Trending: Call for Papers Volume 4 | Issue 4: International Journal of Advanced Legal Research [ISSN: 2582-7340]

An Inclusive Approach: A Tale of Discrimination, Equality & Opportunity (The LGBTQIA+ questions Labour Laws) by-J. Tanisha

Abstract :-

From having no recognition to celebrating pride month, the LGBTQIA+ community has come a long way. Years of fight over section 377 and necessary requirements for recognized laws dedicated to upliftment of the community. Dwelling over human rights and labour laws, a comprehensive view of ignorance is no remedy but recognition is rather. Different stages of resolvable improvements with judgments over the years and their cumulative effect on forming the transgender bill. Importance of state intervention is to protect the interest of the weaker section of the society, protecting the livelihood and social security. Employment rights and dedicated terms by companies have become a must to protect the interests of such communities. Therefore, it becomes essential to not just protect these communities from social discrimination but to have dedicated labour laws for their improvement and secured life. As workplaces now have defined and curate steps for women employees to have a safe and enjoyable work-life, it becomes extremely crucial to have a similar format to be followed for this minority section as well. When, this is established, it is when the equality will truly be acquiring its purest form.

Research Paper:-

Every year the world gears up and celebrates the month of June as the “Pride Month”. This time-period witnesses a unification of strong minded individuals who assimilate to carry on several jovial festivities in the honour of our beloved colorful community – “The LGBTQIA+ and their journey to conquer towards their right to live with dignity”. Mass gatherings are a common sight. People here commemorate ‘Pride’, the word which perpetually describes the extent of right attained by the community up until now and the distant vision still left to achieve.
But, the question now arises is whether the community enjoys equal access to employment opportunities in parallel to their cis-gender. In my experience, NO.
In a recent judgement by Justice Anand Venkatesh’s, the 107 page judgement outlined “tackling the harmful stereotypes in our society that an overwhelming members of the community face on a day-to-day basis which ultimately have a lasting and a damaging effect on the quality of lives they lead”.2
While reading books on LGBTQIA+, often my family members would enquire about what does the term even stand for and that’s when I came across a very harsh reality. It was heartbreaking. Agonizingly, this is the society we live in, where majority are unaware about various gender identities.
So, while I went ahead to describe the meaning behind the letters of ‘LGBTQIA+’, I found out that people were either not aware about the terms themselves or would shy away from hearing and understanding it. Even, the celebrated lawyer Arundhati Katju who has been fighting against section 3773 mentioned in her 2019 TEDx Ferhadija talk that the biggest gap in the courtroom strategy during the 2013 court proceedings was : ’The public and the courts didn’t know who the LGBTQ people were’.
Therefore, when we are already aware that this minority section of our society is most prone to social injustice and tough livelihood, the state should act as a “guardian”, a custodian who protects the interests of the community by being a catalyst of change. And this change can only be brought up by making the community independent and self-sufficient. Giving them options for employment both in the corporate ladder as well as in the government sectors. This is not minority politics, but rather a step towards removing the term ‘us and them’. Thus, bringing in the concept of ‘We all are same, so we deserve equal rights as you’.

“Ignorance is no justification for normalizing any form of discrimination”.4
Over the years, India has witnessed numerous laws which were governing labour and their employment. While, these made managing businesses onerous, on the other hand ensured a fair amount of protection to the employees under them. Currently, the government has four labour codes which aspire to multiply the scope of rights and protection maintenance, compliance of authorities, coverage opportunities and much more for employee benefits. These are The Code of Wages, 2019; The Industrial Relations Code, 2020; The Occupational Safety, Health and Working Conditions Cost, 2020; and The Code on Social Security, 2020.
Some of the essential improvements these Labour Codes brought in are –
• Widened coverage of provisions which includes all types of companies under it. This is inclusive of un-organized sector in continence to minimum wages or social security.
• Mention of a clear uniform definition for wages. Therefore, removing any form of confusion or misinterpretation between the employer and employee.
• Introducing the concept of ‘Fixed-Term employment’.
• Another concept, the ‘National Floor Wage’ was initiated which made minimum wages across the country to the same pedestal.
With these recent implementation of the above Labour Codes, a couple of years ago, the government had also tried to protect a certain section of the LGBTQIA+ community through introduction of The Transgender Persons Bill, 2019 which defines various terms around ‘Transgender’5. This a stand-alone piece of legislation that India has proclaimed which specifically deals with the Transgender community. Thus, leaving India far behind against its western counter parts who have acknowledged the problem and have taken steps to broaden the scope of protections invested on the community.
While the act has faced criticism and black-lash, nevertheless it has been successful in establishing certain safe statutory provisions. For example, it protects a transgender from any kind of discrimination by any person or establishment6 and particularly in regards to the context of employment e.g. recruitment, promotion or any other related issue. It is also of utmost importance that establishments implement Grievance Redressal Mechanism to address the issues arising out of the concerned act.
Yes, somewhere these blooming changes are most welcomed which have remained unprecedented in India for all these years and for which the community has been fighting for the last two decades. But at the same time, we need to recognize that it is just not Transgender who make the community but rather several other gender identities which are left vulnerable in the harsh society with the people who do not even understand the terms well. Leaving the livelihood and social security of other members in the community at stake. Let alone employment discrimination.

Terms like “hijra”, “kothi”, “panthi”, etc are prevalent around. When in the early 2000s, The NAZ foundation filed a public interest litigation at the Delhi High Court for reading down Section 377 on the grounds that it was discriminatory to queer people, through their legal counsel on the grounds that it violated right to privacy, dignity and health under Article 21, equal protection of law and non-discrimination under Article 14 and Article 15 and freedom of expression under Article 19 of the Constitution7, a palpable sense of excitement emerged in India. People recognized that there was no vocabulary to even articulate the community’s identity. As Gautam Bhan, the queer activist and researcher wrote in the forward to Loving Women – “When you have a place to say something, what will you say? What words will you choose? What political identities will you embrace? Will you say ‘gay’? Will you say ‘queer’? ”8. This perspective of human rights was dismissed by the Delhi High Court but the questions rose snowballed, giving us an unfiltered seemingly impossible scenario to tackle by the minority.

But speeding through, in 2014, The National Legal Services Authority vs Union of India judgement popularly known as the NALSA judgment made a pioneering and progressive document, a judicial impact that relapsed with the Transgender Persons (Protection of Rights) Bill, 2019. It recognized the fundamental rights of trans-people and spoke about protection from discrimination, equality of opportunity, freedom of expression and right to dignity. Reservation was granted for both education and employment by identifying the transgender community as socially and economically backward classes.9 The judgment also mandated social welfare schemes, public awareness and gender sensitization. This was huge, Later, the judgment travelled a rocky road to the noisy halls of the Indian Parliament towards becoming a law through the years followed. Draft bills were introduced, each inclusive of endangered loopholes and gaps e.g unscientific definition of what it meant to be a transgender, importance of transgender certificate, conflated the categories of trans and intersex, ignored Hijra family structures, criminalised begging, made no mention of affirmative action, mandated that a screening committee would decide whether a person is trans or not, and also laid down punishment for sexual assault and rape which was not on par with laws for cis-gendered people. Many of these admittances were contrary to the provision of the NALSA judgement.10

Additionally, it’s only the historic judgment in the case of Navtej Singh Johar & Ors v. Union of India11 which decriminalized homosexuality in India just two years go. It gave importance to discrimination faced by homosexual people which in the extent violate their fundamental rights which are being guaranteed in the Indian constitution.12 Further, the Supreme Court in the case of KS Puttaswamy v. Union of India13, unanimously ruled that a person’s sexual orientation is a private issue. The Article 21 of the Indian Constitution recognizes individual privacy as a fundamental right.
Around the same time, another bill was introduced in the Parliament: The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 which appeared to systematically criminalize Hijra homes and trans-people who depended on sex work as a source of livelihood. It made no distinction between coerced labour and limited choices of employment available to trans-people. It was shocking that no NGO network or trans-community was consulted before it was draft.14 This draft along with the earlier one lapsed when the sixteenth Lok Sabha dissolved.15
Finally, The Transgender Persons (Protection of Rights) Bill, 2019 was introduced and passed in Lok Sabha and Rajya Sabha. The motion to send it to a select committee was moreover turned down with seventy noes. Further, a quiet asset was received from President Ram Nath Kovind on 5th December and became a law. This disregard of trans voices and concerns about trans livelihoods was a massive setback for trans rights in the country. 16
It is clear from looking at how things have panned out over the years for the community in India, that the law, and by this I mean the courts mostly put constitutional morality above social acceptance. Even after the bill has passed, the question of Social Justice and Inclusive employment at the Indian Workspace still remains.
It is worth reiterating the salient features of Transgender Persons (Protection of Rights) Act 2019 which 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-women (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 dinner, Hijra, Aravani and jogta”.17 The set of people falling under this definition may enjoy the rights provided under the respective legislation. But, for individuals who do not come under this purview, can only rely on the protection which comes from judicial interpretation of extant law.
So, when we question:
• Are there explicit statutory protections guaranteed to protect LGBTQ individuals from discrimination ?
Ans – No, Except for trans individuals

• Are there laws to protect LGBTQ individuals from employment discrimination ? Ans – No, except for trans individuals

• Are the LGBTQ individuals allowed to openly serve in the military? Ans – No

As sociologist Jyoti Puri notes – “Undoing the social injustices of sexual orientation are contingent on undoing the harms of caste and class inequalities, religious discrimination, nationalisms, racialism, gender hierarchies and intolerances of gender expression”.18 And, even if some companies do recruit or position these people from the community, they do not have policies in place to have a contended work force. There is no regulation to abide by. For the same skill set or performance, they are paid far less than their cis-gendered counterparts

Some of the notable scarcities in the provisions under the act are –
Even though the act puts out provisions for the legal protection of transgender keeping the rights of employment in context, it lacks the depth of penalizing any kind of non-compliance with labour rights. Admittedly, making their vested rights shallow and theoretical. This abstraction completely disregards the legal concept of ‘ubi jus ibi remedium’ which means, “where there is a right, there is a remedy”.
Section 18 of the Transgender Act imposes a punishment of two years in case of an offence of physical or sexual abuse for a transgender. On one hand while the Transgender Act is by itself insufficient in giving any definition or explanation to what would constitute a ‘sexual abuse’ at the instant context, on other hand discriminating a sexual abuse between a transgender and a cis-gender by having far-off varied penalties.
Additionally, the transgender people are being fired for being ‘non-stereotypical’ and for ‘deviant mischief’. This makes their employment less than 6% in the formal sector and almost nil in government jobs. 19
There remain no guidelines which have been issued for prevention of sexual harassment of transgender people in the workplaces in comparison to guidelines created in the landmark case of Vishaka v. State of Rajasthan20, which imposed guidelines on sexual harassment of women in the workplace. Further, the wider LGBTQIA+ members enjoy no law which prevents discrimination of employment against them on the basis of their sexual orientation.

When we try we look at the situation internationally in the concerned context, it seems pretty ahead. Few of them are:
Under Article 7 of the Universal Declaration of Human Rights (UDHR)21, it states that “all are equal before the law and are entitled to equal protection without discrimination”. The Article 23(1) of the UDHR further protects against unemployment through ensuring the rights to work, free choice awarded for employment along with favorable and just working conditions.
The Resolution 32/2 of the Human Rights Council22 adopted on 30 June 2016, specifically “protects against discrimination based on sexual orientation and gender identity”.
Additionally, under article 2 of the International Labour Organisation’s Discrimination (Employment and Occupation) Convention, 195823 preaches equality in opportunities and treatment in respect to employment and occupation, keeping in view any kind of discrimination through a national policy.
A recent development in the LGBTQIA+ labour rights in concern to the United States happened in the case of Boston v. Clayton County24. Here, the US Supreme Court held that employees can be fired on the sole basis of their sexual orientation. It also prohibited any kind of discrimination on the basis of sex, transgender and homosexual under Title VII of the Civil rights Act, 1964.25

Our Constitution guarantees social justice to the people of India. Where, social justice means achievement of socio-economic objectives. In this race to attain social justice, our labour legislation remains at forefront holding one of the most progressive and dynamic instruments. “There is no other branch of law which embraces such a wide and effective role in social engineering and social action. It is here that the industrial law distinguishes itself from other branches of law and awaits the development of wholly different jurisprudence to explain and expound it”.26
Therefore, making labour welfare of utmost importance and worth pursuing. Particularly, in case of intervention of Government in settlement of disputes under discrimination based on gender identity, making it in the interest of national economy and creating welfare for the society at large. 27
As, it been stated that State intervention is justified to prevent exploitation of the weaker section of the society by the stronger section. Industry owners are not the only party to be blamed for the industrial disorder, but the state whose duty it is to establish a just social order is equally to be blamed. Social justice requires that the state for its own existence owes an obligation to the community to bridge the gap between the two classes and evolve a healthy social order. It is from this fountain of social justice that necessity of legal regulation of industrial relations has flown.28 Its been then realised that the very existence for the state to act as a protector of the community and as arbitrator of conflicting interests may be jeopardised if it was not to intervene in industrial matters to maintain social morality which was necessary for a healthy social order.29

And, considering the livelihood of people from this community who may or mayn’t have been covered under the Transgender Act lacks the social security. While the unemployment rates of the community is peaking high, nevertheless the persons who find themselves employments remain the most vulnerable and most prone to lay-offs. Conclusively, we can say that even though they want to or can contribute to the country’s welfare; they should be protected against certain hazards.30
President Roosevelt has rightly said that “there are some whose adverse circumstances made them unable to obtain the mere necessities of existence without the aid of others. To these less fortunate, aid must be given by government not as a measure of charity but as social duty”. Social Justice is designed to undo the injustice of unequal birth and opportunity, to make it possible that wealth should be distributed as equally as possible to provide that men shall have the material things of life should be guaranteed to each man.31
Henceforth, when we keep several principal aspects of labour legislation and policy under view such as Social justice, Industrial Peace, Industrial Harmony, State intervention, and Social Security all of which made strong building pillars to growth of labour laws in India, we need to look into these scenarios in respect to not just dividing the society into two clear genders but having a grey area in it which includes all other gender identities. Taking an inclusive approach here, is crucial.

Universal Declaration of Human Rights under Article 22 and 25 respectively expresses the following words:
“Everyone as a member of the society has the right to social security and is entitled to realization through national efforts and international co-operation and in accordance to the organisation and resources of each state of economic, social and cultural rights indispensable for his dignity and the free development of his personality”.
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood, or circumstance beyond his control”.

Likewise, the National Labour policy must aim at maximizing economic welfare, which requires them:
Maximise the National Income
Attaining it through equal pay for equal work (No discrimination at any cost policy) And the pay must be stable in the sense of being free from violent fluctuations.
What we require is just not a mere act without consultation of the concerned community or a piece full of unresolved issues, but rather an amalgamation of what is right. Prevailing justice and humanity over any other form of nature.
Acts might have loopholes and gaps or the society might choose to remain unaware about their own co-existing humans. But what remains constant is that this minority community still exists. And they have the Fundamental Right to live with dignity.

The Transgender Act has even been criticized by a member of the legal community itself. In late 2019, Assam’s first Transgender judge, Swati Bidhan Baruah, challenged the Trans Act by filing an appeal. She stated that in its current form, it does nothing for trans-employment and empowerment and is in fact, ‘draconian’ and ‘humiliating’.32

It also important here to highlight that things are quite different at the national and the state government level in our country. No matter which government has been in power at the centre, LGBTQIA+ rights have never been a priority. But many state governments have chosen to pay attention to these rights.
Tamil Nadu, was the first state in India to set-up a welfare board in 2008 completely dedicated for the people of this community called as Aravani Welfare Board. It offers loans to incentivise the establishment of businesses, free health insurance and vocational training.33
Kerala was the first state to formulate a related policy in 2015 to protect the community from discrimination. Kochi Metro was the first government project in country to hire transgender people.
Odisha is another example of a pioneering state. In 2016, it was first to give transgender people social welfare benefits such as Below Poverty Line cards, free housing, food grains and pension.
The government of Madhya Pradesh appointed its first trans government officer in 2019. And few more similar ones-
As we can see from the examples of states above, many states have already become inclusive. The law too is firmly on the community’s side today. Being LGBTQIA+ is not a crime in India anymore and there is nothing which prevents an organisation from being inclusive. But the law is only on papers. As citizens, it is our duty to translate the progress made in the courts into something real and tangible. It is also now the time for private workplaces to participate in the movement.
Some of the suggestions provided by Justice Anand Venkatesh for employers in the recent same-sex relationship judgment34 were that –
Creating awareness through programmes and workshops to create inclusion for the LGBTQIA+ community;
Making of suitable changes in hiring policies to inculcate inclusivity;
Setting up and enforcing Human Resources polls to make the environment friendly for the community;
Supporting members of LGBTQIA+ community in case they gave any kind of grievance; Extended benefits mights be provided such as insurance to members of the LGBTQIA+ community; and
Adoption of policies to ensure there is no discrimination on the grounds of sexual orientation, including sexual harassment of persons belonging to the LGBTQIA+ community in the workplace.

Other recommendations that could be taken seriously would be in regards to notice entitlements, leave entitlements, maternity benefits, employee compensation, employee provident funds and equal remuneration.

Multinational Companies like Microsoft, Youtube, Barclays, IBM, McKinsey and Infosys all have recognized and understood the rights of LGBTQIA+ in their organisation. A diverse workforce like the one that the have not only creates an environment of harmony but encourages acceptance and goodwill.
India companies like Godrej, which is a really old India company; Tata, a really old and large Indian company; Lalit, a relatively young and small Indian company; all of three of these companies along with several others have already confidence instating their own inclusion journeys. When it comes to inclusion, Age doesn’t matter, size doesn’t matter. What matters is decency, and a willingness to do the right thing. All the above three companies are Secular, Plural and Inclusive. If they can do it why can’t others.

When asked Why LGBTQIA+ inclusion is a sensible to companies? It is Fundamentally a good act
Can make companies a good amount of money
Can make companies more innovative, Help Attract and Retain Talent Inclusive messaging helps PR and to keep up with millennials.

Money, innovation, talent and reputation – for why inclusion is important.35

The community has had a rocky ride all throughout. From not having any legislation in place to having an un-consulted one. From having no gender identity to having several ones. From having no employment rights to gaining a partial protection. From being unknown to being the most talked about. They had their share of hardships. But they still kept going. Finally their united effort repealed section 377 of the Indian Penal Code .

In all this chaos of have or have-nots, dos and don’ts what we really forget is that if we can change and regulate laws for the women section of the society in the well being of human rights and equality, why can’t we even regulate the employment rights of this minority who hold the same human rights in parallel to women. Additionally, it shouldn’t be just considering ‘Transgender’ but it should have an ‘inclusive approach’ to cater all the members under the LGBTQIA+ community.
And why do we only look at providing them at least they’re basic necessities. They enjoy the same human rights which should be filled with equal opportunities of education, employment and services. They also have a right to create their set of wants and desires. They should have the freedom to live their life the way they hope. They want the prevalence of equality to their cis-genders. While all of this has already been recognized by many States, companies and countries. India still has a long way to cover.
The government doesn’t devise them dignity by enthralling the Fundamental rights, but rather by listening to their problems through making required regulations accordingly. A demeanor of form that a certain section of our so-called modern developing society is still fighting for their basic rights of life. What is of grave significance that, it shouldn’t be termed ‘equality’ for namesake but rather ‘equality’ in every form.

1 Student at Amity Law School, Noida

2 S. Sushma & Seema Agarval v Commissioner of Police, Madurai, [2021] W.P. No. 7284
3 Indian Penal Code, 1860
4 Ibid

5 Transgender Persons (Protection of Rights), 2019, s 3
6 ibid (s 4)

7 Naz Foundation v Government of NCT of Delhi, [2009], 160 DLT 277
8 Gautam Bhan, Sexuality and Queer politics in India : Part Two ( 9 October, 2013 )
9 National Legal Service Authority v Union of India, [2014], SCC 604 [11]

10 Sampoorna blog,’TG Bill 2016 Factsheet : Bill provisions and Community Demands’ ( 23rd November 2017) < sampoornaindiablog.wordpress.com/2017/11/23/tg-bill-2016-factsheet-bill-provisions-community-demands > accessed 17 October 2021
11 Navtej Singh Johar v Union of India, [2018] 10 SCC 1
12 Global Freedom of Expression by Columbia University, ‘Navtej Singh Johar v Union of India’ (2020) < https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/ >
13 K. S Puttaswamy v Union of India, [2017] 10 SCC 1
14 PARCHA, ‘All India Coalition Against the Transgender and Anti Trafficking Bill, 2018’ [2018], Financial times
15 Ministry of Women and Child Development , ‘Comprehensive Legislation on Child Abuse’, (Press Information Bureau, 12 July 2019)
16 The News Minute,’Despite Massive Protests, Trans Bill Gets President’s Assent, Becomes Law’ ( News Minute, 7 December 2019) < thenewsminute.com/article/despite-massive-protests-trans-bill-gets-president-s-assent- becomes-law-113643 > accessed on 17 October 2021

17 Transgender (n 3)
18 Jyoti Puri, Sexual States: Governance and the Struggle over the Antisodomy Law in India (Durham: Duke University Press 2016)

19 Dr. Jacob John, Kerala Development Society ( New Delhi 10 February 2017) < https://nhrc.nic.in/sites/default/files/Study_HR_transgender_03082018.pdf > accessed on 17 October 2021 20 Vishaka v State of Rajasthan [1997] 6 SCC 241
21 Universal Declaration of Human Rights [2015] < https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf > accessed on 17 October 2021
22 Universal Declaration of Human Rights (Resolution adopted on 30 June 2016 – 32/2), ‘Protection against violence and discrimination based on sexual orientation and gender identity’ (15 July 2016) < https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/32/2 > accessed on 17 October 2021

23 International Labour Organisation, C11 – Discrimination (Employment and Occupation) Convention, 1958 (No. 111) <https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C111 >
accessed on 17 October 2021
24 Supreme Court of the United States, Bostock v Clayton County, Georgia (15 June 2020) < https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf > accessed on 17 October 2021 25 International Labour Organisation (Title VII of the Civil rights Act) 1964 < https://www.ilo.org/dyn/travail/docs/1583/CIVIL%20RIGHTS%20ACT.pdf > accessed on 17 October 2021
26 G.M. Kothari, A Study of Industrial Law (1st Supp, 4th edn, Lexis & Nexis 1987) [p. 39]
27 V. V. Giri, Labour Problems in Indian Industry (3rd edn, London, Asia Publication House 1972) [p. 119]

28 G.M. Kothari (n 24) [p. 3]
29 G. M Kothari (n 24) [pp., 2-3]
30 I.L.O, Approaches to Social security 1942, ‘Report of the National Commission on Labour (1969)’ [p. 80] [p. 162]
31 S.N. Mishra., Labour & Industrial Laws (29th edn, Central Law Publications, 2019) [p. 10]

32 Gaurav Das, ‘Assam’s First Transgender Judge Awaits Centre’s Response to SC Plea against “Humiliating Act”’ ( Wire, 3 February 2020) < there.in/lgbtqia/swati-bidhan-baruah-transgender-act > accessed on 17 October 2021

33 United Nations Development Programmes, India, ‘The case of Tamil Nadu Transgender Welfare Board: Insights for Developing Practical Models of Social Protection Programmes for Transgender People in India’ (2012), < undo.org/content/dam/india/docs/HIV_and_development/the-case-of-tamil-nadu-transgender-welfare-board- insights-for-d.pdf > accessed on 17 October 2021
34 S. Sushma & Seema Agarwal (n 1)

35 Parmesh Shahani, ‘Queeristan : LGBTQ Inclusion in the Indian Workplace’ (2020)