Sec 377 LGBT Employment in India

The Supreme Court of India has held Section 377 of the Indian Penal Code, 1860 (IPC) to be unconstitutional, in so far as it penalises any consensual sexual relationship between two adults, be it homosexuals, heterosexuals or lesbians (Navtej Singh Johar v. Union of India and Ors. (2018) (Johar Judgment). By way of this landmark judgment, the Supreme Court has overruled its earlier decision in Suresh Kumar Koushal v. Naz Foundation (2013), whereby, the validity of Section 377 of the IPC had been upheld.The Johar Judgment comes right on the heel of other progressive decisions given by the Supreme Court in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017) (Privacy Judgment) and National Legal Services Authority v. Union of India and Ors. (2014) (NALSA Judgment). In the Privacy Judgment, while recognising the fundamental right to privacy, the Supreme Court recognised sexual orientation as an essential attribute of privacy. In the NALSA Judgment, the Supreme Court granted legal recognition to transgenders and their gender identity. It also directed the State to take steps to safeguard the constitutional and other rights of transgenders.

The above decisions when read together, signal a shift towards the recognition of the rights of people, based specifically on gender or sexual orientation. The Johar Judgment is also expected to have far-reaching consequences in the areas of employment and workplace policies. The judgment especially calls out the discrimination that is faced by members of the lesbian, gay, bisexual and transgender (LGBT) community. Further, relying on the expansive interpretation envisaged in the NALSA judgment, the Supreme Court has held that the term ‘sex’ as it appears in Article 15 of the Indian Constitution includes ‘gender identity’ and ‘sexual orientation’. Therefore, any discrimination against LGBTs would violate Article 15 of the Constitution, which prohibits the State from discriminating against anyone on the basis of sex.

The conclusion that follows is that in matters of public employment, any discrimination against a member of the LGBT community is prohibited. The direct impact of the Johar Judgment will be on employers who fall under the ambit of ‘State’ under the Indian Constitution, since fundamental rights are enforceable only against State entities.

There have, however, been instances where Indian courts have enforced fundamental rights against private sector entities as well. In any case, non-discrimination at the workplace is not a new concept for the private sector. There are several legislations, such as the Equal Remuneration Act, 1976, the Rights of Persons with Disabilities Act, 2016, as well as the recently notified Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, which prevent discrimination against certain categories of employees in matters related to employment.

However, thus far, there is no statute that specifically prevents discrimination in the private sector on the basis of “sexual orientation”. Having said that, in 2011, the Ministry of Corporate Affairs issued Voluntary Guidelines on Social, Environmental and Economical Responsibilities of Business, under which companies were encouraged to provide and maintain equal opportunities at the time of recruitment as well as during the course of employment, irrespective of caste, creed, gender, race, religion, disability or sexual orientation. Private sector employers therefore, no longer have a free hand in all dealings with their employees.

Even prior to the Johar Judgment, many employers in the private sector, including large multinational corporations were operating support groups for their LGBT employees and had put in place inclusive employment policies. However, many had chosen to stay away from such activities in the fear of being targeted by the police, government authorities and extremist groups. But, with the Johar Judgment, any such fears of harassment arising from their support of LGBT groups can be laid to rest.

Further, employees can be expected to be more forthcoming and open about their sexual orientation and gender identity. The recent dismissal of a senior executive from a major Indian IT company, on charges of making homophobic slurs against an LGBT employee, should serve as a wake-up call for all employers. If an organisation already has in place a clear policy to tackle such situations and adopts a ‘no tolerance’ stance for discrimination/ harassment, it would go a long way in preventing and redressing such situations. A progressive outlook in matters of gender and sexual orientation will also make good business sense for organisations. For instance, a 2014 report of the World Bank[1], indicated that workplace discrimination against LGBT people has a negative impact for the employer due to loss of productivity.

While the Johar Judgment has upheld the fundamental rights and the dignity of LGBT persons, there is still a long way to go before LGBT persons can be at par with their heterosexual counterparts. Some of the key areas that will need a fresh look include personal laws related to marriage, adoption and succession, change in immigration laws to provide visas to same sex partners etc. An area of particular importance to employers will be the amendment of the definition of “family” or “dependents” under social security legislations. However, employers can take certain proactive steps in this regard even today, such as extending spousal benefits to same sex partners under their internal policies/ private benefit schemes. Some companies have in fact, been providing benefits like medical cover to same sex partners of their LGBT employees for some time now. However, in order for this to fructify, discussions with insurance companies and amendments to their existing life and general health insurance policies would also be required. Currently, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) only protects women. However, many employers have adopted gender neutral sexual harassment policies. Further, with the NALSA Judgment holding that the “psychological test” rather than the “biological test” should be followed in determining the gender of a person, even persons who are biologically male but identify as female, could claim protection under the POSH Act.

Employers should also make sure that they follow all statutory guidelines, including the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, in relation to collection, disclosure and transfer of sensitive personal data or information, which includes information relating to ‘sexual orientation’ of an individual. Further, following the Justice Srikrishna Committee Report, the

Personal Data Protection Bill, 2018 has expanded the scope of ‘sensitive personal data or information’ to include ‘sex life’, ‘transgender status’ and ‘intersex status’.

Organisations, especially those who are committed equal opportunity employers must realise that the term ‘equal opportunity’ is no longer limited in its meaning to just equal opportunity between males and females and must embrace the much wider and inclusive meaning of the same by reviewing their existing policies and practices.

[1] M.V. Lee Badgett, “The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of India” (October, 2014).