Devesh Singh, Army Institute of Law, Mohali
Manvi Goel, Jindal Global Law School
Nithya Sowmya M, Tamil Nadu National Law University
Puru Pratap Singh, GNLU
We have been listening to instances of #METOO movement for a very long time, which also included sexual harassment cases at workplace. As a result, it gave rise to several legislations in our country such as the landmark judgment of Vishakha and Ors v State of Rajasthan, the Rights of persons with Disabilities Act, 2016 and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 to prevent any kind of discrimination amongst different categories of employees. However, there has seldom been any legislation that specifically prevented harassment against the LGBTQ community.
Be it India or any other country in the world, the LGBTQ community has faced bullying or homophobic harassment. Further, according to a research conducted by Government Equalities Office in America, 7 out of 10 LGBTQ people have experienced sexual harassment at work, 47% of LGBTQ people have heard comments of sexual nature, and over 42% of work peers had made a joke on their sex life.
Having said that, in the judgement of National Legal Service Authority v. Union of India and Ors, the supreme court directed the government to take essential steps that would safeguard the constitutional rights of the transgender. As laudable as this judgement was, it often becomes important to actually act on them, to lay stringent laws that would make the workers in workplace think twice before they make non- consensual moves on the people just because they have different sexual choices.
Social reasons and stigmas attached to LGBTQ Community:
Under this subtopic, we will mostly be focusing on why this community is the most vulnerable and how it affects their lives.
The social stigma related to homosexuality is that society has accepted heterosexuality as the only way of expressing one’s sexuality. Historically speaking, every child had a mother and a father and with the introduction of homosexuality, it challenged the pre-conceived notions of the people. They wondered how one child could have “two mothers” or “two fathers” or how can somebody have a different sexual preference altogether, almost losing a balance and questioning the entire system of human kind. Thus, making the LGBTQ community vulnerable to bizarre social situations as well as discrimination in the work place.
This affects the people belonging to this community extensively. According to a survey conducted by Centre for American Progress:
¨68.5 percent reported that discrimination at least somewhat negatively affected their psychological well-being.
¨43.7 percent reported that discrimination negatively impacted their physical well-being.
¨52.8 percent reported that discrimination negatively impacted their work environment.
Facts and figures related to sexual harassment at workplace: LGBTQ Community
It is no surprise that the LGBTQ community suffers a great threat when it comes to sexual harassment cases a survey found that 70% of the LGBTQ people are sexually harassed at workplace. Which is far more than the numbers of women and men combined together.
A survey published on the International Day Against Homophobia, Transphobia, and Biphobiafound that more than two in five LGBTQ people said they had experienced unwelcomed comments on their sexual life. Different kinds of sexual harassment cases on the LGBTQ people can be seen from the table below.
One of the most surprising fact one will find is that even though the cases of harassment is so high yet the number of incidents reported is drastically low this is also one of the major issues behind these growing trends in our society.
A study conducted by the LGBT Foundation found that 68% of LGBT people surveyed reported being sexually harassed at work, yet two thirds didn't report it to their employer. One in four of those who didn’t report were prevented from raising the issue with their employer by their fear of being 'outed' at work.
Lack of Government policies/ Biased Law
An example of how biased the law is specially in India against the LGBTQ community can be assumed from the famous case of Navtej Singh Johar v. UOI where the constitutional validity of Sec 377 of Indian Penal Code 1860 was challenged, and hence when it comes to laws for the protection of LGBTQ community at workplaces they meet the same fate.
When it comes to sexual harassment the thought is that the laws must be to protect women for e.g. the Sexual harassment of women at workplace (Prevention, prohibition and Redressal) Act, 2013 the male strata majorly the LGBTQ strata is left out. Provisions of this act only recognize the complainant to be an “aggrieved women” under Sec 2(a), thereby excluding the LGBTQ people. Therefore, the POSH Act 2013 is not applicable to men or transgender. However, if the transgender identifies herself as women only then she can lodge a complaint under POSH Act 2013.
Further Sec 354A of IPC states that a man making a physical contact and advances involving unwelcomed and explicit sexual overturns or demanding sexual favors or making sexually colored remarks shall be guilty of the offence of sexual harassment, which is again discriminatory as the offender can only be a male.
Unlike the crimes against women, men and children the government of india does not publish any statistical data regarding the crimes against the LGBTQ community which is itself discriminatory in nature. The history surely owes an apology to the members of this community.
WHAT CAN BE DONE/ SUGGESTIONS TO IMPROVE THEIR CONDITIONS
Unlike women, men and children, there are no specific law and order to protect the LGBTQ community people. Those people were facing lot of discrimination in the society and they have been harassed at every place by means of their sexual identity. Even their livelihood everything is in a big question mark. Especially when they went to file some complaints regarding their problem to police they have been forced to prove their sex first which is because of the lack of proper law and biased law.
There are lot of organisations and trusts which look into the problems of women, men and children but regarding the LGBTQ community there are only few and they didn’t have any specific laws such as the laws for women to address harassment at workplace. Even the Transgender Persons (Protection of Rights) Act, 2019 [“2019 Act”], got assent from the president and came into force, it has rectified major issues but the discrimination in addressing the sexual offences against the members of LGBTQ was not drawn any particular attention.
With respect to the 2019 Act, the wording of this provision downplays the graveness of sexual offences including (but not limited to rape) just because they have been committed against a transgender person and is treated as a petty offence. It must, however, be understood that the laws should be gender neutrality which aims to widen the ambit and extend the protection of law to females, males and transgender persons alike. Furthermore, it strikes at the preconceived notion as regards to the perpetrator in cases of rape and seeks to punish all such persons guilty of the crime of rape, irrespective of their gender.
Now the only well known act which is likely to help them was the 2019 act which is looking into various aspects for their welfare but it need to look more broadly and it should change its perspective lot and need an amendment to rectify the mistakes as well as bring down new things which will make everyone to recognize them as like men and women. “We are the beggars, we are the sex workers, we don’t have any rights in this country, then why isn’t the bill giving us reservations?” asks Banu who is a transgender. No one can answer to her question. So this society set up has to be changed, like she questioned why they can’t give reservations, particular laws, special rights and provisions unlike the men and women. Just think! The justice and the equality should be available for every human being irrespective of their gender.
 Vishaka and others v. State of Rajasthan and others (1997) 6 SCC 241  The Right of Person with Disabilities Act, 2016  Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017  Government Equalities Office,2007 (unit of British Government)  National Legal Service Authority v. Union of India and Ors, AIR 2014 SC 1863  Centre for American Progress,2003  Survey of LGBTQ, The guardian, 9 July, 2020, at 9 PM, https://www.google.com/amp/s/amp.theguardian.com/uk-news/2019/may/17/survey-finds-70-of-lgbt-people-sexually-harassed-at-work  Sexual harassment cases, IDAHTB, 9 July, 2020, at 9, https://may17.org/  Evidence of sexual harassment, LGBT Foundation, 9 July 2020, at 9 PM,https://lgbt.foundation/evidence/sexual-harassment-of-lgbt-people-in-the-workplace/22  Navtej Singh Johar v. UOI W.P.(Crl) 76 2016.  Ram Kinkar Singh, DCW sets up special cell for LGBTQ community, India Today, (New Delhi, July 1 2019), , accessed on 10 July 2020,https://www.indiatoday.in/india/story/dcw-sets-up-special-cell-for-lgbtq-community-1559908-2019-07-01  Rishabh Chhabaria, Abhiyan Tripathi, Transgenders and Rape Law: Is equal protection of law still a pipe dream?, The Leaflet, (May 23 2020), accessed on 10 July 2020,https://theleaflet.in/transgenders-and-rape-law-is-equal-protection-of-law-still-a-pipe-dream/  Fatima Khan, Year after homosexuality was decriminalised, equality a distant dream for LGBTQ community, The Print, (6 September 2019)accessed on 10 July 2020,https://theprint.in/india/year-after-homosexuality-was-decriminalised-equality-a-distant-dream-for-lgbtq-community/286312/