The good, the bad & the inadequate

In its current form, India’s sexual harassment law does not hold any space for the experiences of a trans person in a workplace, or for an LGBTQIA+ who face harassment, write Roop Sen & Uma Chatterjee

When we look at ‘sexual harassment in the workplace’ or ‘sexual harassment’ itself as a phenomenon, especially in the corporate sphere, there is a tendency to legalise the entire issue, framing it in the context of the workplace’s harassment policy (if there is one), which is supposed to be based on the extensive terms provided under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. For all legal purposes, the Indian law on sexual harassment is a ‘good law’, being that it covers most of the usual bases by having a wide definition of sexual harassment, calling for the setting up of internal grievance redressal mechanisms in workplaces and detailed enquiry procedures, talking about punishments and penalties and making employee workshops mandatory.

Only when the law is put in practice, do we see that sexual harassment itself is not a black and white issue with a fixed definition but a phenomenon with interspersing social, cultural, power-related, relationship-related and of course, gender and sexuality-related factors. Even with full compliance with the law in workplaces, by setting up internal committees and carrying out workshops, we find that incidents of sexual harassment can be a frequent reality in the modern workplace and that somehow, workplaces still find it challenging to respond to many of them.

This begs the question, is the law inadequate and, if so, how? The first point of issue with the sexual harassment law is in its title ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’, which itself makes it clear that this is a law that applies to ‘women’ victims only. Perpetrators of sexual harassment, however, are gender-neutral, meaning that technically if a woman allegedly harasses another woman at work, she can be held liable under the sexual harassment law. This has been lauded by some as progressive since many crimes against women primarily contemplate male perpetrators, lending credence to the stereotypical impression of a harasser (male) and a victim (female).

Further, at the time of drafting the law, the possibility of a gender-neutral law was seen to have been brought up, with the debate captured as ‘male vs female’ with men’s rights groups demanding gender neutrality to enable men to make complaints.

The Parliamentary Standing Committee later recommended the law to only apply to women as ‘women have been at a disadvantaged position and have been discriminated, abused and harassed’. The committee fell back on the ideology that rampant sexual harassment disempowers women, specifically, and recommended a gender-specific law. The overall objective was to increase female workforce participation and ensure that a robust mechanism existed to protect women’s employment rights and the committee stated that a ‘balanced and well-structured mechanism giving equal opportunity to both the aggrieved woman and respondent with adequate safeguards and checks is unlikely to give any biased protection to women workforce’.

The lack of gender neutrality of the Act may have been enacted keeping in mind the gender binary and historical (and prevailing) power imbalances between cis-males and females but in spite of being relatively recent, the law has somehow failed to acknowledge the existence and presence of other genders and sexualities in the workplace.

Although the law contemplates the offence of sexual harassment in the nature of a ‘gendered’ offence that is related to the sex of the people involved, there is no recognition of any diversity beyond male, female and heterosexual in its provisions.

Lawyers and activists have discussed the implications of the gender specificity of the sexual harassment law on gender-variant persons and LGBTQ employees who may undergo workplace harassment and have no legal recourse, whatsoever. In the past decade, India has arguably come a long way, judicially and legally, acknowledging its LGBT population through landmark judgements like the Navtej Singh Johar judgement that ‘decriminalised homosexuality’ and the National Legal Services Authority (NALSA) judgement in 2014 that affirmed the fundamental rights of transgender individuals.

The Supreme Court waxed eloquent, highlighting various instances of discrimination and harassment meted out to persons of these communities, as well as a plethora of international laws and human rights principles, with a view to affirming the need to recognise these persons’ rights to equality, non-discrimination and life with dignity.

These judgements could be said to be watershed moments in LGBT rights in the country but over the past several years, it has been seen that there is still much that needs to change in the way that LGBTQIA+ are perceived and treated in many parts of India. Although some parts of the elite, urban India are more accepting of non-heterosexual sexualities, the majority of openly queer India experiences rampant homophobia (and in the case of trans persons, transphobia) that can severely limit their professional and career options.

Studies have also shown that transgender and LGBTQ persons are still closeted about their sexuality in the workplace for fear of discrimination and more often than not, are ridiculed and discriminated against when they do come out.

In its current form, India’s sexual harassment law does not hold any space for the experiences of a trans person in a workplace, or for an LGBTQIA+ who face harassment.

(An excerpt from ‘Power, Sexuality and Gender Dynamics at Work’ by Roop Sen and Uma Chatterjee, published by SAGE Publications India/SAGE Response.)