Rehan Mathur

The Indian Anti-Sexual Harassment Framework is one which is inherently gendered. However, numerous reports and studies indicate widespread sexual harassment within Queer Communities. The law currently does not recognise it due to its unidimensional approach. To protect the rights of the Queer Community, an anti-sexual harassment law with an intersectional lens is the need of the hour.

Introduction

What do a former Mister India, a transgender woman student, a female IAS officer from the Punjab cadre, a queer activist studying at the University of Surrey and an illiterate, lower caste woman working as a volunteer with the Rajasthan government have in common?

All of these individuals, with varying social, economic and cultural backgrounds have been victims of sexual harassment.

Sexual harassment is not just a private sex-based wrong, but, the outcome of a systematic dominance of male-oriented power and suppression.[1] It displays the asymmetric power relations in society and labour market. Many theorists have argued that sexual harassment stems from a threat to the conventional image of men as the provider of the family, posed by working women.[2] As the years passed by and the participation of women in the formal sector increased, there arose a requirement in the law to address this problem. However, is this model all-encompassing in understanding sexual harassment?

Bhanwari Devi’s legal battle (the last individual in the aforementioned list) is one of true courage, from which the present sexual harassment framework in India first emerged. Filling the void present in the statutes at the time, the Supreme Court laid the foundation for sexual harassment jurisprudence through the Vishaka Guidelines in Vishaka v. State of Rajasthan. The guidelines, for the very first time defined sexual harassment and laid down the obligations for employers to prevent sexual harassment at the workplace. The Guidelines acted as the law till the Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter referred to as ‘POSH’). Sexual harassment was also added as a specific offense into the Indian Penal Code, 1860 by the Criminal Law (Amendment) Act, 2013 by the insertion of Article 354A. Prior to the existence of these provisions and the Vishaka Guidelines, victims had recourse only to Article 354 which criminalized assault or criminal force on a woman with an intent to outrage her modesty.

As the name suggests, POSH is an inherently gendered law which by its wording seeks to prevent sexual harassment experienced by an “aggrieved woman”. Similarly, for many, the phrase ‘sexual harassment’ after the much needed #MeToo Movement has crystallized into a gender binary of men against women. However, as the examples quoted above display, sexual harassment is not just limited to this binary, often affecting individuals within the LGBTQ community. Individuals identifying as lesbians, gay, bisexuals, transgenders, queer persons or anything else not within the heteronormative binary of gender have very different experiences while dealing with sexual harassment as compared to the traditional victims of sexual harassment and there may even be variations in the violence faced between different individuals due to intersectionality of multiple factors.

Through the course of this essay, the author aims to analyse the present framework of sexual harassment law in India and its scope with respect to the applicability and protection accorded to the queer community. In this analysis, the author shall note that though there are some positive steps taken, there is still much to be achieved in aiming to protect the queer community from sexual violence and fully achieving their rights due to a poor understanding of queer experiences and cis-normative assumptions made by the lawmakers. Lastly, the author shall briefly touch upon the way forward and how certain socio-legal measures may be beneficial in increasing inclusion.

Sexual Violence and Harassment of the Queer Community

Many surveys have empirically shown the sexual violence and harassment faced by queer individuals on a day-to-day basis. A UNESCO study on Sexual Orientation and Gender Identity (SOGI) based harassment, bullying and violence in Tamil Nadu found that about 43% of the participants faced sexual bullying even in primary schools on the basis of SOGI. Furthermore, about half reported to have been touched inappropriately, 38% experienced having to bear unwanted sexual talk and 33% were threatened to have sex without their consent. 

A similar report by the Swasti Health Resource Centre points out that about 55% of gay men without peer support faced sexual abuse. Mostly these men were still living in the closet, with their parents, having little-to-no access to community-based support structures. Physical violence and emotional torture were not far behind having been experienced by about 52.4% and 46.5% gay men respectively. This survey was conducted in 2015, and it may be argued that the amount of harassment faced by the community might have reduced after 2018, when the Supreme Court read down the part criminalizing gay sex in section 377 in Navtej Singh Johar. However, many in the community contend that nothing much has changed since there has been only legal approval and not societal approval of homosexuality.

These unfortunate trends were visible in other states as well, as an NHRC report highlighted that approximately 52% of Transgender students surveyed in Delhi and Uttar Pradesh faced harassment by students or classmates while 13% were sexually harassed. Another study from the Swasti Health Resource Centre displays those individuals identifying as Transgender face sexual abuse from as early as 5 years, with pre-teen years being the most vulnerable. Interestingly, results from the survey display a vicious cycle where transgenders drop out of formal education due to the harassment faced and without education are forced into beggary and sex work. Here, they are vulnerable to even more sexual violence, harassment at the hands of clients, strangers and partners, with no adequate safety nets.

In general, there exist very few studies on the harassment faced by the queer community, but out of these, there is a striking lack of studies with respect to the harassment faced by lesbian women. A possible explanation may lie in the fact that lesbians’ access to public spaces and consciousness is limited because of their gender in a society which tends to comprehend sexuality and sexual pleasure in masculine terms. Thus, lesbians face double discrimination, first on the basis of their gender in a patriarchal society and second on the basis of their sexuality. This discrimination manifests in a lack of control over one’s lives, being forced to marry men, suppressing their sexualities and being forced into psychiatric treatment by families. All of these factors make lesbians even more easy victims of sexual harassment.

However, one cannot fully understand the nature of sexual harassment and violence faced by members of the queer community and seek to address it through law without first acknowledging the various intersectional identities that exist in the Indian context. It is imperative to use an intersectional lens to evaluate how multiple sources of oppression operate cumulatively to produce a specific experience of subordination, a position taken by the Supreme Court as well. By not viewing the sexual harassment and violence faced by the queer community through an intersectional lens, a ‘single axis approach’ may homogenize and further diminish minority experiences and identities (which are already on the margins of society) in a broader group.

The Legal Position

The POSH Act, which is the most important legislation on sexual harassment, applies to the public and private sectors, and codifies the mechanisms for defining and dealing with sexual harassment at the workplace through internal and local committees. However, the law views the victim only as an ‘aggrieved woman’ and does not provide protection to other genders. The 239^th Parliamentary Standing Committee Report justifies this position of having specific protection on the basis of the abuse and harassment faced by women which puts them at a disadvantaged position in society.

However, this is a problematic position, because it views sexual harassment in a gender binary and completely ignores non-binary and intersex individuals. It is further hard to assume why men and those who do not conform with heteronormativity should be denied the protection of anti-sexual harassment laws like POSH just because women have been in a disadvantaged position for many years. Therefore, POSH takes the easy way out, by focusing on a single identity (woman) where a victim claiming sexual harassment is forced to argue that solely because of her identity as a woman, she was subject to such treatment.

However, as the statistics show in the previous section, sexual orientation can also be one of the reasons for sexual harassment, and thereby, leaves non binary individuals, transgenders and gay men beyond the scope of the law. Lesbians who face sexual harassment from another woman may have a recourse, since Section 2(m) of the Act, defines respondent as ‘a person against whom the aggrieved woman has made a complaint’ as was held by the Supreme Court and Calcutta High Court, thereby allowing for not just male perpetrators of sexual harassment.

However, just this is not enough in recognizing intersectionality, as victims may be apprehensive of revealing their lived experiences due to stigma and “caricaturize themselves so that they fit into prefabricated, rigid categories” envisioned by the law. This may translate into a weaker complaint ultimately leading to the allegations not being proven.

Take for example a situation where a lesbian woman is subjected to sexually coloured remarks when a superior comes to know of her sexuality. If the superior was perfectly normal before they knew her sexuality, it would be clear that the harassment stemmed from the knowledge of her sexuality and not because she was a woman. In such a hostile environment and fear of coming out, how exactly would the woman prove her harassment? Since the law does not recognise such harassment, the woman would be forced to fit her story in the stereotypical heteronormative sexual harassment framework. Such a story would caricaturize her identity into something it is not for the sake of proving her harassment. This would make the harassment more difficult to prove as it did not actually take place on that ground. It is likely therefore, that her complaint would be dismissed making it more difficult to prove her side of the story. Such a position will not change till the law goes beyond these rigid categories.

Section 354A of the IPC, also deals with sexual harassment, however, only envisages a man to be the perpetrator of the crime. Interestingly, Section 354 (1) (i), (ii) and (iv) do not mention the gender of the victim. Only Section 354 (1) (iii) states that showing a woman pornography against her will is sexual harassment. The loophole in these provisions maybe used for the benefit of the queer community as was done in the Delhi HC, relying upon National Legal Services Authority v. Union of India. However, the usage of this loophole may not be sufficient in dealing with sexual harassment cases, as the queer community may face institutionalized discrimination in procedural matters (take the previously mentioned Delhi HC case, where the police did not register the case because the victim was a transgender woman) and may require coming out of the closet to their immediate family, a decision whose harms may outweigh the benefits.

While the Supreme court in both NALSA and Navtej Singh Johar, gave remarkable judgements in furthering the rights of the queer community, there have not been similar legislative pushes. The Transgender Persons (Protection of Rights) Act, 2019 puts an obligation on establishments to not discriminate against Transgenders in relation to employment and termination. It further penalises individuals and extends protections from various form of abuse; sexual, emotional, economic, verbal and physical. However, these provisions only tangentially apply to situations of sexual harassment and lack teeth to be of any real value. The punishment for inflicting such abuse is merely two years and the 2020 rules are extremely vague in allowing the appropriate government to determine the police or administrative preventive measures for provisions for non-discrimination upon their discretion. Similarly, establishments are required to provide for a safe working environment without adequate redressal mechanisms in place. Therefore, these noble aspirations have not yet translated into any sort of substantive inclusion in the anti-sexual harassment framework, thus displaying the need for a change in the cis-normative laws to make inclusion of LGBTQ individuals concrete.

Not taking the law beyond cis-normativity puts the community at the mercy of the courts’ interpretation. While there have been positive developments, such as the inclusion of trans and inter sex women in the expression ‘bride’ under section 5 of the Hindu Marriage Act, 1955, there is scope for confusion. For example, there is no uniformity on whether the definition of a ‘women’ includes intersex, transwomen and this may be used by perpetrators of sexual harassment against these individuals. Such a position is discriminatory towards the community and violates their right to equality.

Another drawback at leaving the law at the judges’ interpretation is the tendency of perpetuating stereotypes in place of legal principles. In Anita Suresh v Union of India & Ors, the Delhi High Court ignored the difficulties in providing evidence in such cases and blindly followed the stereotype of women misusing the law and lying by looking into the past service record of the victim (something not required under the law). Not limited to just the judiciary, stereotypes permeate other institutions such as the police and the healthcare ecosystem as well which hampers their access to justice and basic rights like healthcare.  It is possible that similar stereotyping maybe observed until statutes does not make it inclusive for all the victims, since generalisations and putting LGBTQ individuals in rigid categories remains prevalent even in ‘woke’ circles.

Therefore, there is a dire need for amendments in the sexual harassment laws which change the status quo; there must be movement from a cis-normative standard of gender to a more fluid approach to allow non-binary, intersex, asexual and other such individuals within the ambit of the law. Depending upon only the interpretation of the courts may prove to be ineffective for the actualisation of the community’s constitutional rights.

The Way Forward

While there have been positive developments in the field, such as the creation of gender-neutral sexual harassment guidelines by the UGC, if any amendments to the current legal framework are to be effective, a simultaneous change must occur in what is considered by society to be normative. This is important to ensure queer victims feel comfortable coming forward with their claims in environments they are already marginalized in.

Patriarchal practices must be dismantled which centre around family reputation and warped conceptions of honour. These practices gravely impact the reporting of such crimes and the consequences faced by victims when crimes are actually reported. . Continually ostracising queer individuals also makes it difficult for them to speak out against cases of harassment perpetrated within the community, as individuals find it difficult to call out people from an already marginalized group. This is clarified by a response given by a male who was raped by his ex-boyfriend and a match from a dating app. When asked if he reported the incidents he stated, “How could I, when your own people do this to you?” This situation was worse before Navtej Singh Johar, where the queer individual alleging harassment would also be under the fear of prosecution under Section 377 and would be forced to internalize their pain.

Decriminalization is only the first step in achieving equality for the community. To make sexual harassment law inclusive keeping in mind the skewed power dynamics in workplace environments, systematic discrimination of the community at the hands of institutions, an equality and anti-discrimination statute maybe the need of the hour. Such a legislation would work in tandem with the gender-neutral amendments to POSH and section 354A to allow effective redressal mechanisms to prevent discrimination in both the private and public sector. Such a law would for example, protect individuals from sexual harassment on the basis of their sexuality, in places extending beyond the workplace and provide them with redressal mechanisms for compensation for violations which a penal statute like Section 354A may not necessarily provide for. While POSH does cater to women in the informal sector, Local Committees, which are the primary redressal mechanisms for such women still remain extremely non-existent and ineffective. A 2018 study found that out of 655 districts, only about 29% had formed Local Committees to deal with complaints of women working in the informal sector. Given that members of the queer community often find work in informal workplaces, a newer statute must envisage different redressal mechanisms. An employment tribunal along the lines suggested by the Justice Verma Committee may be a better starting point.  

Conclusion

To conclude, there exists a lacuna with respect to the inclusion of queer identities in the current Sexual Harassment law regime due to its cis-normative assumptions. The law does not take into consideration, aspects of intersectionality and follows a harmful ‘single-axis’ approach. However, empirical research shows that sexual harassment exists beyond the gender binary and affects the queer community. Though there have been some positive responses in the courts, relying solely on interpretation may leave gaps and be problematic based on stereotypical tendencies in dealing with sexual harassment cases. Thus, there exists a dire need to amend the current sexual harassment laws to accord protection to those falling outside the gender binary and the traditional definitions of victims and respondents.

Amendments of any sort, however shall not be effective if they are drafted without any consideration for social realities of patriarchy, stigma which must also be addressed. Without tackling these evils, victims from the queer community may not be empowered to seek justice for the sexual harassment and violence they face. Therefore, a combination of both social and legal solutions is the need of the hour for bringing queer identities within the ambit of the sexual harassment framework to actualize their constitutional rights.

The author is a second-year undergraduate student at the National Law University, Delhi.

[1] MacKinnon CA and Emerson TI, Sexual Harassment of Working Women: A Case of Sex Discrimination (Yale University Press 1979)

[2] Ibid