Need for inclusion of LGTBQIA under the POSH Act

ABSTRACT

One of the few laws that aims to protect a particular group against sexual harassment in the
workplace is the Sexual Harassment of Women at Workplaces (Prevention, Prohibition, and
Redressal) Act, 2013..1 In addition to protecting women from discrimination in the workplace (as
stated in Section 354), the major goal of this law is to ensure that women can do their jobs in an
atmosphere free from violence and harassment. The legislation was enacted with the best of
intentions, yet it primarily protects women from sexual harassment on the job, despite the reality
that sexual harassment may affect everyone, regardless of their gender. A man who is a victim of
sexual harassment at work cannot claim protection under the Protection from Harassment at the
Workplace Act. People outside of this paradigm are also frequent targets of sexual harassment.
Lesbian, gay, bisexual, transgender, queer, and anyone else who does not identify with the
traditional gender binary are often subjected to sexual harassment in ways that are very different
from those experienced by the typical victims of sexual harassment.

INTRODUCTION

In 2019, the Rajya Sabha passed the Transgender Persons (Protection of Rights) Bill after just
three days of debate and discussion. No amendments were submitted. The ACT specifies who is
considered transgender.2 under Section 2(k) as

“2. (k). a person whose gender does not match with the gender assigned to that person at birth
and includes transman or transwoman (whether or not such person has undergone sex
reassignment surgery or hormone therapy or laser therapy or such other therapy), person with
intersex variations, gender queer and person having such socio-cultural identities as kinner,
hijra, aravani and jogta ”

The sexual orientations of transgender persons are not uniform, nor are they tied to their gender
identity, and transgender people do not adhere to the gender roles assigned to them at birth. It
also prohibits “the denial of, or termination from, employment or occupation” under Section
3(c).

1 Muskaan Fatwani & Ayush Rajpal, A CRITICAL ANALYSIS ON TREATMENT OF LGBTQ COMMUNITY POST
“

DECRIMINALIZATION OF SECTION 377 OF THE INDIAN PENAL CODE IN WORK PLACES INTERNATIONAL JOURNAL OF
LAW MANAGEMENT & HUMANITIES (2020), https://www.ijlmh.com/wp-content/uploads/A-critical-analysis-on-
treatment-of-LGBTQ-community-post-decriminalization-of-section-377-of-The-Indian-Penal-Code-in-work-
places.pdf (last visited Jul 9, 2023).

2 Bhumika Indulia & Prachi Bhardwaj, NEED FOR INCLUSION OF LGBTQIA+ UNDER THE SEXUAL HARASSMENT OF
WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 SCC BLOG (2022),
https://www.scconline.com/blog/post/2022/07/08/need-for-inclusion-of-lgbtqia-under-the-sexual-harassment-of-
women-at-workplace-prevention-prohibition-and-redressal-act-2013/ (last visited Jul 9, 2023).
”
Section 18 of the Transgender Persons (Protection of Rights) Act, 2019 recognises following
“

offenses against transgender persons: (i) forced or bonded labor (excluding compulsory
government service for public purposes); (ii) denial of use of public places; (iii) removal from
household, and village; (iv) abuse in any form, whether it physical, sexual, verbal, emotional, or
”

monetary. These violations carry penalties of up to two years in prison and a fine. When
contrasted to crimes against particular genders, such as rape, the punishment is quite light.
Additionally, sexual harassment in the workplace is not classified in any particular way.

If a trans person identifies as a woman, she is protected under the POSH Act since she falls
under the definition of "aggrieved woman" in the Act. There are currently no legal
pronouncements on this subject, but new remedies for enforcing one's rights can be used through
remedial statutes. The goal of these statutes is to improve the general welfare by implementing
social reforms through the system. These statutes have a liberal interpretation and are hence not
interpreted strictly.

The POSH law will apply to transwomen both literally and according to the golden rule of
statutory interpretation. To better understand how corporate India treats its LGBT workers, we
conducted the Second Indian LGBT Workplace Climate Survey. Creating a welcoming
atmosphere is crucial to the success of any diversity program.

Forty percent of respondents said they experienced LGBT-related workplace harassment on a

regular basis or sometimes. About two-thirds say they have been subjected to homophobic
remarks at work, and one-fifth say they have been discriminated against by their superiors. The
frequent misconception that these identities are solely concerned with sexual behaviors further
increases this danger.

Institutionalized LGBT-friendly policies have a good effect on workplace culture and allow
LGBT people to be themselves at work, which benefits both the company and its employees.
Contrarily, numerous major companies based in India do not reproduce their LGBT-friendly
policies and practices, for which they have even been acknowledged on a worldwide level, and
this has an obvious detrimental effect on staff morale. 3

3 Udayan Dhar , Ramkrishna Sinha & Zafrulla Khan , THE INDIAN LGBT WORKPLACE CLIMATE SURVEY 2016 -
“

VARTA TRUST MINGLE (2016), https://vartagensex.org/wp-content/uploads/2019/10/1559396942000-mingle-lgbt-

wrkplc-climt-srvy-2016.pdf (last visited Jul 9, 2023).
Numerous studies have collected hard data on the prevalence of sexual assault and harassment
against the LGBTQ community. A UNESCO study4 Approximately 43% of participants in a
study conducted in Tamil Nadu on harassment, bullying, and violence based on sexual
orientation and gender identity (SOGI) experienced sexual bullying as early as elementary
school. About half also said they had been touched improperly, while 38% said they had to listen
to unwelcome sexual comments and 33% said they were threatened with sexual activity if they
didn't comply.

The Guardian's 2019 poll of the LGBT community found that 70% of respondents had
experienced sexual harassment on the job. Several studies have shown that, due to the fear of
discrimination and violence, LGBT persons opt to hide their identities while at work.

They are also underrepresented in management and executive positions. The World Bank SOGI
Task Force found that the "LGBTQ community belongs to the bottom 40%" of society
economically. Only 38% of those who identified as LGBTQ in the 2011 census were gainfully
employed.

PROBLEMS AND ISSUES ARISING

There has been a lot of misunderstanding among Indian corporations and foreign multinationals
with offices in India after the Supreme Court's decision on Section 377, which recriminalized
homosexual behavior between consenting adults. In some circumstances, risk-averse legal
departments have blocked HR efforts, and in others, they have rescinded already implemented
regulations. A common misconception is that all sexual behavior is illegal, whereas in reality
only a subset of it is. It's not illegal to be a member of the LGBT community, and neither are
initiatives to increase LGBT inclusion in the workplace. In addition, the NALSA vs. Union of
India case, a subsequent Supreme Court decision on transgender rights, has been generally
disregarded.

There is currently no established procedure for handling sexual harassment claims made by
workers of non-cisgender gender identities. The PoSH Act has been criticized for allegedly
fostering an environment that is conducive to discrimination in the workplace. It's long past time
for the Act to be updated. It must be more broadly applicable and made to expressly include
people of various genders.5
Employees' faith in the company and satisfaction with their jobs will both rise as a result.
Employees of the opposite sex will have less reason to be fearful of the PoSH Act as a result.
LGBTQ+ employees will also be relieved by this decision since they will finally have a way to
voice their concerns. The assumption of guilt in sexual harassment charges in the workplace is
another issue that opponents have raised concerns about. Since the Act solely protects cis
4 Menon C Sunil, Chakrapani Venkatesan & Jadav Sarita, BE A BUDDY, NOT A BULLY: EXPERIENCES OF SEXUAL
AND GENDER MINORITY YOUTH IN TAMIL NADU SCHOOLS UNESCO (2019),
https://unesdoc.unesco.org/ark:/48223/pf0000368435 (last visited Jul 9, 2023). ”

5 How to draft a gender-neutral posh policy?, UNGENDER (2022), https://www.ungender.in/how-to-draft-gender-

neutral-posh-policy / (last visited Jul 9, 2023).
women, sexism towards males is merely exacerbated. Misleading and nasty complaints help
spread this story.

SUGGESTIONS
To protect its female, male, and transgender workers from sexual harassment in the workplace,
businesses should adopt a policy that does not discriminate on the basis of gender. This policy
should be consistent with the basic rights granted by Article 14, 15, and 21 of India's
Constitution. Companies should make it clear in their rules that they have zero tolerance for
sexual harassment of any kind, and should provide workers the means to report incidents of
sexual harassment in line with those policies. 6 Organizations may also include a similar
provision in their Code of Conduct policies, stating that they will not tolerate any kind of sexual
harassment.

Article 21 of the Constitution guarantees everyone the right to a fair standard of life, while
Article 14 guarantees everyone the right to equality. It is imperative that the institution actively
pursue gender justice at all levels, and foster a working climate that is welcoming to persons of
all gender identities. Organizational policy should express a zero-tolerance approach to sexual
harassment claims that are filed with malice.

Specifically, all workers should fall within the definitions' purview. An employer must make
sure that all workers, not only cis-women, are included in the definition of a complaint in the
policy. Moreover, the policy must employ the word "aggrieved person" rather than "aggrieved
woman" as indicated in the Act in order to broaden the policy's reach and make it gender-neutral.

CONCLUSION

The government should enact gender-neutral sexual harassment regulations to ensure that people
of both sexes are afforded the same level of safety and that no one is unfairly targeted because of
their gender. The Supreme Court's dismissal of a public interest litigation on gender neutral
legislation suggests that the absence of an effective "Social and collective cry" may be to blame
for the delay in promulgation of the same.7 When it comes to creating laws on sexual
harassment, it seems that our MPs have forgotten the guarantee of equality and equal protection
under the law established in Article 14 of the Constitution. Neither the legislative nor the court
has any intention of treating a male victim of sexual harassment any differently than a female
victim, but sadly, male victims are seldom recognized as such.

6 Chirag Patel, REVISITING POSH ACT TO MAKE IT EQUITABLE FOR ALL PERSONS TIMES OF INDIA BLOG (2023),
https://timesofindia.indiatimes.com/blogs/voices/revisiting-posh-act-to-make-it-equitable-for-all-persons/ (last
visited Jul 9, 2023).

7 Seema Sundd, Davesh Bhatia & Damini Bisht, GENDER NEUTRALITY & SEXUAL HARASSMENT LAWS IN INDIA:
“

AN OVERVIEW- EMPLOYEE RIGHTS/ LABOUR RELATIONS - INDIA (2020), https://www.mondaq.com/india/employee-

rights-labour-relations/988146/gender-neutrality--sexual-harassment-laws-in-india-an-overview#:~ (last visited Jul
9, 2023).”
Department of Social Justice and Empowerment issued the following recommendations, in order
to address discrimination and violence against the transgender community, in workplaces8:

a) The private sector must educate employers and employees about transgender concerns.

b) Anti-discrimination rules must be implemented and meaningfully applied to the hiring,

retention, promotion, and employee benefits processes.

c) Transgender-inclusive workplace sexual harassment rules should be implemented.

In conclusion, the present Sexual Harassment legislation system is inadequate in protecting queer
people since it is based on cis-normative beliefs. The legislation has a damaging "single axis"
approach that fails to account for intersectionality.

Frequently Answered Questions (FAQ)

Q1. What is The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act 2013 (POSH Act)?

● On April 22, 2013, the Ministry of Law and Justice enacted the POSH Act. To ensure
that women have a secure place to work free from sexual harassment, this law has been
passed to deter such behavior and provide remedies for victims of sexual harassment on
the job.

● Because sexual harassment is a violation of women's constitutional rights under Articles

14, 19(1)(g), and 21, this act has been passed to safeguard those rights.

● The POSH Act outlined what constitutes sexual harassment in the workplace, how
complaints should be filed and investigated, and what disciplinary measures should be
done if an allegation of harassment is proven.9

Q2. What is sexual harassment?

A2. According to the statute's Section 2n, sexual harassment is defined. Physical contact and
advances, demands or requests for sexual favors, making sexually tinged remarks, displaying
pornography, and other unwanted physical, verbal, and nonverbal conduct of a sexual nature all
fall under the umbrella term "sexual harassment," which can be applied directly or indirectly.

8 Can a trans person file a workplace sexual harassment complaint, UNGENDER (2021), https://www.ungender.in/is-
posh-law-applicable-on-transgenders/ (last visited Jul 9, 2023).

9 State Resource Center for Women & Child Development Department Government of Odisha, SEXUAL
“

HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT &

RULES, 2013 (2014), https://wcd.nic.in/sites/default/files/FAQ_SRCW.pdf (last visited Jul 9, 2023).
”
Section 3 (2) of the Act further elaborates that if any of the following circumstances occurs or is
“

present in relation to or connected with any act or behavior of sexual harassment among other
circumstances, it may amount to sexual harassment- Implied or explicit promise of preferential
treatment in her employment, or implied or explicit threat of detrimental treatment in her
employment, or Implied or explicit threat about her present or future employment status, or
interference with her work or creating an intimidating or offensive or hostile work environment
for her, or humiliating treatment likely to affect her health or safety.
”

“ Q3. Is Sexual Harassment only in physical nature?

A3. No, sexual harassment not only includes physical conduct but also includes verbal and non-
verbal conduct too under this Act.

● Physical conduct:
○ Unwelcome physical contact including patting, pinching, stroking, kissing,
hugging, fondling, or inappropriate touching.
○ Physical violence, including sexual assault.
○ Physical contact, e.g. touching, pinching.
○ The use of job-related threats or rewards to solicit sexual favors.
● Verbal conduct:
○ Comments on a worker's appearance, age, private life, etc.
○ Sexual comments, stories and jokes.
○ Sexual advances.
○ Repeated and unwanted social invitations for dates or physical intimacy.
○ Insults based on the gender of the worker.
○ Paternalistic remarks.
○ Sending sexually explicit messages (by phone or by email).
○ Indecent, vulgar discussion with or in front of a woman
● Non-verbal conduct:
○ Display of sexually explicit or suggestive material.
○ Sexually-suggestive gestures.
○ Whistling, staring.

Q4. Who is an aggrieved woman under this Act?

A4. According to Section 2 (a) of this Act aggrieved woman means:

i. Women of any age, whether or not they are now working, who claim to have been
victims of sexual harassment in the workplace.

ii. In the context of a home or residence, a housekeeper is a woman of any age who
works in a home or residence.

Q5. What is the meaning of a respondent?

A5. Respondent means a person against whom the aggrieved woman has made a complaint.
(Section 2 m)
”