(This story was first published on 23 June 2021. It has been republished from The Quint’s archives to mark Pride Month.)
The LGBTQ+ community for a very long period of time was deprived of their basic human rights.
Any sexual orientation apart from heterosexuality was seen as a disease or abnormality. The Indian Penal Code, 1860 under Section 377, up until 2018, was one such regressive piece of legislation.
India’s erstwhile colonial rulers, who conferred upon us Section 377 in the first place, had decriminalised homosexuality in 1957 in the ‘Report of Committee on Homosexual Offences and Prostitution”.
The Indian Courts on several occasions have decided on the legality and validity of Section 377 with an idealistic approach. However, there have been cases where the Courts have gradually acknowledged the rights of homosexuals as well.
Decriminalisation Does not Equal Upliftment
Even though homosexuality has been decriminalised, this mere fact does not effortlessly change the status quo for the LGBTQ+ community. Upliftment and recognition are not facilitated just by stating that a community is not liable for criminal prosecution anymore.
There is a Transgender Act in existence, but the same is just a cosmetic measure drafted by the legislators, as the Act does not provide penalties for non-compliance with labour rights, thus rendering it ineffective.
Proper ‘Anti-Discrimination’ Code Needed
Therefore, a special legislation needs to be carved out which safeguards and ensures the rights of the vulnerable community.
Further, there is no law protecting or preventing discrimination on the basis of sexual orientation in the private sector, which affects job security and stability of the entire LGBTQ+ community, and therefore a proper ‘Anti-Discrimination Code’ needs to be drafted.
It is important to bring comprehensive guidelines or legislation for protecting the LGBTQ+ community from any sort of harassment in the workplace, as was laid down by the Supreme Court in the case of ‘Vishakha v. State of Rajasthan’ for women.
‘The Protection of Civil Rights Act, 1955’ of India is only confined to protection from discrimination based on untouchability (caste-system) and disability, but does not say anything about the discrimination faced by the LGBTQ+ community.
Learnings From Norway
Norway, like other Scandinavian countries, has enacted laws that are LGBTQ+ friendly. One could dedicate a separate paper to analysing the plethora of progressive enactments adopted by the Norwegians.[i]
The Gender Equality Act which has been proposed in the US, and is still a distant dream in India, is already a full-fledged and well-drafted Act in Norway. There are other legislations carved out, to make sure that the community members are treated equally in all the spheres of life - such as hate speech against the LGBTQ+ community, punishable with a term of 6 months.
Even the Norwegian Marriage Act is gender-neutral and thus, any person of any sexual orientation, can marry another. The LGBTQ+ community can avail the services of social security just as any other ordinary citizen.
Discrimination at the workplace is prohibited under the Gender Equality Act and lessons on gender identity and sexual orientation are part of the school curriculum.
LGBTQ+ persons have access to the same medical facilities as others. The only lacuna in the laws in Norway, is that not all of them are extended to transgenders. Norway is the quintessential example of how equality in varied aspects of life must be ensured to the LGBTQ+ community members, and can be a key takeaway for Indian legislators.
USA’s Strides Towards Gender Equality
The Supreme Court of the United States, in the case of Obergefell v. Hodges[i] gave rights to homosexual couples, establishing their freedom to marry in any territory. This is a positive step towards making laws more friendly for oppressed communities. No such legislation or judgment exists in India.
Further in the recent judgment delivered by the US Supreme Court in the case of Altitude Express, Inc. v. Zarda[ii], it was ruled that people cannot be fired from their jobs merely because of their sexual orientation or sexuality.
In the US, a federal law- ‘The Equality Act’- has been proposed, which shall give various rights to the LGBTQ community in varied aspects of life such as employment, education, housing, access to public places, etc. This Act shall amend existing laws such as Civil Rights Act, Equal Credit Opportunity Act, Fair Housing Act, etc. but the same has not been passed yet.[iii]
Such a judgment or legislation, which has a wide scope - to incorporate varied aspects of life and make laws equal for homosexuals - is a dream that thousands of people are working towards, in India.
There are various policies like the Model Transgender Employment Policy, which are followed by the offices in the US to prevent workplace discrimination. They provide for specific policies which include: using names or pronouns corresponding to their gender identity, separate restroom and locker facility inter alia.[i]
Australia, Canada and New Zealand Safeguard Queer Rights Too
In addition to both the countries, Australia’s Human Rights (Sexual Conduct) Act, 1994, states that “sexual conduct involving only consenting adults (18 years or over) acting in private would not be subject to arbitrary interference by law enforcement.”
Another Act with the same principle is the Human Rights and Equal Opportunity Commission Act, 1986 which creates a commission to investigate complaints of discrimination in employment and occupation on various grounds, including sexual orientation. Further, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013 recently added marital or relationship status, sexual orientation, gender identity, and intersex status, as protected attributes.
In New Zealand, the Human Rights Act, 1993, outlawed discrimination on the grounds of sexual orientation and implicitly on gender identity/expression. It has been legal for gay, lesbian, bisexual and transgender persons to serve in the military as well.
The Canadian Human Rights Act added gender identity and gender expression to the list of prohibited grounds of discrimination. A revision was made to the Criminal Code with respect to the same. In the case of Douglas v. Canada,[i] the court allowed the LGBTQ+ community members to serve in the military.
It is high time that India drafts a legislation that actively prohibits discrimination on the basis of gender identity, sexual orientation or intersex status, etc, similar to these countries.
Decriminalisation Only A Starting Point for India
The judgment decriminalising homosexuality delivered by the Supreme Court of India in Navtej Singh Johar v. Union of India, set the motion for an egalitarian society, where people of all sexual orientations are respected and treated equally. The scope of the judgment was narrow, bringing to light the need for better laws to address these issues. Decriminalisation was only the first step in reversing the historical oppression and marginalisation of the LGBTQ+ community and the stigma attached to being part of it.
There is a need for better laws and policies as a way forward.
A Commission can be created to recommend amendments in the existing Acts such as Workmen’s Compensations Act, 1923, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Code of Wages Act, 2019 and ensuring new Acts include and protect the LGBTQ+ community.
An LGBTQ+ Employment Code which includes private-sector employees under it can be created to deal with issues of wrongful termination, discrimination, equal pay, benefits, etc. Reservation should also be given to the LGBTQ+ community in public education and employment in compliance with the NALSA judgment. A commission can be established to address complaints related to discrimination against LGBTQ+ individuals at the workplace. Equality should also be ensured in employment by opening up all defense services for transgenders.
There is a need to carve out specific policies for offices and places of employment to incorporate a more LGBTQ+ friendly space, where the community members are treated with equality, and their needs are taken care of.
This can be in the form of separate restrooms, usage of gender-sensitive pronouns, anti- workplace discrimination policies, etc.
Pride, as we celebrate it today—an amalgamation of identity, colour, happiness and acceptance—is rooted in a history of bloodshed and stigmatisation. From declaring homosexuality ‘immoral’, choosing not to ban conversion therapy, enabling police violence to leaving people to die because of stigma during the devastating AIDS epidemic; society has the blood of generations of gay men, women and others on its hands, and the process of healing has just begun.
[i]WOLFENDEN, Report of the Committee on Homosexual Offences and Prostitution, 247, 1957 (UK)
[i]576 U.S. 644.
[ii] 590 U.S. (2020).
(Trisha Shreyashi is a corporate-commercial lawyer. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)