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
- Naz Foundation Govt. v. NCT of Delhi, 2009
- Navtej Singh Johar vs Union Of India Ministry Of Law, 2018
- UK Workplace Equality Index, n.d.
- Diversity wins: How inclusion matters, 2020
- 303 Creative v. Elenis: Amicus Brief, 2022
This article is written by Puneet Kaur, a second-year student at Amity University Punjab.
