Tag: #LGBT

Background

In the areas of social, economic, political, and cultural transformation, India has seen ongoing social and structural changes. There have been several law reforms that have sparked both negative and positive responses from the public. Homosexuality and gays are usually seen as in the minority and in an unfavorable position in our society since India has always placed a strong emphasis on upholding the traditions and morality of its culture. One such topic, homosexuality, has been treated diplomatically in relation to Indian culture but has always received unfavorable media and public attention.

Despite the fact that sex-based discrimination is prohibited by the Indian Constitution, LGBT Indians have just lately received this protection. The constitutional prohibition against “discrimination on the basis of sex” was gradually expanded by the Supreme Court of India in National Legal Services Authority (NALSA) v. Union of India in 2014 to encompass discrimination based on sexual orientation and gender identity. The Court noted that such discrimination against those who don’t fit traditional assumptions of binary genders violates the Constitution’s protection of the basic right to equality. Four years later, in Navtej Singh Johar v. Union of India, the Supreme Court acknowledged that the capacity and freedom to select a self-defined sexual orientation and gender expression, including dress and language, are at the foundation of one’s identity.

Protection Against Discrimination At the Workplace

According to a 2016 LGBT workplace poll, more than 40% of LGBT individuals in India have experienced harassment at work due to their gender or sexual orientation. Many LGBT persons frequently have to conceal their sexual orientation out of concern about possible discrimination or job loss. Therefore, the LGBTQIA+ population continues to face difficulties with regard to employment access and workplace discrimination.

A “strong and fair” profession, according to the Law Council of Australia, “includes, accommodates, encourages, and respects a diverse range of individuals and views.” However, current research suggests that Australian legal professionals do not yet believe that the profession is truly inclusive of LGBTQI+ people. For instance, a 2017 study by Thomson Reuters of 653 Australian attorneys revealed that a resounding majority of the LGBTQI+ respondents felt the industry as a whole needed to do more to increase diversity and inclusion for LGBTQI+ persons.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act of 2013 recognizes exclusively women as victims of sexual harassment and ignores the fact that harassment can occur to anybody, regardless of gender. In other words, the party who feels wronged might also be a man, a transgender person, or any other member of the LGBTQIA+ community.

Crucial Issues faced by the LBGTQIA+ community

As per survey reports conducted in the UK, Two-fifths of LGBT+ respondents (38%) identified coming out to clients as a significant issue, while one-third (34%) of LGBT+ legal professionals named microaggressions (indirect, subtle, or inadvertent slights or insults) as a problem. Nearly half (42%) of respondents claimed that being LGBT+ has no impact on their ability to do their jobs. Some lesbian, gay, and bisexual (LGB) respondents made the statement that they didn’t view their sexual orientation as their “identity” and that they didn’t think they went about their jobs any differently than other people.

Businesses need to take into account more than simply the potential talent drain. Important customer connections may also be in danger. Increasingly, large corporations and financial institutions want their legal teams to mirror the diversity of their own workforces. These highly sought-after clients have a lot of options, so a business might lose out if it doesn’t have a diverse team that includes LGBT people. According to Stonewall statistics, the productivity of LGBT attorneys drops by 30% when they aren’t openly present at work. Additionally, according to a study from Harvard Business Review, those who aren’t out are 73% more likely to quit their job in the next three years. Therefore, non-LGBT legal firms run the danger of underutilizing their LGBT staff and losing potentially profitable talent.

Workspace Experience in the UK

Workplaces must be inclusive, allowing individuals to be themselves, share ideas, and contribute from a variety of views, in order to realize the full potential of diversity. The majority of LGBT+ respondents to the study (97%) said they felt free to be themselves at work, either occasionally (44%) or always (53%).

Legal professionals who identify as LGBT+ were also more likely to report positive than negative workplace experiences. Positive workplace experiences were frequently attributed to the availability of formal and informal networks, whereas negative workplace experiences were linked to a lack of openly visible LGBT+ mentorship.

Workplace Experience in India

Mingle (Mission for Indian Gay & Lesbian Empowerment) successfully finished its first annual LGBT Workplace Diversity and Inclusion Survey in 2012 to provide an employee viewpoint. The poll included 455 LGBT professionals from 17 prestigious organizations (in engineering, software and IT services, and finance), of whom 65% identified as gay males, 25% as lesbians, and 10% as bisexual. A third of the interviewees mentioned workplace harassment, and 80% admitted to overhearing homophobic remarks in their workplaces. Positively, the poll discovered that open LGBT professionals performed better in this area than closeted workers.

Up to 90% of study respondents said that while deciding whether to join a firm, diversity and inclusion policies had a role. For their LGBT employees in India, several corporations, including Google, Infosys, and Goldman Sachs, have taken concrete action. It’s interesting to note that IBM addressed LGBTs in their equal opportunity policy after including it in the manager’s manual as early as 1984. By founding EAGLE (Employee Alliance for Gay, Lesbian, Bisexual, and Transgender Empowerment), a networking group that aims to provide senior employees with reverse mentoring benefits on a variety of issues ranging from alternative sexuality to career advancement, the company has already made a successful move.

IGLU, or Infosys Gay Lesbian Employees and You, is a project that works to establish a courteous and secure work environment for LGBT employees by holding special events and awareness activities to promote an inclusive culture.

Workspace Experience caused by harassment and discrimination

At some time in their careers, more than 40% of LGBT employees (45.5%) said they have encountered workplace discrimination or harassment because of their sexual orientation or gender identity. LGBT workers reported facing a variety of forms of verbal, physical, and sexual harassment at work, as well as being dismissed or turned down for employment due to their gender identity or sexual orientation.

At least one kind of workplace discrimination, such as being fired or not being recruited because of one’s sexual orientation or gender identity, was reported by more than one in four (29.8%) LGBT workers at some point in their careers. At least one kind of workplace harassment based on sexual orientation or gender identity was experienced by 37.7% of LGBT workers at some point in the year.

Why does Representation matter?

The foundation of Section 377 is gender stereotypes, which lead to discrimination based on sex. As Justice Chandrachud in his speech stated, “Statutes like Section 377 offer people justification to declare, ‘This is what a man is,’ by providing them a legislation that says, ‘This is what a man is not.’ The normative notion that certain behaviors, such as having sex with women, are proper for members of one sex but not for members of the other sex, is the basis for regulations that impact non-heterosexuals. Additionally, LGBTQ people’s rights cannot be limited to private areas. The right to sexual privacy, which is based on the autonomy of a free person, must include the community’s members’ ability to use public spaces as they see fit without interference from the government, as stated in Justice Chandrachud’s ruling in the Navtej Johar case. The right to privacy must thus be defined in terms of decisional autonomy rather than a limited definition of geographical privacy.

Significance of workplace diversity

The workforce of today is more varied than ever. Companies are becoming more conscious of the advantages of recruiting individuals from diverse backgrounds and the enormous value these workers add to the workplace. Companies that employ a diverse staff have 35 percent higher financial returns than national averages, according to a McKinsey analysis on workplace diversity. A well-managed diverse workforce will both decrease expenses and produce a greater profit. This exemplifies the value of diversity in the workplace for a company’s culture as well as its financial health. Employing LGBTQ people and fostering a supportive environment for them to thrive are two ways that businesses may profit from diversity. Diversity does not just imply including women and people from different racial, ethnic, and religious backgrounds.

Benefits of Workplace Diversity for Queer People

LGBTQ-supportive policies will first and foremost have an immediate impact on specific workers, resulting in less workplace discrimination and more comfort with coming out as LGBTQ at work. The Business Impact of LGBT-Supportive Workplace Policies, a poll by the Williams Institute, found that LGBTQ individuals who feel the need to conceal their identity at work frequently experience higher levels of stress and anxiety, leading to health problems and job-related complaints. Businesses may enhance their LGBTQ employees’ health, increase job happiness, and foster better connections with coworkers and managers by fostering an LGBTQ-friendly workplace culture.

How important is it being “out” at work?

The fact that 83% of respondents said LGBTQI+ legal professionals could be themselves among their immediate peers and colleagues was a positive result of the 2020 study. However, the study did not reveal if LGBTQI+ respondents, who made up just 41% of the sample, felt otherwise than non-LGBTQI+ respondents. Our study reveals, however, that LGBTQI+ legal students feel less confident in their ability to be themselves at work. Several interviewees felt the need to self-censor their gender identity and/or sexuality in the job, despite their optimism for change in the industry. This is essential because it is obvious that working in a setting that is viewed as dangerous or unwelcoming can have a detrimental impact on the productivity, organizational culture, and well-being of LGBTQI+ employees. A significant number of respondents stressed the value of working in a supportive and accepting workplace where they do not feel the need to self-censor.

Conclusion

Therefore, gender-neutral regulations are what we need when it comes to workplace harassment. However, there is another very significant point that can be made here, namely that the LGBTQIA+ population may interpret sexually charged words or unwanted behavior differently. Gender-neutral harassment laws must be complemented with robust anti-discrimination regulations in light of the pervasive transphobia and homophobia in order to avoid abuse of such laws against the LGBTQIA+ population. It has been noted that for the LGBTQA community to feel safe and protected as citizens of India, we as members of society must embrace them for who they are. Discriminating against someone because of their identity is cruel; we need to change and be accepting of it. Regardless of their sexual orientation, their rights should be recognized as basic human rights. The LGBTQ community needs its own set of laws to defend itself against crimes like lynching, workplace discrimination, and sexual offenses, and the laws should be gender neutral to prevent them from violating their fundamental rights.

---

References

1. Naz Foundation Govt. v. NCT of Delhi, 2009
2. Navtej Singh Johar vs Union Of India Ministry Of Law, 2018
3. UK Workplace Equality Index, n.d.
4. Diversity wins: How inclusion matters, 2020
5. 303 Creative v. Elenis: Amicus Brief, 2022

This article is written by Puneet Kaur, a second-year student at Amity University Punjab.

Citation of the case

AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016.

Date of the case

6 September 2018

Petitioner

Navtej Singh Johar & Ors.

Respondent(s)

Union of India & Ors.

Bench/Judges

Dipak Misra, R. F. Nariman, D. Y. Chandrachud, and Indu Malhotra.

Statutes Involved

The Constitution of India, The Indian Penal Code.

Important Sections/Articles

Art. 14, 15, 19, 21, 25 of the Constitution of India, Right to Privacy under Fundamental Rights, S. 377 of the Indian Penal Code.

INTRODUCTION

Navtej Singh Johar V/s Union of India¹ was one of the most critical cases, which changed our Indian laws and conveyed us with a superior understanding of those laws. Right to Life under Art. 21 of The Indian Constitution isn’t just with regards to allowing an individual to live, yet permitting everybody to live they need to live, in any means not harming those of others. Neither The Indian Constitution discusses the Right to Equality on a separate premise. Each living being is to partake in those freedoms with practically no segregation or imbalance.

An individual’s Natural Identity is to be treated as fundamental. What an individual is brought into the world with is normal, the same way the character an individual is brought into the world with is regular and is to be regarded and acknowledged as opposed to being scorned or peered downward on. Crumbling or deterring an individual’s character and personality would be something like pounding the upsides of Privacy, Choice, Freedom of Speech, and different Expressions. For long, the transsexual local area has been peered downward on, to which once Radhakrishnan, J. expressed, Gender character alludes to every individual’s profoundly felt inside and individual experience of orientation, which could compare with the sex relegated upon entering the world, including the individual feeling of the body which might include an openly picked, adjustment of real appearance or capacities by clinical, careful, or different means and different articulations of orientation, including dress, discourse, and peculiarities. Orientation personality, along these lines, alludes to a singular’s self-distinguishing proof as a man, lady, transsexual, or other recognized class. Numerous strict bodies have gone against the Carnal intercourse against the Order of nature and some remember it as a demonstration disparaging the protected idea of Dignity. The Navtej Singh Johar V/s Union of India was the milestone case which prompted the struck down of S. 377 of The Indian Penal Code, as it expressed – Whoever deliberately has licentious inter­course against the request for nature with any man, lady or creature, will be rebuffed with 1[imprisonment for life], or with impris­onment of one or the other depiction for a term which might stretch out to a decade, and will likewise be responsible to fine.

BACKGROUND OF THE CASE

Writ Petition (Crl) No. 76 of 2016 was petitioned for proclaiming the right to sexuality, right to sexual independence, and right to the decision of a sexual accomplice to be essential for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful. Mr. Arvind Datar learned senior guidance showing up for the writ applicants presented that the two-Judge Bench in Suresh Kumar Koushal and another v. Naz Foundation had been directed by friendly ethical quality in light of majoritarian discernment while the issue, in reality, should have been bantered upon in the setting of sacred ethical quality. Likewise in a Nine-Judge Bench choice in K.S. Puttaswamy and another v. Association of India and Ors., have thought that sexual direction is a fundamental part of freedoms ensured under the Constitution which are not formed on majoritarian discernment. Mr. Arvind Datar expressed that he doesn’t expect to challenge the piece of S. 377 that connects with licentious intercourse with creatures, he limits consenting demonstrations between two grown-ups. The assent between two grown-ups must be the essential pre-condition. If not, the kids would become prey, and insurance of the youngsters in all circles must be monitored and ensured.

FACTS OF THE CASE

Navtej Singh Johar, an artist alongside Sunil Mehra a columnist, a culinary specialist Ritu Dalmia, hoteliers Keshav, Aman Nath, and a Businesswoman Ayesha Kapur, all in all, documented a writ request in the Supreme Court looking for a presentation of the right to sexuality, right to sexual independence and right to the decision of a sexual accomplice to be important for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful, as it was impeding the privileges of the LGBT people group. It was expressed that this segment not just abused A. 21 yet in addition A. 15, 19 alongside the Right to Privacy under the Fundamental Rights in The Indian Constitution. There had likewise been a few cases in the past like the Naz Foundation v. Govt. of N.C.T. of Delhi² and Suresh Kumar Koushal v. Naz Foundation³, which were likewise kept in thought during this case.

ISSUES RAISED

1. Whether the rationale adopted in the Suresh Kaushal judgment was proper or not?
2. Whether S. 377 violates A. 14 and 15 of the constitution?
3. Whether S. 377 infringes the right to privacy under A. 21?
4. Whether S. 377 has a ‘chilling effect’ on A. 19 (1) (a) by criminalizing gender expression by the LGBT community?

CONTENTIONS OF THE PETITIONER

• The Petitioner had lamented that the individuals from the LGBT people group were denied the right to life ensured by Art. 21 of the Constitution of India.
• The S. 377 of The Indian Penal Code conflicted with the A. 14, 15 of the Indian Constitution as they, as an individual were dealt with inconsistent to other people and segregated on the premise of sex of an individual’s sexual accomplice, and they, had to not to pick an accomplice of their enjoying.
• 19 of The Indian Constitution out of totally was the most cut off, as the local area was denied to communicate their sexual personality through discourse and decision of an accomplice of their enjoying.
• Right to protection under the Fundamental Duties was being impacted as they were evaded by society on finding their specific decision of living.
• It was encouraged to the statement of the S. 377 of The Indian Penal Code, illegal and perceiving the right to sexuality, right to sexual independence, and right to the decision of the sexual accomplice to be essential for A. 21 of the Indian Constitution.

CONTENTIONS BY THE RESPONDENTS

• The Union of India, taking a nonpartisan side passed on the make a difference to the Hon’ble Court by commenting “It left the topic of the sacred legitimacy of Section 377 to the insight of the Court”. Furthermore, found out if the law set down in Suresh Kumar Koushal v. Naz Foundation, is right or not.
• Shri K. Radhakrishnan, senior guidance, for the benefit of intervenor-NGO, Trust God Ministries contended, there is no private freedom to mishandle one’s organs and that the hostile demonstrations prohibited by S. 377 are submitted by manhandling the organs. Such demonstrations, according to the intervenor, are undignified and overly critical to the protected idea of nobility and on the off chance that any infraction is caused to the idea of poise, it would add up to established off-base and sacred shamelessness.
• The people enjoying unnatural sexual demonstrations which have been made culpable under S. 377 are more helpless and defenseless against contracting HIV/AIDS, additionally, the level of commonness of AIDS in gay people is a lot more prominent than heteros, and the right to protection may not be stretched out to empower individuals to enjoy unnatural offenses and in this way contact AIDS.
• Mr. Suresh Kumar Koushal, intervenor, by a composed accommodation contended in that that the contention of the candidates that consensual demonstrations of grown-ups in private have been decriminalized in many regions of the planet and, hence, it should be decriminalized in India.
• On the occasion consenting demonstrations between two same-sex grown-ups are barred from the ambit of S. 377, then, at that point, a wedded lady would be delivered remediless under the IPC against her bi-sexual spouse and his consenting male accomplice enjoying any sexual demonstrations.
• For the benefit of Raza Academy, the intervenor, through its learned direction Mr. R.R Kishore, it was contended that homosexuality is against the nature request and S. 377 properly precludes it.

JUDGMENT

1. S. 377 of The Indian Penal Code, to the extent that it applied to the consensual sexual direct between the grown-ups in private was announced Unconstitutional.
2. The choice in the Suresh Kumar Koushal v. Naz Foundation (1) was overruled.
3. Basic privileges are accessible to the LGBT people group even though they comprise a minority.
4. S. 377 is violative of A. 14 being entirely discretionary, unclear, and has an unlawful goal.
5. S. 377 punishes an individual in light of their sexual direction and is consequently oppressive under A. 15.
6. S. 377 ignores the right to life and freedom provided by A. 21 which includes all parts of the option to live with poise, the right to protection, and the right to independence and self-assurance concerning the coziest choices of an individual.

CONCLUSION

The judgment for the situation was notable as it struck down the S. 377 of The Indian Penal Code and it allowed them to the Homosexuals and every one of the individuals from the LGBT people group to unreservedly put themselves out there and to stroll with a head high in the general public. They don’t need to fear being evaded by society and their right to security being pulverized and pronounced as hoodlums because they communicated their friendship and affections for their sexual accomplice.

This judgment was an overjoy for each individual from the LGBT people group and different Heterosexuals. The choice was valued even abroad by different NGOs and gatherings named The Human Rights Watch, in this manner acquiring global acknowledgment. Different translations were made to clarify what laws said and that they are to cling to and everybody in the general public is to be dealt with similarly.

References

1. Navtej Singh Johar vs Union Of India Ministry Of Law And … on 8 January, 2018. indiankanoon.org.[Online] https://indiankanoon.org/doc/119980704/.
2. Naz Foundation v. Govt. of NCT of Delhi. en.wikipedia.org. [Online] https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#:~:text=Naz%20Foundatio
   n%20v.%20Govt.%20of%20NCT%20of%20Delhi,violation%20of%20fundamental%20rights%20protected%20by%20India%27s%20Constitution..
3. Suresh Kumar Koushal and another v. Naz Foundation and Others. www.desikanoon.co.in. [Online] https://www.desikanoon.co.in/2014/02/suresh-kumar-koushal-anr-v-naz.html.

Written by Sara Agrawal student at Sinhgad Law College, Pune.

On Monday Justice Madras HC Justice Anand Venkatesh expressed his thoughts on homosexual relationships. When the judge was ruling on a petition filed by two lesbian girls asking for protection from their parents who were against their homosexual relationship.

Justice Anand Venkatesh shared his thoughts on LGBT Community while giving direction in a petition filed by a lesbian couple. He revealed that he belongs to the majority one who had hesitation in accepting same-sex relationship completely and also revealed that he had voluntarily taken counseling with Vidya Dinakaran, a Psychologist, for understanding the subject of homosexuality to pass the correct judgment. He explained that how difficult it was on his part to pass judgment on this as he has never known anyone personally who was in such a relationship or had never experienced personally such relationship and that’s the reason he had taken counseling because it helped him to understand reality and emotions behind such homosexual relationship and made him realize that he to need to change his notion.

He said the present case has given this court, not only an opportunity but also a vested responsibility to weigh by cause for inclusivity and justice against discrimination by the heretofore social understanding of morality and notions of tradition. As he also said, “ignorance is no justification for normalizing any form of discrimination”

In the following petition, the court has also issued guidelines to ensure that the LGBT person is not harassed by police and authorities

• The police, on compliance regarding girl/women/man missing cases which belong to the LGBT community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.
• The Ministry of Social Justice & empowerment must list NGOs along with the address, contact details, and services provided shall be published and revised on the official website. And must be published within 8 weeks from the date of order.
• If a person belonging to LGBT faces any issue may approach NGOs.
• The NGOs in consultation with MSJE, must maintain the confidentiality of persons who are approaching
• The problems relating to LGBT Community shall be addressed with the best-suited method depending upon the facts and circumstances of the case.
• Changes should be made in existing stay homes to accommodate a member of the LGBT Community who requires shelters.
• The Union and State Government shall endeavor to device such measures and policies for eliminating prejudice against LGBT Community.
• And creating awareness, the court suggests sensitization programs.

-Report by Riddhi Dubey