LGBTQ+ allyship at the workplace

With Pride month gone by, the gaps in the Indian legal landscape that, in effect, deny equal opportunities and safety for the LGBTQ+ community in the workplace continue to remain unaddressed. The legislative vacuum with respect to inclusivity within the workplace has led businesses to take charge in creating safe spaces for the LGBTQ+ community by developing diversity, equity and inclusion (DEI) programmes. Such programmes endeavour to provide equal opportunity in hiring practices and employment, gender-neutral anti-harassment policies, same-sex partner benefits, adoption leave entitlements, gender-neutral restrooms, community partnerships and mentorship. A study by the World Bank in India indicated that anti-discrimination policies and fair treatment of the LGBTQ+ community benefit employers, making the business case for diversity. Stigmatisation and exclusion of the LGBTQ+ community increase economic costs, particularly from productivity lost because of workplace discrimination and health disparities.

The US Supreme Court in Bostock v Clayton County, Georgia held that the termination of an employee solely because they are gay or transgender is unlawful as it amounts to discrimination based on sex, which is prohibited under the Civil Rights Act, 1964. The employers argued that the termination was based on the sexual orientation and gender identity of the individuals and, hence, not based on their sex. The court relied on the but-for causation standard to hold that a statutory violation would occur if an employer intentionally relies in part on an employee’s sex while deciding to discharge them. This, per the court, was because discrimination based on homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex.

The Supreme Court of India, in National Legal Services Authority (NALSA) v Union of India, went a step beyond the reasoning applied by US courts as in Bostock by reading the prohibition of discrimination on the grounds of sex under articles 15 and 16 of the Indian Constitution to include the grounds of gender identity. The court observed that sex is not limited to biological characteristics but includes gender attributes such as self-image and sexual identity or character. Accordingly, the protection under articles 15 and 16 goes beyond discrimination based on the gender binary. Self-determination of gender identity and its expression were also held to be protected by articles 19 and 21 of the Constitution. This was a remarkable win for the transgender community as the ruling recognised a third gender to safeguard their rights under the Constitution, and emphasised the self-determination of gender identity.

The Transgender Persons (Protection of Rights) Act, 2019 (act), was enacted in furtherance to NALSA, and prohibits public and private establishments from discriminating against transgender persons in employment. Such discrimination includes unfair treatment, and denial or termination of employment, and the prohibition applies to recruitment, promotions, benefits and infrastructural adjustments. All establishments are mandated to adopt equal opportunity policies for transgender persons and designate a complaints officer to investigate violations. The act has been criticised for, among other matters, requiring gender-affirming surgery before recognising the change of one’s assigned gender to their self-determined gender. This is contrary to the right to self-determination of gender identity recognised in NALSA.

Beyond the act, the case for anti-discrimination and broader sexual harassment laws for the LGBTQ+ community in India has not seen significant success yet. The Anti-Discrimination and Equality Bill, 2016, a private members bill, lapsed with the dissolution of the Lok Sabha in 2019. Despite the absence of adequate legal safeguards, employers should comply with the act, and introduce and strengthen their DEI initiatives. The Standards of Conduct for Business: Tackling Discrimination against LGBTI People, published by the UN High Commissioner for Human Rights, recommends tackling challenges faced by employers in driving change in workplace culture through effective policies that articulate a commitment to diversity and inclusion, engagement with local stakeholders and building support networks such as employee resource groups.

Building safer and fairer workplaces is the cornerstone of allyship with the LGBTQ+ community in the employment sphere.

Agrima Awasthi is a counsel and Shivanshu Sharma is an associate at Wadhwa Law Offices.