Tag: #LGBTQ

-Report by Anurag Sinha

As part of a petition contesting the blood donor standards, the Union Ministry of Health and Family Welfare has filed an affidavit challenging the guidelines’ outright restriction on transgender people, gay males, female sex workers, and others donating blood.

It has been reported that the National Blood Transfusion Council (NBTC, an organisation made up of medical and scientific professionals) is responsible for determining which groups of people are barred from being blood donors and that this conclusion is grounded in data from scientific studies.

The affidavit begins by arguing that the petition’s concerns are within the purview of the executive and must be evaluated from the perspective of public health rather than individual rights.

Facts:

The Public Interest Litigation by a member of the Transgender community. Thangjam Santa A lawsuit against Singh, represented by lawyer Anindita Pujari, was filed in federal court “Under the auspices of the Central Health Ministry, the National Blood Transfusion Council and the National Aids Control Organization released their 2017 Guidelines for Blood Donor Selection and Blood Donor Referral in October.

Guidelines clauses 12 and 51 exclude transgender people, gay males, and female sex workers from donating blood since they are a high-risk group for contracting HIV/AIDS. The Ministry now claims in its affidavit that there is sufficient information to show “HIV, Hepatitis B, and Hepatitis C diseases pose a threat for transgender people, men who have sex with males, and female sex workers. It claims that the petitioners haven’t contested the exclusion of people at risk for HIV, Hepatitis B, or Hepatitis C infections, but rather the inclusion of transgender people, gay males, and female sex workers in the ‘at risk’ category. The affidavit responded to the challenge by citing the following academic papers in an effort to back up its assertion that the named persons were, in fact, at risk.

Two gay men from Hyderabad have filed a new public interest litigation (PIL) with the Supreme Court of India, arguing for the legalisation of same-sex marriage in India under the Special Marriage Act of 1954.

Our Chief Justice DY. Chandrachud will preside over a Supreme Court bench today.

Supriyo Chakraborty and Abhay Dang, the petitioners, have been in a relationship for over a decade. Because of the epidemic, both couples and their families were reminded of life’s fragility. They were both infected with COVID during the second wave. As soon as they felt well, they made plans to celebrate their 9th anniversary with family and friends by having a wedding-cum-commitment ceremony. In December 2021, they conducted a commitment ceremony when their loved ones gave their approval to their partnership.

Plaintiff’s Contention:

Petitioners argued that the Special Marriage Act violates India’s constitution because it treats same-sex couples differently than those of the opposite sex by denying them the legal protections, social recognition, and legal standing that come with marriage. The petitioners state that the Indian Supreme Court has historically upheld the freedom to marry anyone regardless of caste or religion. The constitutional movement towards same-sex marriage is an extension of this trend. As the Supreme Court has already ruled in the Navtej Singh Johar and Puttaswamy cases that LGBTQ+ people have the same rights to equality, dignity, and privacy as any other citizen, the Petitioners contend that the right to marry the person of one’s choice should also apply to LGBTQ+ people.

Judgement:

The Special Marriage Act, Foreign Marriage Act, and Hindu Marriage Act have all been challenged in nine separate cases before the Delhi High Court and the Kerala High Court, all seeking to recognise same-sex marriage. The Ministry’s Deputy Solicitor General told the Kerala High Court earlier this month that preparations are being made to have all writ petitions transferred to the Supreme Court.

READ FULL JUDGEMENT: https://bit.ly/400UmAJ

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.

Gender is an essential part of human life. Our gender can have an impact on our life duties, rights, and responsibilities, as well as our decisions. These choices and actions are then limited by the laws that govern us, and laws play a significant role in pursuing our gender identity. Today, we live in a society where gender equality and civil rights are promoted by various cultures. To comprehend gender-related rights and legislation, however, one must first dismantle the gender idea. It is a socially and culturally constructed term that separates different qualities between men and women, as well as boys and girls, according to the United Nations. This has something to do with a person’s feminine and masculine qualities.

In fact, when determining gender, one must be aware of the differences in gender and sex definitions. Gender has a social dimension, but sex is a biological trait of a human being generated by the association of its chromosomes and hormones, as previously stated. Margaret Mead described the pioneering concept of separating sex and gender during ancient periods in her book Gender and Temperament in Three Primitive Societies. Gender equality is much more than just men and women. Gender-neutral policies are defined as laws and initiatives that have no unequal influence on multiple groups, whether negative or positive. However, if differences in the social and cultural settings of the groups are not taken into consideration when designing policy, gender equality might be reduced to gender discrimination. This could lead to a system that is useless and fruitless. In reality, the importance of gender equality is linked to civil rights. The United Nations supports a similar theory, stating that equality between men and women is required to uphold human rights.

Section 375 and 376 of the Indian Penal code, 1860. The author discusses the conviction of a man for the rape of a lady. Apart from rape laws, there has been a slew of other measures, such as the Domestic Violence Act of 2005, that are gender-specific and only affect women, such as sexual misconduct or non-consensual, where a perpetrator is invariably a man. Increased societal knowledge of these crimes reveals that the primary motivation for conducting a sexual assault or any form of violence may not only be to satisfy sexual cravings, but also to demonstrate the offenders’ power.

Before any positive outcome in society, we, as individuals, must comprehend the societal ramifications of various movements, society in general, and the backlash. As a result, in order to comprehend society and effect change, one must first grasp its history and evolution across time in order to tackle and address contemporary difficulties. It has been taken into account that, historically, the agenda of Indian women has always focused on improvements in the law concerning rape. Women have always struggled with the expanding concept of rape.

The Mathura rape case was one of the most well-known rulings in the world of law, and it was also the catalyst for numerous changes in criminal law. It is considered to be one of the most important instances in the realm of criminal law and the subject of rape. The Supreme Court ruled in this case that the young woman who had been raped by police officers had given her consent because there were no signs of wounds in the case and because the absence of wounds indicated agreement. Following this case, four law professors wrote an open letter to the Chief Justice of India, expressing their displeasure with the situation. This case sparked a trend in which the victim was no longer blamed and the guilt was shifted to the perpetrator. Another demand made by the protestors was for in-camera procedures and the non-disclosure of the identities of the rape victims.

Gender-neutrality is a nebulous term that has yet to be completely defined. So, what exactly does gender-neutrality entail?

To understand the preceding question, we must first comprehend the concept of “gender” The term “gender” has traditionally been defined as a person who falls into one of two categories: male or female. This concept, however, excludes the “transgender” third gender, which includes the “hijras” and “Kothi’s” as well as communities where people are born with both female and male organs or communities that do not define themselves as belonging to any gender.

The Binary Gender and Gender Neutrality

The fact that males and females are just two races is referred to as gender identity. It rejects the gender-sex divide as a concept. Furthermore, because it only believes in the existence of two genders, it argues that all human beings can act entirely in a feminine manner if they are female, and in a masculine manner if they are male. It completely rejects the idea of the third gender and implicitly criticizes the presence of LGBTQ people. The existence of these ideologies has a direct impact on the civil rights of persons from developing countries. Furthermore, it is particularly unjust to operate under the assumption that the LGBTQ culture does not exist. Only China has seen an increase in its LGBTQ population in recent years, with 3.5 percent of adults in the United States identifying as lesbian, gay, or bisexual. In 2017, about 1.1 million individuals aged 16 and up identified as LGBT and only China has seen an increase in its LGBTQ population in recent years. As a result, before enacting gender-neutral laws and legislation, it is necessary to recognize the meaning of identity. This is critical to ensure that no country draughts a gender-neutral law that favors only two genders while rejecting the others, as is the case with the gender-binary delusion.

It’s crucial to remember that gender isn’t limited to two or more widely recognized ideas. Gender neutrality does not mean promoting policies that favor women and force us to believe that men cannot be raped. Gender neutrality, as the name implies, is a neutral concept that should not be slanted against any group in the country. “It’s time we all understood gender as a spectrum, rather than two sets of conflicting values” Emma Watson stated more eloquently.

Why laws should be gender-neutral?

The initial presumption that women can never be predators stems from the fact that, despite the fact that the laws’ definition of rape mentions multiple ways in which an action could be constituted rape, they would still be perceived as penile-vaginal intercourse by the general public. Because men are often constructed stronger than women in biological respects, this gives the general public the impression that only men can establish dominance.

The second presumption stems from the idea that males can never be raped because they are excited by any sexual act, meaning that they have given their consent. This is to imply that arousal in the male body can be produced by a variety of factors, including the desire to be a willing participant. However, studies have shown that arousal can be produced by a variety of factors, including fear, embarrassment, and anxiety, all of which can lead to erections. There is now an increasing acceptance of the idea that male exploitation does happen. There have also been a few industrialized countries, such as Canada, Finland, Australia, the Republic of Ireland, and the majority of the states in the United States of America, that have accepted unbiased and gender-neutral legislation.

Although the Preamble of India emphasizes ideas of equity and social justice, certain policies and regulations are in direct opposition to these objectives. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redress) Act of 2013 focuses on safeguarding women from all kinds of workplace harassment. It further states that the purpose of this act is to protect women’s fundamental rights to equality and dignity. The point of dispute, however, is that in India, fundamental rights to equality and dignity are not gender-specific, and then how sexual abuse occurs in the workplace. This Act reaffirms the notion that violence is confined to women and that males, or any other group, should never be subjected to it.

In fact, rape is defined as an act of non-consensual sexual activity perpetrated against a woman under section 375 of the Indian Penal Code. This section is also based on the assumption that only a man can rape and only a woman can be raped. The notion of gender equality is supported by a number of judgments and statutes. Iceland, for example, was the first country to establish an equal pay clause in 2018, promoting the idea of a gender-neutral policy. Businesses with 25 or more employees must now submit certifications demonstrating compliance with the fair pay provision. This aims to eliminate the significant salary disparity between men and women, promoting gender equity and equality. In the view of the law, Article 14 states that everyone has the right to equality. This article claims that everyone, nevertheless their gender, is equal.

Article 15 prohibits separation on the basis of gender, i.e., no one can discriminate on the basis of a person’s or a case’s sex, creed, or any other type of discrimination.

Despite the fact that male assaults are less common than female assaults, it is important to recognize that guys are not exempt from the need for legislation to protect them. Equal rights for men in cases of sexual assault does not mean that women are deprived of their rights. Giving males a platform to speak out about their assault and the ability to file complaints would, on the other hand, lessen the toxic masculinity of asserting dominance, hence reducing assault on women, as an assertion of dominance has been the major source of violence against women.

The fear of being judged by society and fearing a backlash from a society that maintains the stigma that “men cannot be victims of the attack” is one of the reasons why men do not open out about being victims of sexual assault against them.

References

1. The Need for enacting Gender-Neutral Laws: A Critical Analysis – Lex Jura Law (wordpress.com)
2. Need for Gender Neutral Laws in India – iPleaders

This article is written by Vidushi Joshi student at UPES, Dehradun.

-Report by Riddhi Dubey

Madras High Court on Conversion therapy says Conversion therapy should be prohibited. Actions should be taken against the concerned professional involving themselves in any form or method of conversion therapy.

Petitioner’s Contention

The petitioners are a lesbian couple from Madurai. Their parents who are opposing their relationship trying their best to separate the couple. The couple with the support extended by certain NGOs and persons belonging to the queer community-managed data to secure accommodation. They want to continue their education and were also looking for job opportunities meanwhile the parents had filed missing complaints of them. And they also felt the threat to their safety and security from their parents. So the couple filed Writ Petition seeking protection from their parents.

Respondent’s Contention

The parents of the lesbian couple are more concerned about the stigma attached to the relationship in society and the consequences that may ensue on their family. And they are also more concerned about the safety and security of their daughters. They even stated that they would prefer their daughters to a life of celibacy than being in a same-sex relationship.

Judgment

On 7th June Justice Anand Venkatesh has passed a landmark judgment giving direction and recommendation to prohibit the attempt to cure people medically and seeing the queer community problem as a medical issue. He pointed out that ignorance is no justification for normalizing any discrimination. He also suggested comprehensive measures to sensitize the society and various branches of the state including the Police and judiciary to remove prejudices against the queer society.

Key Highlights

• In the above case to provide fairness and righteousness, Justice Anand Venkatesh himself took psychological counseling to understand the mindset and relationship of the queer community.
• This Madras High Court prohibited Conversion therapy which is a big relief for the LGBT Community.
• Tamil Nadu is set to become the first Indian state to ban ‘conversion therapy.

What expectation role was play by Justice Anand Venkatesh in the above matter?

Justice Anand Venkatesh revealed that he belonged 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.

What measures and suggestions were issued?

• Ensure availability of gender-neutral restrooms for the gender-nonconforming student.
• Change of name and gender on academic records for transgender persons.
• Inclusion of ‘transgender’ in addition to M and F gender columns in application forms for admission, competitive entrance exams, etc.
• Appointment of counselors who are LGBTQIA+ inclusive, for the staff and students to address grievances, if any, and to provide effective solutions for the same.

What directions were given to the police authority?

The court directed police authority to hold programs for the protection and prevention of offences in the queer community. And other programmers for awareness.

The one who issues belongingness in the queer community. Who can they approach?

People who face such issues of belonging should approach any of the enlisted NGOs for protecting their rights and seek help from them.