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The Inclusion Of Queer Identities In The Indian Anti-Sexual Harassment Laws

A survey conducted by The Guardian in 2019 revealed that 70% of lesbian, bisexual, transgender and gay (LGBT) community are sexually harassed at places of work. According to this survey, women from LGBT community have been much more likely to experience undesirable touching and sexual assault at workplaces.[1]

Sexual harassment including unwanted touching of the breasts, genitals or buttocks, or attempts to kiss them, has been reported by more than 21 percent of the women belonging from LGBT community and a significant percentage of LGBT women had been seriously sexually assaulted and raped at work, this phenomenon is referred to as a 'secret epidemic.'

A lot of studies and surveys conducted globally also shows that lesbian and bisexual women are more venerable to sexual harassments, ex- A survey conducted by Centers for Disease Control and Prevention's, United States shows that more than half of lesbian and bisexual women experience sexual harassments, stalking as compared to straight women.

Also, at work places these women from LGBT community are brutally harassed and had experienced higher levels of sexual harassment and sexual assault like unwanted touching, unaccepted comments and assaults.[2] There is also a misconception prevailing in the society that these identities solely focus on sexual activity and people often get influenced by these stereotypes and makes sexual comments and ask inappropriate questions about LGBT person's sex life.

Non-Inclusion of queer within the anti-sexual harassment laws (section 354 IPC and POSH Act) is caused in two different ways. Firstly, non-recognition of same gender harassment which is caused within the same sex and secondly, harassment against transgender. The main objective of the anti-sexual harassment laws is to protect women from sexual harassment. As there is lack

of explicit indication of inclusion of women within the definition of 'respondent' under section 2(m) of the POSH act and the expression 'man commits' used under section 354A IPC, both distinctly indicates that same-sex harassment is not being recognized by the Indian laws.

Another objective of section 354 IPC is to prosecute men who commits the offence of sexual harassment, nevertheless when the same offence by men occurs within same gender or against transgenders, it never gets prosecuted in accordance with the law. Thereby excluding lesbians, gays and transgender from the ambit of anti-sexual harassment laws.

Same Gender Sexual Harassment

In the landmark judgment of Navtej Singh Johar vs Union of India,[3] the Apex Court held section 377 of the Penal Code to be violative of the fundamental rights of the LGBT community and recognized homosexuality to be normal overruling all the previous judgments against homosexuality.[4] It was additionally held by the court that discrimination in opposition to a man or woman on the idea of sexual orientation is deeply offensive to the honour and self-worth of the Individual.

Sexual Attraction causes Sexual Harassment between same gender
Attraction closer to identical or contrary sex are both clearly same. Statistics from various sources demonstrates attraction towards people of same sex and document victim of sexual violence.

Research over a long time shows that sexual orientation tiers alongside a continuum, from specific attraction to the alternative sex to unique enchantment to the same gender.

Therefore, it is significant to recognize the causal link between sexual attraction within individuals of same genders and existence sexual harassment between them.

When a person sexually harasses an individual of the other gender, a presumption arises that the harassment is "because of the sufferer's gender. The element of causation is self-obvious and therefore not often disputed by the respondent. However, in same gender harassment cases, by contrast, causation is plenty much less glaring and may be hard to prove.

The Supreme Court of U.S held that attraction theory can be used to determine causation in cases related to same-sex sexual harassment.[5] It is beyond any doubt that the attraction theory works in same-gender harassment cases, and if the conditions for the application of attraction theory exist, same-gender harassment is similar to opposite-gender harassment.

Homosexuality may be used to reveal a habit of selection on the basis of sex within the choice of sexual partners, and attraction can be used to infer that the habit is relevant. Therefore, the causation here is selection of the victim based on gender.[6]Sexual attraction and harassment is related to each other and therefore it important to understand the link.

Same gender sexual harassment- 'harassment of women'

Criminal Law on same gender sexual harassment
Under the criminal law, the concept of sexual harassment and other related offences such as Voyeurism, Stalking, using criminal force,[7] are framed in a manner which implies that these offences can be committed only by 'man' against women. The expression 'Any man commits' used under Section 354 A[8] makes it more comprehensive, and shows that the same-gender sexual harassment isn't being known by way of the Penal code.

Furthermore, Section 354 A of Indian Penal Code[9] states that a man making bodily contact and advances involving unwelcome and express sexual overtures or worrying sexual favors or making sexually colored comments, will be guilty of the offence of sexual harassment. This provision is a clear indication of non-recognition of same gender harassment and simplest pertains to a person being concerned inside the offence, which aspect needs to be factored in at the same time as appreciating the connotation of "sexual harassment."

The penal code encompasses much wider scope for sexual harassment unlike POSH as it is only confined to workplace. Moreover, the rules of POSH are only for remedies whereas IPC penalizes the same offense. Therefore, when a woman gets harassed by another woman, she has no remedy available to her under the criminal law which is much extensive in its application.

POSH Act on same gender sexual harassment
In the case of Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Ors,[10] same gender sexual harassment was recognised by Calcutta High Court. This judgment triggered the necessity for a gender-neutral law on sexual harassment in India. In this case, the action of the Internal Committee of Vivekananda College was challenged as it refused to simply accept a criticism below this Act at the ground that the complainant and the respondent belonged to the equal gender.


It was held by the Court that taking into consideration the dynamicity of the society and its adaptation to new norms, it is not improbable to consider same gender complain of sexual harassment.

It was observed that section 2(m) which defines respondent under the POSH contains the word "persons." Thus, it includes persons of all genders and there is nothing in Section 9 of the 2013 Act to reject a same-gender complaint under the Act and section 2(n) is not a static concept and it is important to interpret the same considering the social background and perspective.

Furthermore, the Court concluded that:
"A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section2(n), irrespective of the sexuality and gender of the perpetrator of the act."

This landmark judgment clarified that sexual harassment complaints in opposition to any other person of the same gender is maintainable under the PoSH Act.[11]

International Recognition and Acceptance of same sex harassment
Same sex harassment is one of the most controversial issues under anti-sexual harassment laws which has begun to emerge all over the world under many jurisdictions. Most of the legislation mentions sexual harassment in imperial terms- harassment of "a person" by "another", which could be similarly interpreted but the difficulties arise in which both the person are assumed through the courts to be heterosexual. These kinds of difficulties are less possibly to rise up in systems which define sexual harassment to consist of sexual conduct independently of the perception of sex discrimination.[12]

The U.S Court within the case of Oncale v. Sundowner Offshore Services, Inc.[13] held that discrimination based on sex consisting of identical-gender sexual harassment is actionable underneath the civil rights act, there is nothing in the legislation that always barred a claim of discrimination because of sex, simply because the plaintiff and the defendant, were of the equal sex.[14] The Recognition of same-gender sexual harassment claims levels from complete rejection to complete acceptance of same-gender claims at the equal foundation as contrary sex claims inside the United States under Title VII of the Civil Rights Act.

The United Nations entity for gender equality and the Empowerment of Women acknowledges that sexual harassment is any unwelcomed behavior of a sexual nature that could fairly be expected or be seemed to cause offence or humiliation to every other and can occur between people of the alternative or same sex and each man and women can be both the victims or the offenders.[15]

Same gender sexual harassment- 'harassment of men'
Preventive measures should be adapted in order to counter same-sex harassment of men. In India the laws related to sexual harassment and rape only talks about harassment of women and solely recognizes women to be the victim of sexual harassment, moreover, there is no law or statute which protects men from act of harassment.

Some International organizations in order to identify the victims of sexual harassment reacted to possibility of harassment of men within same sex i.e, when men get harassed by another men by recognizing and prohibiting this forms of behavior.

Indian Penal code under section 354 A denotes that 'man commits' the offence of sexual harassment, nevertheless, it has been never interpreted that the victim can also be a man keeping in mind the dynamicity and changing nature of the society. Furthermore, the Calcutta high Court recognized same sex harassment where the victim and the perpetrator both were females.[16]

The high court held that the definition of "respondent"[17] underneath the Act, really suggests that same-sex allegations can also be filed, additionally the idea of "sexual harassment" cannot be static however has to be interpreted against the stage of the social perspective.[18]

In a comparable view, same sex sexual harassment against man needs to also be regarded as sexual abuse of men by way of men is a extreme social trouble of gender inequality.[19] Moreover, sexual abuse of men via men is frequently ignored and inextricably connected to sexual abuse of women via men. The illusion is preserved that men are sexually inviolable, hence evidently superior, because the sexual abuse of men by men is kept invisible.

Sexual Harassment Against Transgender

The judiciary in the National Legal Service Authority vs Union of India, judgment recognized the transgenders and accorded them the position of the "third gender" giving them constitutional equality. Transgenders have been victimized to sexual offences for decades which includes stalking, trafficking, sexual harassment at place of work and otherwise and so forth, yet there is no law which protects them from such acts.

The lack of gender-neutral criminal law related to sexual harassment increases the vulnerability of the transgenders as they are already subjected to a discrimination owing to narrow mindset of the society. It has been documented under various studies that transgenders often face sexual and physical violence[20] and also serious human rights violations.[21]

Protection of Transgender from sexual harassment under the POSH
The POSH Act within section 2(a) defines 'aggrieved women' and recognizes that the complainant under the act can only be a 'woman' which eliminates the possibility of inclusion of transgenders and men. It has been formulated in order to protect women from harassment and intended not to be gender neutral, as also the title suggests, it creates a framework for aggrieved women.

Moreover, there is no decision by the judiciary which protects the interest of trans people who identify as a woman and thereby include them within the scope of section 2(a) of the Act. However, by interpretating the POSH law, it will be applicable to trans women as well.[22]

The decision of the Supreme Court in the National Legal Service Authority vs Union Of India case made it obvious that transgender have been provided with the freedom to work anywhere without any discrimination, this mean there is possibility of them being subjected to sexual harassment in the workplace. Consequently, the POSH which aims to provide a harassment free environment within the workplace must be applicable to the trans women as they are also the victims.

Furthermore, the Calcutta High Court held that sexual harassment is dynamic concept which should be interpretated against the stage of the social perspective and person of any gender might also experience threatened and sexually confused. As transgenders are identified as the third gender, therefore they should also be ensured protection even though there is lack of clarity on application of the POSH Act to transgender persons. Also, the Transgender Act along with the NALSA judgment, apparently, provides suggestion that POSH would provide protection to a transgender woman.

Protection of Transgender from sexual harassment under the IPC
Section 354 IPC deals with every form of sexual offences including voyeurism, stalking, etc. and the word "any woman" used under this provision indicates that this is only applicable for the protection of women and does not include transgender and male. The transgender community faces a lot of oppression by the society due to their gender.

In the case of Anamika v. Union of India & Ors., the High Court of Delhi held that the cases filed under section 354 A of the Penal code via transgenders may be registered and proceeded in accordance with law and prolonged the constitutional validity of clauses (i), (ii) and (iv) of sub-section (1) of Section 354A of IPC, to the quantity that they will be interpreted to exclude sufferers of sexual harassment who are transgender.

Transgenders are already subjected to certain levels of harassment because of their gender and as they belong to a rare group of people with different body features. Therefore, through this judgment the judiciary intended to include transgenders under the protection of law and to not exclude them from the safety of the society.

It was held by the court that- "if a cognizable offence under the provision of Section 354 A IPC, in particular sub clause (i) , (ii) and (iv) is made out on the complaint of a transgender, the same shall be registered in accordance with law…"

As the penal code encompasses much wider scope for sexual harassment unlike POSH which is only applicable to workplace, this judgement becomes very extensive in this application providing protection from harassment to transgender.

Violation Of Fundamental Rights By Non-Inclusion Of Queer

Non-Inclusion of queer identities under the anti-sexual harassment laws causes violation of Fundamental rights. The right to equality and the right to life and personal liberty are relevant to all everyone and non-inclusion of gender minorities causes violation of these fundamental rights.

Violation of the right to equality
Article 14 of the Constitution provides the right to equality to every human being.[23]'Equality' is a concept that lets in differential treatment but it prevents discriminations that are not justified.[24] Differential treatment does not prima facie amount to violation of Article 14, nevertheless it is violated when there is no reasonable foundation.[25] Non-inclusion of queer identities under the ambit of anti-sexual harassment laws (IPC section 354 A and POSH) does not stand the validity of Article 14 as the discrimination is not based on an intelligible differentia and there is no rational nexus.

The absence of explicit indication of inclusion of women within the definition of 'respondent' under section 2(m) of the POSH act and the expression 'man commits' used under section 354A IPC,[26]both distinctly indicates that same-sex harassment is not being recognized by the Indian laws. Consequently, only sexual harassment by men is being penalized and harassment by women against another women remains unaccepted.
Therefore, there is no reasonable classification as the nexus of both of these provisions is to protect every woman from the evil of sexual harassment. In similar view, another objective of section 354 IPC is to prosecute men who commits the offence of sexual harassment, nevertheless when the same offence by men occurs within same gender or against transgenders, it never gets prosecuted in accordance with the law.

Violation of right to Life and personal liberty
Both the terms "life" and "personal liberty" have been given a very broad definition that encompasses a wide range of rights. Its deprivation is only possible following the legal procedure.[27] The Supreme Court has given the term "life" a broad interpretation, giving it a wide range of meaning.

In the case of Munn v. Illinois,[28] The Court cited Justice Field's statement that "by the term "life" as employed here, something more than a simple animal existence is implied." As a result, it encompasses not just physical existence but also the quality of life. In the case of Maneka Gandhi vs. Union of India,[29] The Supreme Court ruled that the right to life enshrined in Article 21 of the Indian Constitution is not only a bodily right, but also encompasses the right to live with dignity. Article 21 also recognizes everyone's right to live in dignity, as established in Francis Coralie Mulin v. Administrator, Union Territory of Delhi.

The right against sexual harassment is entrusted to everyone as part of their right to life and right to dignity within Article 21 of the Constitution. Sexual Harassment of women is violative of one of the most important fundamental rights, specifically, the Right to Life enshrined in Article 21.

The Supreme Court in the case of Union of India and Ors v. Mudrika Singh identified the Right against sexual harassment as a fundamental right within the ambit of Article 21 of the Indian Constitution.[30] The Apex Court held that the right against sexual harassment is established in all people and it is a facet of the right to life and right to dignity beneath Article 21,[31] suggests the importance of offering this right to all genders.

Furthermore, it was affirmed by the court that the fundamental rights granted in the Indian Constitution will be relevant equally to the transgenders and they are given the position of 'third gender' while recognizing them, and providing constitutional equality. As article 21 is applicable to every 'person' therefore, right against sexual harassment which is a part of right to life, must also be applicable to all queer identities including transgender, lesbian and gays and consequently, their non-inclusion causes violation of the Right to life.

End-Notes:
  1. Frances Perraudin, "Survey Finds 70 per cent of LGBT People Sexually Harassed at Work", The Guardian (2019) can be assessed at https://www.theguardian.com/uk-news/2019/may/17/survey-finds-70-of-lgbt-people-sexually-harassed-at-work.
  2. "Sexual harassment of LGBT people in the workplace", can be assessed at thttps://www.tuc.org.uk/sites/default/files/LGBT_Sexual_Harassment_Report_0.pdf
  3. Navtej Singh Johar v. Union Of India, AIR 2018 (SC) 4321.
  4. Suresh Kaushal and Anr v. NAZ Foundation and Ors.
  5. Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
  6. Winter 2004 Reconsidering Attraction in Sexual Harassment Martin J. Katz University of Denver College of Law, can be assessed at [email protected]
  7. Section 354 A-D Of the Indian Penal code
  8. Section 354 Of the Indian Penal code
  9. Section 354 A Of the Indian Penal code
  10. Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Ors, WPA. 9141 of 2020
  11. https://www.nishithdesai.com/SectionCategory/33/HR-Law-Hotline/12/65/HRLawHotline/4882/1.html
  12. id
  13. Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998).
  14. https://www.lexisnexis.com/community/casebrief/p/casebrief-oncale-v-sundowner-offshore-servs
  15. https://www.un.org/womenwatch/uncoordination/antiharassment.html
  16. Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Ors
  17. Section 2 (m) of the 2013
  18. Section 2(n)
  19. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1576&context=lqnotes
  20. Human Rights Violations against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India, (2003), Peoples' Union for Civil Liberties, Karnataka (PUCL-K). Retrieved from on 3-1-2014.
  21. United Nations Committee on Economic, Social and Cultural Rights in its Report of 2009
  22. https://www.ungender.in/is-posh-law-applicable-on-transgenders/
  23. Article 14 Of Constitution of India, 1950.
  24. M. Nagaraj v. Union of India, (2006) 8 SCC 212.
  25. State of Rajasthan v. Shankar Lal Parmar, (2011) 14 SCC 235.
  26. Section 354 Of the Indian Penal code, 1860.
  27. Francis Coralie Mullin v. Administrator (Union Territory of Delhi), 1981 SCR (2) 516.
  28. Munn v. Illinois, 94 U.S. 113 (1876).
  29. Maneka Gandhi v.Union of India, (1978) 1 SCC 248.
  30. Union of India and Ors v. Mudrika Singh, (LL 2021 SC 705).
  31. Article 21 Of Constitution of India, 1950.

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