of LGBT+ practices. Workplaces should implement gender-neutral policies in its functioning from now onwards. To tackle this persistent spirit of discrimination, workplaces should conduct sensitisations, training workshops, and awareness programs. The time has come when India should make a move on creating a safe space for each and every citizen holistically.