For the past two decades, the rights of LGBTQ+ people in India have been reaffirmed to be on par with the rights of cisgender, heterosexual people, as enshrined under the Indian Constitution. With the growth of the Indian economy, questions emerge as to whether the Indian LGBTQ+ community is enjoying equal access to employment opportunities in this developing nation.
RECOGNITION OF LGBTQ+ EMPLOYMENT RIGHTS IN INDIA
In 2014, the Indian Supreme Court, in NALSA v. Union of India, recognised transgender people as “third gender” under the Indian Constitution. It acknowledged the unfair treatment faced by transgender people in various areas of life, including employment, and held that discrimination on the basis of gender identity is constitutionally prohibited. Following this judgment, the Indian parliament passed the Transgender Persons (Protection of Rights) Act, 2019 (Transgender Act).
Section 3 of the Transgender Act prohibits the government as well as private persons from unfairly discriminating against transgender people in employment relationships, including by denying or terminating employment on the basis of gender identity. Section 9 of the Transgender Act specifically bestows protection against discrimination in employment.
In related changes to protect against discrimation based on sexual identity, the historic judgment of Navtej Singh Johar & Ors v. Union of India decriminalised homosexuality in India two years ago. The Navtej Johar case acknowledged that discrimination on the basis of sex includes discrimination against homosexual people and violates their fundamental rights to non-discrimination, equality, and dignity, as enshrined in the Indian Constitution.
Further, in the case of Southern Railway v. Rangachari, 1962 SCR (2) 586, the Indian Supreme Court held that articles 16(1) and (2) of the Indian Constitution prohibit discrimination in all matters of employment by the state, whereas, in KS Puttaswamy v. Union of India, 2017 SCC (1) 10, the Supreme Court unanimously ruled that a person's sexual orientation is a private issue, and the right to individual privacy is a fundamental right under article 21 of the Indian Constitution.
INTERNATIONAL LAWS AND STRIDES
Article 7 of the Universal Declaration of Human Rights (UDHR) states that “all are equal before the law and entitled to equal protection without discrimination”. Article 23(1) of the UDHR further contemplates protection against unemployment, by recognising the rights to work, free choice of employment, and just and favourable conditions of work, along with the protection against unemployment.
Resolution 32/2 of the Human Rights Council, which was adopted on 30 June 2016, specifically provides for “protection against discrimination based on sexual orientation and gender identity”.
In addition, article 2 of the International Labour Organisation’s Discrimination (Employment and Occupation) Convention, 1958 promotes equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof through a national policy.
A recent development for LGBTQ+ labour rights took place in the United States, when the US Supreme Court held that employees cannot be fired on the basis of their sexual orientation or gender identity in the Boston v. Clayton County case. It also held that the prohibition of discrimination on the basis of sex includes the prohibition of discrimination against transgender and homosexual people under Title VII of the Civil Rights Act, 1964.
DEARTH OF SPECIFIC PROVISIONS IN INDIA
In India, although the Transgender Act has been promulgated for the legal protection of transgender people, including their rights in the employment context, it does not put forth any penalty for non-compliance with labour rights. This is contrary to the legal concept of ubi jus ibi remedium, meaning “where there is a right, there is a remedy”. This makes the rights afforded by the Transgender Act are somewhat toothless and theoretical.
Section 18 of the Transgender Act only imposes a punishment of two years for the offence of physical or sexual abuse of a transgender person. However, the Transgender Act has no definition or explanation of what would constitute “sexual abuse” in this context.
In some cases, transgender people are fired for showing “unlawful behaviour,” “deviant mischief,” or simply for being non-stereotypical, resulting in employment of less than 6% of transgender people in the formal sector and almost nil in government jobs. In addition, no guidelines have been issued for the prevention of sexual harassment of transgender people in workplaces, compared to the guidelines created by the Indian landmark case of Vishaka v. State of Rajasthan, which work to prevent sexual harassment of women in the workplace.
Looking at the broader LGBTQ+ community, there is no law to prohibit discrimination on the basis of sexual orientation in the context of private employment or work fields outside the scope of government positions. Article 13 of the Indian Constitution specifies that the fundamental rights can only be exercised against the government. India, unlike countries such as Australia, lacks a specific set of laws explicitly prohibiting discrimination on the basis of sexual orientation.
RECOMMENDATIONS
It is recommended that amendments be made to the Equal Remuneration Act and Maternity Benefits Act for the inclusion of LGBTQ+ people within the workplace. Equal remuneration should be paid to all, irrespective of their gender identity or sexual orientation, and policies need to be put in place to achieve equal opportunity and access to employment.
The rights of LGBTQ+ people are being recognised step-by-step around the world. Multinational companies such as YouTube, Microsoft, Sodexo India, IBM, Infosys, and Barclays, among others, welcomed the LGBTQ+ cause in India not just as supporters, but as proper allies. A diverse workforce not only creates sustainable organisations, but also encourages innovation.
At present, India needs to promulgate and amend certain laws and regulations in order to protect workplace rights for the LGBTQ+ community. A specific framework to embrace the identity of all people and their rights is required, particularly for the private sector. Immediate steps need to be taken to bolster protection, which includes sensitisation programmes and proper enforcement of existing rights. Access to a decent livelihood and equal opportunities is critical to foster equality in India’s developing economy and society at large.
Prajwal is a B.A. LL.B (Hons.) student at National Law University, Odisha of batch (2019-2024). He is interested in Criminal law and Constitutional Law at the intersection of human rights. He is a keen traveler and a sports enthusiast as well.
Taniya is a B.A. LL.B (Hons.) student at National Law University, Odisha of batch (2019-2024). She has an interest in Human rights, Criminal Law, Constitutional law, Arbitration, International laws, etc. and likes to write on these subjects regularly to spread awareness.
