Standing Up for Equality: The LGBTQ Community's Quest for Fair Treatment in India's Government Jobs & Services
Introduction: The Preclude to Progress
The LGBTQ community in India has long struggled for equality in government services. Despite decriminalizing homosexuality by the Indian Supreme Court in 2018, discrimination and unfair treatment towards the LGBTQ community remains a prevalent issue in many government services. Recently, the Government of India objected to the Supreme Court's decision to promote Advocate Saurabh Kirpal to the position of Judge of the Delhi High Court solely because he is gay and would be biased as a result of his outspoken support for gay rights.
In 2019, the Ministry of Health and Family Welfare issued a circular banning specific terms, such as "transgender" and "LGBTQ," in official government documents. This effectively erased the existence of the LGBTQ community from official government records and made it more difficult for them to access healthcare services.
These points demonstrate that the LGBTQ community in India face significant barriers to accessing employment opportunities in the public sector. Discrimination, lack of education which can be proved as per reports published by UNESCO's. They found that educational and training opportunities are often denied to LGBTQ individuals due to harassment, bullying, and violence. In fact, nearly 70% of bullied LGBTQ students in India suffer from anxiety and depression and experience a loss in studies. Shockingly, more than half of LGBTQ students surveyed reported facing physical bullying in high and middle schools, and 43% faced sexual harassment in primary schools. These findings highlight the urgent need for greater support and protection for the LGBTQ community in India, specifically in the field education & employment.
Employment Bias: The LGBTQ Community vs. India's Government.
There are several examples where the government has denied individuals from the LGBTQ community employment in India.
In 2017, a transgender woman, who had completed her training as a clerk, was rejected by the Indian Navy because she did not meet the physical and medical standards for a male candidate.
In 2018, a transgender man was denied a job with the Indian Railways, despite being qualified and having cleared all the necessary exams due to his gender identity.
In 2016, a gay man was denied a job with the Indian Air Force, despite being qualified and having cleared all the necessary exams due to his sexual orientation.
These examples illustrate the ongoing discrimination faced by the LGBTQ community in India in accessing employment opportunities in the government sector. Despite some positive legal developments, such as the recognition of transgender individuals as a "Third gender", which was done by supreme court in 2014 by relying on the judicial interpretation of the constitutional provisions of Articles 14 and 21 which are Right to Equality and Right to Life to all Citizens. The Supreme Court, in the case of National Legal Services Authority v. UOI, recognized transgender individuals as a 'third gender' and held that discrimination based on gender identity is violative of Articles 14 and 21. Even after this, discrimination and barriers to accessing employment opportunities continue to be significant issues for the LGBTQ community in India & still demands some reforms and amendment to the law.
Legal Measures:
To ensure that the government does not discriminate against the LGBTQ community in public employment, several legal measures can be taken:
Amending existing laws and policies to include explicit protections against discrimination based on sexual orientation and gender identity. This can consist of amending the Indian Constitution and other laws, such as the Indian Penal Code (IPC), Indian Contract Act, and Indian Evidence Act, of including explicit protections for the LGBTQ community. For example, Section 377 of the IPC, which criminalized same-sex relations, was read down by the Supreme Court in Navtej Singh Johar v. UOI to exclude consensual same-sex relations between adults from its purview.
Enacting new laws and policies specifically addressing discrimination against the LGBTQ community in public employment. These laws and policies can include measures to prohibit discrimination in the workplace, ensure equal opportunities for LGBTQ individuals in general jobs, and provide remedies for individuals who experience discrimination.
Implementing affirmative action policies for LGBTQ individuals in public employment, such as setting aside a certain number of job vacancies for LGBTQ candidates and implementing outreach programs to encourage LGBTQ individuals to apply for government jobs.
International Perspective:
In the realm of international human rights, the Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly in 1948 serves as a cornerstone of equality and dignity for all individuals, regardless of sexual orientation or gender identity. The UDHR, while not legally binding, serves as a widely accepted standard of human rights that has been acknowledged and upheld by countries worldwide.
Further, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted in 1966, establish civil and political rights, as well as the economic, social, and cultural rights, of all individuals, including those in the LGBTQ community. In addition, several international human rights treaties and bodies focus specifically on LGBTQ rights, such as the Yogyakarta Principles on the Application of International Human Rights Law concerning Sexual Orientation and Gender Identity. These principles outline the legal obligations of states to respect, protect, and fulfill the human rights of all individuals, regardless of their sexual orientation or gender identity.
Conclusion:
In conclusion, the LGBTQ community in India continues to face discrimination and unfair treatment in government services, despite the decriminalization of homosexuality and some positive legal developments. To ensure that LGBTQ individuals can access healthcare, education, employment, and other government services on an equal footing, the government must take concrete steps to prohibit discrimination based on sexual orientation and gender identity and provide equal opportunities for all citizens.
As a signatory to the UDHR, the ICCPR, and ICESCR, India should align its domestic laws and policies with its international legal commitments to eliminate discrimination against the LGBTQ community. By taking concrete steps to recognize and protect the human rights of the LGBTQ community, India has the opportunity to demonstrate its commitment to equality and non-discrimination and to serve as a leader in promoting these values globally.
Ketan Aggarwal is an undergraduate law student at National Law University Lucknow, India, and a Legal Intern at Sai Krishna & Associate.