A society where it took generations to decriminalise homosexuality is standing on a pedestal where rights have been granted to the queer community as per the law but still struggles to establish their own identity every day. Some attempts have been made by the Hon'ble Apex Court to guarantee the rights of the queer community in recent years.
Making law and implementing it again are two entirely separate things. The central government made legislation and its corresponding rules to ensure nondiscrimination in employment for the queer community; the act was named The Transgender Persons (Protection of Rights) Act, 2019 (the Transgender Act, 2019, for brevity).
Now the question is whether the protection can be mandatorily provided under private employment, and if yes, to what extent? If no, then why not?
Over the past few years, a lesson has been learnt that queer community has been deprived of their rights since time immemorial but always kept quiet owing to the shackles of society. They have been equally prone to sexual and mental harassment as women and children. For women and children, special legislations have been drafted like the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Also, the IPC and Constitution provisions categorically ensure women's and children's rights.
Through this article, an attempt has been made to understand the laws and policies existing, if any, in India for the protection of sexual harassment of queer community at the workplace and, in the absence of any statute or policy, what alternative remedy is available with the queer community.
SOCIETAL NORMS & QUEER VULNERABILITY
Societal norms in our country are not very much inclined towards the queer group. Different derogatory names are given to them in other languages. Their family members sometimes refuse to acknowledge them and their identity, let alone grant them equal rights. What will the "SOCIETY" say? Who will give you a job? Who will marry you? Everybody will laugh at you, and what not? The one who faces it knows what all they must undergo to mark their presence in the "SOCIETY".
Recently, a positive trend has been noticed in a society where the queer community is given some respect, jobs, remunerations, and status. Parents, family, and friends have started accepting queer people for who they are. Even if this whole process was slow, the gradual drift recently seen is giving some ray of hope to the queer for the future.
Devoir of ensuring basic human rights is on the organisation where the employee works. In the public sector, if the protection granted by our Constitution is violated, the victim can approach the courts; the same is not the case in private sector employment (unless prescribed otherwise).
In 2013, a legislation specifically discussed the Prohibition, Prevention, and Redressal of Sexual Harassment of Women in the workplace. The POSH Act mainly talked about 'WOMEN', which is good, but can a similar law be laid down for the queer group? Ardent is to note that. The latest Labor Code, as amended, talks about equal remuneration to all but again, no specific provision can be seen.
Series of LGBTQ+ cases starting from declaring them as 'third gender', decriminalising homosexuality, and recognising sexual orientation as a matter of personal choice, it is evident that the path chosen by the Hon'ble courts will lead the community towards a better time.
In numerous instances, our Hon'ble Supreme Court has extended workplace protections to the queer group in public sectors. The Transgender Act, 2019 provides for certain protections, recognises the identity of transgender persons, welfare measures by the government, non-discrimination in employment, penalties and most importantly, establishes a National Council for Transgender Persons. The act does not discriminate in public or private employment since the term is 'employment'. Ergo it becomes a matter of interpretation. The penalty provided under this statute is a maximum of two years imprisonment for sexual abuse, yet the term 'sexual abuse' has not been defined.
Article 16(2) of the Constitution bars discrimination based on religion, race, sex, descent, place of birth, or residence and Article 15(2) ensures access to public places. However, Article 13 mandates that fundamental rights can be wielded only against the STATE, as defined in Article 12. Laws for the time being in force are not strict enough to tackle sexual harassment at the workplace. The options for sexual protection of queer are reduced in one way or other.
SHIFTING MINDSET IN PRIVATE EMPLOYMENT
In private employment, almost everything is subject to company policy, implying that rights protection lies ultimately in company management's hands. Companies like YouTube, Microsoft, IBM, and Barclays are helping queer to rise and shine in the marketplace. To maintain sustainability in the entity, it is crucial to have a diversified portfolio that encourages creativity and innovation in the workplace.
Just as prescribed under the POSH Act, an organisation with more than ten employees can form a committee responsible for preventing sexual harassment of the queers. With a proper redressal mechanism, nondiscrimination can be warranted. True acceptance of queer can be a steppingstone toward the economic and social growth of the nation. Few other steps can be taken by the company while providing a better work environment to the queer community, like-
- Forming a Grievance or Redressal Committee (particularly for the queer community), including at least 50% of queer members.
- Inserting provision of anonymous complaints to the committee and protecting the identity of witnesses.
- Recruiting a fixed number of queer percentages in the company.
- A dedicated policy for protection and nondiscrimination of queer groups.
- Organising regular workshops and seminars to sensitise other employees.
- Giving maternity and paternity benefits.
- Establishing counselling centres for better mental health.
Ingrained with 'n' number of prejudices towards sexualities other than men and women, 'We the People' must have an ethos to empathise with the queer community as a matter of social understanding. Legally talking, every soul is entitled to basic human rights irrespective of caste, sex, nationality, race, residence etc. The queer community must not be subjected to any harassment. Legislation can play a decisive role in eradicating workplace harassment of LGBTQ+, but it is unlikely that the government will enact such a law for various political reasons. Eyes are set on the judiciary because people still believe that justice is delivered, even if not immediately, but it is. To sum up, it can be concluded that it is essential to make laws to prevent sexual harassment of the queer at the workplace. If not done timely will lead to economic, physical, and mental loss to the nation.
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