Victoriya is a third-year BA LLB student at Government Law College, Vellore, affiliated with Tamil Nadu Dr. Ambedkar Law University, Chennai. Read More
Abstract:
Sexual Importunity remains a pervasive and deeply settled issue, impacting individuals across all demographics, including members of the LGBTQ community. While the Protection of Sexual Harassment at Workplace Act 2023 (POSH Act) serves as a critical frame to insure a safe plant for women, its compass and perpetration frequently fail to address the unique challenges faced by LGBTQ individualities. This gap stems from the Act’s focus on a double understanding of gender and its limited description of sexual importunity, which excludes non-binary individualities and same-coitus importunity.
This paper explores these failings, drawing upon empirical substantiation from the Humsafar Trust Surveys and Reports (2020 and 2022), The NCRB report (2019 – 2020) and The IJCH Report (2019) and crucial judicial pronouncements like NALSA vs. Union of India, Suresh Kumar Koushal vs. Naz Foundation. It highlights the systemic walls LGBTQ individualities face in reporting importunity, including fear of retribution, smirch and the absence of inclusive legal protections.
The paper argues for a critical overhaul of the POSH Act, recommending emendations that explicitly fete and cover individualities of all gender individualities and sexual exposures. It underscores the need for a broader description of sexual importunity and the establishment of mechanisms that promote LGBTQ sensitive plant programs. Also, It advocates for obligatory diversity training to challenge prejudices and foster inclusive societies in professional spaces.
By addressing these gaps, the paper envisions a legal frame that ensures justice and quality for LGBTQ individualities. Similar reforms are essential not only for creating safer workplaces but also for advancing a more inclusive and indifferent society. Empowering the LGBTQ community within the dimension of the POSH Act would mark a significant step toward achieving true gender and social justice in India.
Introduction:
Evidence of same-sex relationships and third-gender identities can be found in ancient cultures such as Greece, Rome, Egypt, China, and India. For example, in India, third-gender individuals were recognized as Hijras, and in Native American cultures, they were known as Two-Spirit people.
In the 17th and 18th centuries, same-sex relationships were punishable by death, but by the 19th and 20th centuries, organizations emerged in Europe and North America to advocate for the rights of the LGBTQ+ community.
Today, we recognize that ancient civilizations acknowledged and respected diverse gender identities and same-sex relationships. Since its inception, many members of the community have been persecuted. For example, being insulted by the community, ostracized by one’s own family, and isolated from the community are not only such social problems but many are subjected to sexual harassment. And the forms and cases of sexual harassment against the LGBTQ+ community have also been changing over the past 13 years (2005 – 2023).
The Prevention of Sexual Harassment at Workplace Act 2023 was brought in to combat such workplace sexual harassment against the LGBTQ community and against women. On 9 December 2023, the POSH Act was enacted. Which has not been amended once since its enactment, introduced several clear mechanisms. Some of them,
- Internal Complaints System (its structure)
- Complaint process
- Inquiry & Recommendations
- Disciplinary action
- Appeal Procedures
This article aims to illustrate, with statistics and relevant cases, the sexist attitudes faced by the LGBTQ+ community and the challenges and opportunities under the POSH Act to prevent them.
Key words: POSH Act, LGBTQ Rights, Sexual harassment, Inclusive Workplace, Gender Identity.
Sexual Harassment in the LGBTQ Community:
As mentioned in the introduction section, people belonging to the community of LGBTQ are facing innumerable challenges that hinder their integration into society. A survey conducted in 2022 by Humsafar Trust, an organization formed to protect the rights of the LGBTQ community, made it clear that the LGBTQ community faces sexual harassment in the following forms.[1]
From the results of the above survey, it is very clear that the people of LGBTQ are subjected to
- Sexual harassment by their families
- Discrimination in the workplace
- Abuse of power by the authorities
- Health status disclosure pressure
- Blackmails on social media.
The above types of sexual harassment are affecting the physical and mental health of LGBTQ individuals. It was urged that the government must issue take action on this.[2][3] However, the above results highlights that sexual harassment is not limited to the LGBTQ community, affecting individuals from diverse back grounds. Individuals belonging to the community account for 70 percent of the total LGBTQ catch in India. According to a 2020 survey conducted by Humsafar Trust, 30 percent do not experience sexual harassment. According to IJCH Report 2019, Seventy percent of LGBTQ individuals experience sexual harassment at workplace and also 30 percent of LGBTQ individuals did not experience sexual harassment at workplace.
The National Crime Records Bureau (NCRB) is an agency to collect and analyze crime-related information and monitor the prevalence of crime. According to a study conducted by this organization after the Supreme Court ruling in 2018 that homosexuality is not illegal, it has been revealed that 64.6 percent of sexual harassment cases are not registered and only 23.4 percent of cases are registered. Through this study’s report, strong legal safeguards are needed to protect LGBTQ individuals and LGBTQ individuals need to be made aware of their rights.
It was also clearly advised that law enforcement personnel should be given special instructions and training to reach out to LGBTQ individuals.[4]
National Legal Services Authority vs. Union of India[5]
The National Legal Services Authority (NALSA) an organization created by Act of National Legal Services Authority 1987, to provide free and necessary legal services to the weaker sections of the society. It is the apex body implementing the NLS Scheme. The Public Interest Litigation filed by this organization is one of the major cases related to LGBTQ.
And also, transgender people have existed for many years, until 2014, the gender of transgender people remained unrecognized, and therefore, despite facing many problems, no legal solution was found for them. The following Public Interest Litigation in the Supreme Court put an end to this.
- Fact: The National Legal Services Authority filed a PIL at the Supreme Court of India at 2012 for the protection of the rights of Tran’s genders and for gender recognition.
- Arguments: It was argued that Tran’s genders are subjected to various forms of discrimination and violence due to non-recognition of their gender and are denied many fundamental rights including education, employment and health care.
- Verdict: On 15 April 2014, a bench comprising Justices K.S. Radha Krishnan and A.K. Sikri recognizes Tran’s genders as ‘Third gender’ and issued the following guidelines to the Central and State Governments:
- Tran’s gender should be given recognition and identity.
- Equal access to education, employment and health care should be ensured.
- Reservation should be provided to Trans genders in education and employment.
- Welfare Schemes and programs should be brought for Trans genders.
Challenges under POSH Act:
- Gender Binary: The POSH Act is drafted with a gender-binary approach, focusing on protecting women from sexual harassment. This excludes LGBTQ individuals who may not identify as women or men.
- Lack of Inclusivity: The Act does not explicitly mention or provide protection for LGBTQ individuals, leaving them vulnerable to sexual harassment discrimination.
Suresh Kumar Koushal vs. Naz Foundation [6]
On 11 December 2013, The Supreme Court of India issued an important judgment.
- FACT: A writ petition was filed by a non-governmental organization called Naz Foundation, challenging the constitutionality of Section 377 of the Indian Penal Code (repealed). Section 377 of the Indian Penal Code makes sexual intercourse between a man, woman or an animal against the laws of nature punishable with imprisonment for 10 years and fine. The constitutionality of this section was challenged by the petitioners.
- Delhi High Court Judgment: The Court ruled that Section 377 of the Indian Penal Code was unconstitutional as it infringed on fundamental rights such as equity and dignity.
- Supreme Court Appeal Judgment: The Supreme Court of India upheld the judgment of the Delhi High Court, holding that Section 377 was unconstitutional. It also decriminalized such intercourse between adults.
- Narrow Definition of Sexual Harassment: The POSH Act defines sexual harassment primarily in terms of unwelcome physical contact or advances. This narrow definition may not capture the full range of behaviors that constitute sexual harassment, particularly for LGBTQ individuals.
When referring to the definition of sexual harassment in the POSH Act, we can find an important case where the Supreme Court of India has defined sexual harassment.
Vishaka vs. State of Rajasthan[7]
A case with an important judgment on violence against women issued by the Supreme Court of India in 1997.
- Background: In 1992, Bhanwari Devi a woman working in a social service organization was gang-raped by a group of men. This incident shows that the protection provided against sexual harassment against women in the workplace is not adequate.
- Supreme Court Judgment: The Supreme Court has ruled that sexual harassment is recognized as violence against women. The court has also issued guidelines for employees to prevent and detect sexual harassment at work. The Vishaka Guidelines have been created, which specify the complaints committee, complaint registration methods, penalties, etc.
- Outcome:
- The Vishaka Guideline, created through this case, has played a key role in addressing and sanctioning sexual harassments in India.
- The Vishaka Guidelines have been incorporated into several laws against sexual harassment against women.
- The Vishaka Guidelines has been incorporated with the Protection of Sexual Harassment at Workplace Act 2023.
Insufficient Safeguards: The Act relies heavily on the employer’s internal complaints committee (ICC) to address complaints. However, this mechanism may not be effective in addressing LGBTQ specific issues, particularly if ICC lacks diversity and sensitivity training.
- Fear of Retaliation: LGBTQ individuals may be hesitant to report incidents of sexual harassment due to fear of retaliation, ostracism, or being “outed” in the workplace.
Although the POSH Act did not explicitly protect LGBTQ individuals, the following precedent played a significant role in the development of laws that protect women like POSH Act.
Arun Kumar Agarwal vs. State of Uttar Pradesh[8]
This case was a milestone in the development of laws and policies to prevent sexual harassment in the workplace.
- Fact: Public interest litigation was filed by Arun Kumar Agarwal, a lawyer and social activist on behalf of Vishaka Organization that works to protect our rights, regarding sexual harassment against women n the workplace.
- Supreme Court Judgment: The court held that sexual harassment in the workplace as violence against our fundamental rights of equality and dignity. Guidelines for addressing and preventing sexual harassment at the workplace was issued by the Supreme Court of India.
- Effects:
- Sexual Harassment at the workplace was considered a form of discrimination against women.
- Employers should take the responsibility to address and prevent sexual harassment at the workplace.
- Women who have been victims of sexual harassment have the right to complaint and seek redress.
Opportunities under POSH Act:
- Inclusive Workplace Culture: The POSH Act provides an opportunity for organizations to create an inclusive workplace culture that values diversity, promotes equality, and prevents harassment and discrimination.
- Protection from Harassment: The Act provides a framework for protecting LGBTQ employees from harassment and discrimination, which can help create a safe and respectful work environment.
- Recognition of LGBTQ Rights: The POSH Act’s emphasis on protecting employees from harassment and discrimination can be seen as a step towards recognizing the rights of LGBTQ individuals.
- Increased Visibility and Awareness: The POSH Act provides an opportunity for organizations to increase visibility and awareness about LGBTQ issues, which can help promote understanding, acceptance and inclusion.
- Development of Inclusive Policies: The Act provides an opportunity for organizations to develop inclusive policies and procedures that address the specific needs and concerns of LGBTQ employees.
Conclusion:
The POSH Act, a significant step towards addressing sexual importunity in India, has several limitations when it comes to guarding the LGBTQ community. The being frame perpetuates a gender binary, lacks inclusivity and has a narrow description of sexual importunity. Also, shy safeguards, fear of retaliation and lack of mindfulness complicate the challenges faced by the LGBTQ community.
Despite these challenges, the POSH Act also presents openings for promoting inclusive plant societies, guarding LGBTQ Individualities from importunity and feting their rights. Increased visibility and mindfulness, as well as the development of inclusive programs, can help bridge the gap between the being frame and the requirements of the LGBTQ community.
To address the challenges and influence the openings, it’s essential to readdress and revise the POSH Act to make it more inclusive and comprehensive. This can be achieved by espousing a more nuanced understanding of gender, expanding the description of sexual importunity and incorporating specific vittles to cover LGBTQ individuals.
The POSH Act should be amended to give protection to all individualities, anyhow of their gender identity or expression. This can be achieved by making the language of the Act more inclusive and by furnishing specific vittles to cover LGBTQ individuals from importunity and demarcation.
Bibliography:
- Humsafar Trust Report 2022
- Humsafar Trust Survey 2020
- IJCH Report 2019
- NCRB Report (2019 – 2020)
- https://judgments.ecourts.gov.in
[1] Humsafar Trust Report – 2022
[2] Humsafar Trust Survey – 2020
[3] IJCH Report – 2019
[4] NCRB Report (2019 – 2020)
[5] AIR 2014 SC 1863
[6] (2014) 1 SCC 1
[7] AIR 1997 SCC 3011
[8] (1993) 2 SCC 411