The month of June has historically been celebrated as 'Pride Month'. Justice Anand Venkatesh's recent judgment that extensively outlined protections afforded to the LGBTQIA+ community could not have come at a better time.
The petitioners in W.P. No. 7284 of 2021, filed in the High Court of Madras, were in a same-sex relationship and had fled their homes in Madurai to seek refuge at NGOs in Chennai. Owing to this, their respective families had filed First Information Reports ("FIR") claiming that they were missing and sought the police's help in locating the two women. After facing police interrogation and apprehending a threat to their safety and security, the petitioners approached the court seeking a direction to restrain the police from harassing them.
Coincidentally, Justice Anand Venkatesh was in the news earlier this year for passing an interim order in the very same petition. In the interim order, Justice Venkatesh was lauded for voluntarily enrolling himself in counselling sessions to combat his self-professed pre-conceived notions and better understand same-sex relationships before putting pen to paper and deciding on what reliefs the petitioners should be awarded. What followed was a judgment that will surely come to be described as a landmark decision for the LGBTQIA+ community.
Not only were the petitioners' prayers for protection from police harassment ultimately granted, but the 107 page judgment also tackled the harmful stereotypes that an overwhelming members of the community face on a day-to-day basis which ultimately have a lasting and damaging effect on the quality of lives they lead. After having discussions with members of the community during his self-imposed counselling period, Justice Venkatesh put his newfound knowledge to use by making various suggestions to the Central and State Governments for the advancement of the LGBTQIA+ community in general. Stating that "ignorance is no justification for normalizing any form of discrimination," Justice Venkatesh suggested that employers must also do their bit to help create a safer environment for the community.
Suggestions for Employers
Specifically, it was suggested that public and private workplaces and institutions implement the following measures:
- Create awareness programs and workshops with the help of LGBTQIA+ members/workers for inclusion of LGBTQIA+ community;
- Sensitize individuals on prohibition of discrimination as provided for in The Transgender Persons (Protection of Rights) Act, 2019 and relevant rules made thereunder;
- Make suitable changes in hiring policies for inclusivity;
- Set up and enforce Human Resource policies to make them LGBTQIA+ community-friendly;
- Support members of the LGBTQIA+ community in case of any grievance;
- Extend benefits such as insurance to members of the LGBTQIA+ community; and
- Adopt suitable policies that address non-discrimination on grounds of sexual orientation, including sexual harassment of persons belonging to the LGBTQIA+ community in the workplace.
The Transgender Persons (Protection of Rights) Act, 2019
As Justice Venkatesh's order touched upon the Transgender Persons (Protection of Rights) Act, 2019 ("Transgender Rights Act"), it would be worthwhile to reiterate the salient features of this legislation. The Transgender Rights Act defines 'transgender' as "a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or other such therapy) person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta." More importantly, the Transgender Rights Act is applicable to every 'establishment' which is defined to include every company or body corporate or association or body of individuals, firm, cooperative, society, association, trust, agency, institution and any other body or authority established, owned, controlled, or aided by the Central or State Government.
While the Transgender Rights Act has faced its own share of criticism, it has nevertheless established certain safeguards too. For instance, it prohibits persons or establishments from discriminating against a transgender person, and specifically prohibits such discrimination in the context of employment, whether it is for recruitment, promotion or other related issues. Establishments are also expected to implement a grievance redressal mechanism to deal with any complaints arising out of violations of the Transgender Rights Act. Such protective measures are unprecedented in India, and the provisions relating to employment, in particular, are a welcome change.
The way ahead
As an increasing number of countries broaden the scope of protections afforded to the LGBTQIA+ community, India is not too far behind. Admittedly, while Indian legislations still have a fair way to go before they achieve parity with their Western counterparts, the Transgender Rights Act is the only stand-alone piece of legislation that India has promulgated which specifically deals with the plight of members of the LGBTQIA+ community. For individuals who are not included in the definition of 'transgender person' and fall elsewhere in the spectrum, their only protection comes from judicial interpretations of extant law, such as the judgment authored by Justice Anand Venkatesh. Although the judgment contains only suggestions to employers, Justice Anand Venkatesh's words could very well be treated as a harbinger of change that will hopefully be given statutory enforcement in due time.
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