Tag: lgbtq

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.

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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.

INTRODUCTION

Gender is a word that cuts society, polity, and culture all over the world. Some languages do not have the word gender instead the word sex is used. Different terms are used regularly in theories of sexuality. Sex and gender may look identical but they are completely different terms. Sex generally means the biological and physiological characteristics of a person whereas gender usually refers to sociological, psychological, and cultural construct. This generally refers to the attributes associated with the person and it is not determined by biological characteristics. The word “Trans” means a general term used for the people who use a different gender identity other than their assigned sex by birth.  The person’s identity in their innate knowledge has changed and they think they are different from what they are expected to be born. Transgender people can be of any age, having different personal characteristics other than the views of how men and women should be.

HISTORY OF TRANSGENDERS

Transgender people were known to exist since ancient times. In Ancient Greece and Rome nearly 9000 to 3500 years ago, there were priests called Galli priests that some people believed to be Trans women. The Roman Emperor named Elagabalus who lived in 222 A.D performed sex reassignment surgery as he preferred to be a woman. In the Indian subcontinent, one of the oldest Veda named Rig Veda, mentions the ancient poems where their creation lacked all distinction and men were described with womb or breast. In the great Epics Ramayana and Mahabharata, there were trans men like Shikhandi. In Hinduism, there are transgender deities called Iravan, and Ardhanarishvara (half male and half female considered to be a fusion of Lord Shiva and Shakti), worshipped by the transgender community.

In the middle ages, Eleanor Rykener was arrested in the year 1394 in Europe where he had the body of a male but performed feminine roles, it was earlier seen as gender dysphoria. At present, trans people are recognized as the third gender and are accepted in society broadly. They are elected to public offices, legislatures, and even in courts but still, some countries refuse to recognize them and provide them with basic rights.

RIGHTS OF TRANSGENDERS

Our Constitution enshrines all the fundamental rights of the people irrespective of religion, sex, race, or gender. Part III of the Constitution deals with fundamental rights. Fundamental rights are provided for speech, education, trade, occupation, etc., the fundamental of all fundamental rights lies in Article 21 of the Constitution which deals with the right to life. The right to live with personal dignity to all individuals. Protection is also given to individuals against the violation of fundamental rights. The major issues faced by transgender people are discrimination, marital problems, hygienic problems, unemployment, and financial crisis. They are also sometimes not given the authority to vote. Transgenders are often neglected in the areas of property, adoption, marriage, etc. They end up begging in the street or even acting as a sex worker to survive. They are even refused to use bathrooms. They are also sexually assaulted in public places. Meanwhile, our constitution ensures that all laws are being enacted for the well-being of people in order to establish equality in social, economic, and political spheres; transgender people do not even get their necessities fulfilled. They are considered to be the weaker class and often exploited by the dominant class people. The Supreme Court in the landmark judgement of NALSA vs Union of India¹ case said that transgender can be legally a third gender and they are enshrined with all fundamental rights. But the laws for the benefit of the transgender community people remain unenforced.

TRANSGENDER MARRIAGE

Supreme Court in another landmark judgment Navtej Singh Johar vs Union of India² case held that Section 377 of the Indian Penal Code was decriminalized and it legalized the sexual relationship of all kinds of genders. In the Arun Kumar & Another vs Inspector General of Registration & Ors³ case the court said that under Section 5 of the Hindu Marriage Act, a bride can include a transgender person as well since the right to marriage is a fundamental right under Article 21 of the constitution. Despite the judgment, there is no provision for the right to marry in the Transgender Protection of Rights Bill. The Union government also stated that the Natvej case does not legalize homosexuality but it has decriminalized a particular way of human behaviour.

In Arun Kumar’s case, the term ‘bride’ covers the people who identify themselves as females. But what about those people who do not identify themselves as females? It is stated that if a transgender community undergoes Sex Reassignment Surgery to transit gender then they can fit into either male or female and a document must be submitted to the judicial magistrate with medical documents. Only then they will fit into the perception of male or female and only then they will be enabled to marry with their identity. In Mohammedan law, the perception of marriage is that it must be between the opposite gender for the procreation of children, and bearing children is a very crucial part of marriage. People who have undergone Sex Reassignment Surgery cannot reproduce children so under Mohammedan law it is not considered to be a valid marriage.

The biggest challenge faced by the transgender community for a valid marriage is the procreation of children. This construct that the society accepts two people as lawfully married for the procreation of the children has hindered transgender people in securing the fundamental right to marry. In the Shakthi Vahini vs Union of India⁴ case, it was stated that every individual has constitutional freedom to choose someone whom they wish to marry. The judgments pronounced have not inspired amendments in the provisions of the statute which is the sole reason why there is trouble in recognizing transgender marriage in India. On 1^st April 2022, MP Supriya Sule from the Congress party introduced a bill to Lok Sabha to legalize same-sex marriage under the Special Marriage Act. This bill provides rights to same-sex couples as opposite-sex couples have.

TRANSGENDER MARRIAGE IN OTHER COUNTRIES

In the United States of America, on June 26, 2015, a landmark judgment was passed and in the fourteenth amendment, a fundamental right was guaranteed to same-sex couples, and the government legally recognized same-sex couples. The United Kingdom Gender Recognition Act, 2004 allowed people to get a new birth certificate that recognizes their acquired gender so that they can get legal rights.  In New Zealand, the Civil Union Act, of 2004  was established and couples of both opposite and same-sex gender can get all civil rights including marriage rights. South Africa is considered a prime example of a country that gave recognition to the transgender community. They once considered this community a taboo community but now it has been dramatically changed and marriage rights are given to all the communities irrespective of their gender. The constitutional court of South Africa stated that the relationships are much more than procreation and the love between them cannot be determined by the sex of the parties. 

In 2006, they passed a law solemnizing the union of same-sex couples. Some countries like Saudi Arabia still do not recognize transgender rights. Saudi law follows strict Muslim ideology that considers homosexuality immoral and severe punishment is given to homosexual people. India must also incorporate the right of marriage in the statuary law. There must not be only marriage rights but there must be provisions for adoption, divorce, inheritance, etc. Transgender couples must be provided with the legal right to adopt children.

CONCLUSION

Transgenders face a lot of challenges in society be it physical, political, economic, or social, there is no measure of the magnitude of their problem. These people faced some kind of harassment for their sexual identity. There is also less awareness among transgender people about the fundamental rights vested upon them. The current law for transgenders is inadequate as they need more amendments so that they can live a dignified life. Law is dynamic, it needs constant change so the concept of marriage must be changed; marriage is not for the procreation of children it is much more than that.  The transgender community must not be discriminated against the society and they are also an equal part of this society. They need a dignified and happy life with laws protecting their well-being.

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REFERENCES

1. SC, Civil Writ Petition No. 400 Of 2012.
2. SC, Criminal Writ Petition No.76 Of 2016.
3. Wp(Md)No.4125 /19,3220/19.
4. SC, Civil Writ Petition No 231 Of 2010.

This article is written by Sree Lekshmi B J, a third-year law student of Sastra University, Thanjavur.