Open Access Research Article
Legal Discrimination Against Lgbtqia+ People And Their Rights In Employment
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LEGAL DISCRIMINATION AGAINST
LGBTQIA+ PEOPLE AND THEIR RIGHTS IN EMPLOYMENT
AUTHORED BY - VIDHI KAPOOR
ABSTRACT
The
Indian Penal Code section 377, criminalize homosexual behaviours which were
deemed "against the order of nature" by British authorities in
1861.
The
first research on homosexuality in India, titled "The World of
Homosexuals," was published in 1977 by Shakuntala Devi. They had
received official voting rights as a third sex in 1994. Transgender individuals
ought to be recognized as the third gender category, according to a 2014
Supreme Court of India ruling. The LGBTQIA+ community in the nation was granted
the ability to openly disclose their sexual orientation from the Supreme Court
in 2017. An individual's right to privacy protects their sexual orientation.
Social racial prejudice LGBTQIA+ people encounter prejudice in many areas of
their lives, including employment, housing, and healthcare. This can make
living freely and safely challenging for them. Discrimination can also result
in less work possibilities, as well as poverty and a lack of fundamental necessities.
Lack of Representation of LGBTQIA+ people are frequently underrepresented in
media, politics, and government, and they are excluded from mainstream society.
This makes it difficult for them to get their voices heard and their needs met.
This lack of representation can also result in a lack of understanding and
acceptance of the group. In the “Crosshairs of Mental Health Issues”
LGBTQIA+ people are frequently victims of hate crimes, such as physical and
verbal assault, bullying, and harassment. This may induce depression and
nervousness in the population, affecting both physical and mental health.
Unheard Rural LGBTQIA Voices the voices of urban LGBTQIA persons are heard on a
variety of online and offline channels. Rural LGBTQIA+ persons, however, typically
hide their opinions owing to a lack of exposure, comfort, and accessibility to
the internet, because refusal to marry leads to further discrimination.
KEYWORDS:-
Homosexual behavior, Transgender, LGBTQIA, Unheard Voices, Discrimination
INTRODUCTION
Over
the last two decades, the legal environment has gotten better, as has the
change of social beliefs and attitudes about an individual's sexuality, gender
identity, and gender expression. Nonetheless, members of the LGBTQ community
keep facing grave and obvious discrimination based on gender in all aspects of
public and private life, including housing, employment, academic opportunities,
the ability to purchase goods and services, and meaningful involvement in our
society's decision-making processes. There is a growing number of laws around
the country being enacted under the guise of religious freedom that curtails –
even eliminates – the rights of LGBTQ individuals. Furthermore, homophobia and
discomfort with individuals who do not conform to antiquated stereotypes of sex
and gender often manifests into heinous discrimination against these
individuals. Nearly 41% of gay and lesbian adults face some form of
hostility or harassment on the job, including being fired or forced to quit
because of their sexual orientation . In
India, the effort to fight for LGBTQIA+ rights has made significant progress in
recent years. Landmark decisions and legislative reforms have opened the path
for more inclusion and protection against discrimination. The Indian judiciary
has played an important part in this shift, with numerous landmark judgments
that have broadened the rights of LGBTQIA+ human beings which also includes in “The
Transgender Persons (Protection of Rights) Act, 2019”.
3.
LITERATURE REVIEW
3.1. THE TRANSGENDER PERSONS (PROTECTION OF
RIGHTS) ACT, 2019 AND RIGHTS AND ENTITLEMENT GIVEN TO TRANGENDER
COMMUNITY
The
Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok
Sabha on July 19, 2019 passed on 5th August, 2019 and passed in Rajya Sabha on
26th November, 2019, by the Minister for Social
Justice and Empowerment, Mr. Thaawarchand Gehlot. Unanimously.
Consequently, after passing the Rajya Sabha to obtain the President's assent,
the bill was enacted as the Transgender Persons (Protection of Rights) Act,
2019. The actual definition of a transgender is who does not match the gender
which was assigned by the birth. It involves transgender men and transgender
women, people with intersex variations, gender-queers, and those with
socio-cultural identities like kinnar or hijra. The
Bill prohibits the discrimination against a transgender person, by denial of
service or unfair treatment which includes :- (i) education (ii) employment
(iii) healthcare (iv) access to, or enjoyment of goods, facilities,
opportunities available to the public (v) right of movement (vi) right of
residing anywhere, rent, or otherwise occupy the property (vii) opportunity of
holding the public or private office and (viii) access to a government or
private establishment in whose care or custody a transgender person is. The
transgender person also has a right to residence that he/she can reside
anywhere they want. If the transgender person's closest and nearest family is
unable to care for him or her, a competent court may order that they be placed
in a rehabilitation center. Nobody can discriminate on the grounds of
employment, the transgenders have a right that they can be given a job
including recruitment, and promotion. They should be given equal opportunities
for education and sports. The government must make a little extra effort to
offer health services for transgender people, such as specialized HIV
surveillance centres and sex reassignment surgery. The government must evaluate
medical programs to address transgender people's health concerns and establish
comprehensive medical insurance schemes for them. The certificate of identity
of a transgender should be given to him/her as a transgender person may apply
to the District Magistrate for a certificate of identification, specifying
their gender as 'transgender'. An updated certificate may only be issued if the
individual gets surgery to change their gender, either as a male or female.
3.2. HISTORY AND EVOLUTION OF
TRANSGENDER COMMUNITY
The transgender community consisted of hijras,
kothas, Aravanis, shiv-shakthis etc. They all have existed from the 9th century
BC. Various texts suggested that sex individuals were well known in pre- modern
India. Ancient Hindu law, medicine, linguistics, and astrology all address the
concept of a third gender. The Manu Smriti (200 BC - 200 AD), a foundational
work of Hindu law, explains the biological origins of the three genders: "A
male child is produced by a greater quantity of male seed, a female child by
the greater proportion of the female seed, if both are equal, a third-sex child
or boy and girl twins are produced; if either are weak or deficient in
quantity, conception collapses." In Mughal period hijras played a very
significant role in the role courts of the Islamic world, specifically in
ottoman empires of the mughal period. They held prominent positions such as
political advisers, administrators, generals, as well as the guardians. During
the Mughal Empire, Hijras were valued for their intelligence, loyalty, and were
important aspects to society. . They played a vital role in building the
empire's politics. They influenced the queens and kings of that era and
received a lot of money from them as prizes, thus hijra had frequently stated
the role of their status in that period very drastically.
In the beginning of the British period in the
Indian subcontinent, hijra received protection and advantages from various
Indian governments by joining the hijra society. The transgender has existed in
Indian society for many centuries. In ancient India, "third sex" or
non-confirmed gender individuals were acknowledged in early literature.[1]
Lord Rama, in the epic Ramayana, was living in the forest upon being banished
from the kingdom for 14 years, turns around to his followers and asks all the
‘men and women’ to return to the city. Among his followers, the hijras alone
did feel bound by this direction and decide to stay with him. Impressed with
their loyalty, Rama sanctioned them the power to confer blessings on people on
auspicious occasions like childbirth and marriage, and also at inaugural
functions which was supposed to set the stage for the custom of badhai in which
hijras sing, dance and confer blessings.
3.3. RECOGNITION AND DEVELOPMENT
LGBTQA+ community has their own experiences,
culture, pride and practices and this has evolved from a long generation. In
the past 10 years the colours of the rainbow have been increasing day by day.
The presence, voice, colour and faith has also been increased. There is more
diversity and understanding of this community. There are many developments in
recent years i.e decriminalizing section 377 of Indian Penal Code. The court's
decision to overturn Section 377 was a historic step toward acknowledging
LGBTQ+ people's dignity and humanity, as well as affirming their right to
pursue their passions freely without fear of harassment.[2]
Article 14 (Equality before Law) ensures that every citizen of the society is
equal in the eyes of law and according to Article 15 (Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth)
respectively to every person. They have also received gender identity and legal
recognition by society. No one can deny or violate their rights under above
mentioned articles respectively. There are no legal restrictions for LGBTQA+
Community, the government has introduced a scheme called “SMILE” - (Support
for Marginalized Individuals for Livelihood and Enterprise) which was launched
on 12th February, 2022. This scheme also includes two sub-schemes i.e
‘Comprehensive Rehabilitation for Transgender Persons’ and ‘Comprehensive
Rehabilitation of persons engaged in the specific act of begging’, the
government also took various measures which includes medical services,
education and skill development etc. [3]
3.4. CHALLENGES AND
LIMITATIONS
While significant progress has been fulfilled,
hurdles remain on the path to full LGBTQ+ acceptance. Social stigma, familial
rejection, and a lack of knowledge continue to be obstacles for LGBTQ+
community seeking legal help.[4]
The complex relationship of cultural norms, societal attitudes, and legal
safeguards highlights the value of comprehensive education and activism in
bringing about long-term change. In our history the transgender community has
faced numerous challenges and limitations which includes criminalization,
homosexuality was illegal in many countries which leads to imprisonment, fines
and other legal penalties. Pathologization, once considered as a mental illness
leading to stigma and there were problems with the legal representation of this
community, has historically been underrepresented in media, politics and other
areas of public life in the media.[5]
4. CASE LAWS
1.
NAZ FOUNDATION VS GOVT OF NCT OF DELHI
Naz Foundation vs Govt of NCT of Delhi is a
landmark Indian case, the decision of this case was held by a two-judge bench
of Delhi High court. The Court further held that Section 377 violates the
promise of equality established in Article 14 (under the fundamental Right to
Equality charter) of the Constitution by creating an arbitrary division and
targeting homosexuals as a group.
2.
SURESH KUMAR KOUSHAL VS NAZ FOUNDATION
The court's decision led to the legalization of
Homosexual conducts between consenting adults across India. The Supreme
Court of India later overruled this decision in this case by the two-judge
bench.
3.
NAVTEJ SINGH JOHAR VS UNION OF INDIA :-
The case of Suresh Koushal vs Naz foundation was
also been overruled in this case by five judge bench of high court Delhi. The
Court drew on the doctrine of progressive realization of rights to hold that
rights should not be revoked. The Supreme Court considered Section 377's
validity in light of the principles of equality, liberty, and dignity enshrined
in Articles 14, 19, and 21.
5. SUGGESTIONS
The suggestions also include about their personal
growth which involves education, take a stand against discrimination and they
should also support policies that promote equality, events should be organized
by which LGBTQA+ community can participate such as pride parades and meetings
by all this means they will be called as an active ally they will also grow,
engage and learn through all these methods. More recognition should be given to
the achievements of people belonging to the transgender community like
Naaz Joshi who was born on 31st December, 1984 who is also India's first
transgender international beauty queen, a trans rights activist and a
motivational speaker and Sathyasri Sharmila who became India’s first
transgender lawyer. These people have set a record in their respective fields.
Hence media should highlight the achievements of these people so it will be
convenient to include them into the mainstream of the society as media plays a
significant role in building the thought process of the society. The
transgender people should be given equal opportunities in the field of politics
which in turn will help in building a more equitable and inclusive society.
6. CONCLUSION
During the Mughal period, the transgender minority
faced significant challenges due to British colonial restrictions. The
government has adopted several policies and plans to protect transgender communities.
The social and economic position of the transgender people has improved as they
also have been given many rights which they can exercise. To effectively serve
the transgender population, the government had eliminated stigma,
discrimination, and violations of human rights. Incorporating these practices
into daily life might benefit the transgender population in India, according to
“THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019” they
have given right to residence, education, sports , opportunities in jobs
including the recruitment and the promotion. They have been given a little
extra care for health services in India. We have seen many challenges and
limitations for transgender community. For example, in India, the Supreme
Court's recent decision denied to legalize same-sex marriages, which has been
seen as a setback for the LGBTQIA+ community. The court left the issue to the
legislature, emphasizing on the continued battle for equal rights in marriage
and other legal safeguards. In conclusion, while progress has been
accomplished, much more needs to be done to guarantee that LGBTQIA+ individuals
are not discriminated against and have equal access to all rights, including
employment, healthcare, education, and legal recognition. Community-building,
education, and public awareness are crucial for enhancing these rights and
building a more inclusive society.
[1] M.
Michelraj, Historical Evolution of transgender Community in India pg. - 17-19, Asian
Review of Social Sciences,https://www.trp.org.in/wp-content/uploads/2015/10/ARSS-Vol.4-No.1-Jan-June-2015-pp.17-19.pdf.
[2] LGBTIQA+
communities, https://www.vic.gov.au/pride-our-future-victorias-lgbtiq-strategy-2022-32/lgbtiq-communities, (last visited March 28 2024).
[3] Smile,
National portal for Transgender persons, https://transgender.dosje.gov.in/#:~:text=The%20Ministry%20of%20Social%20Justice,Persons'%20and%20'Comprehensive%20Rehabilitation%20of, (last visited March 29, 2024).
[4] Barelawindia, LGBTQ+ Rights in
India: A Comprehensive Legal Guide, BareLaw (August 10, 2023), https://www.barelaw.in/lgbtq-rights-in-india-a-comprehensive-legal-guide/.
[5] Bonnie J. Morris, A Brief History
of Lesbian, Gay, Bisexual, and Transgender social movements, American
psychological Association (March 16, 2023), https://www.apa.org/topics/lgbtq/history.
Article Information
Legal Discrimination Against Lgbtqia+ People And Their Rights In Employment
Authors: VIDHI KAPOOR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/19
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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