Wanted: An anti-discrimination law for LGBTQI Indians

A recent ordinance passed by the City of Manila could provide the model for such a legislation

On October 29, Isko Moreno – Mayor of the City of Manila – signed the Manila LGBTQI Protection Ordinance of 2020, or Ordinance No. 8695. This new law might seem like a drop in the ocean but it can have implications far beyond the capital city of the Philippines, if it is used to advocate for reforms in other Asian countries. Activists, lawyers and policymakers in India will hopefully draw on this ordinance while thinking about how to end discrimination against LGBTQI individuals, as a follow-up to the celebrated Supreme Court judgement of 2018 that led to the reading down of Section 377 of the Indian Penal Code.

The City Council of Manila describes it as “an ordinance for the protection of the rights of lesbians, gays, bisexuals, transgenders, queers and intersex (LGBTQI) in the City of Manila against any and all forms of discrimination solely on the basis of sexual orientation, gender identity, expression (SOGIE) and providing penalty for violation thereof.” It is an important document for LGBTQ Indians who want to push the envelope beyond decriminalisation of “carnal intercouse against the order of nature,” and work towards establishing legal protections in several areas including education, housing and employment.

This ordinance spells out forms of discrimination that are punishable by law. Here are some examples: Denying access to medical services, limiting opportunities for promotion in workplaces, imposing disciplinary sanctions against students, subjecting people to verbal insults on social media platforms, refusal of entry to malls and hotels, unjust detention and involuntary confinement, turning down applications for licenses and other documents to be issued by government authorities, not allowing people to rent houses, etc. solely because of their sexual orientation, gender identity and/or expression.

A lot of thought has gone into this ordinance. It seeks to hold accountable not only individuals but also organisations including educational institutions, corporations, and associations. It mentions the creation of the Manila Gender Sensitivity and Development Council to document cases of discrimination, monitor complaints regarding violations of the provisions, to assist victims of discrimination with legal representation and psychological assistance, and to review various policy documents to ensure that they are free of “discriminatory statements and provisions.” It guides LGBTQI individuals about the process to file complaints. It also mentions a specific time frame within which gender-neutral toilets must be constructed.

Why should India learn from Manila? In an article titled ‘The Role of Foreign Precedents in a Country's Legal System’ (2010), published in the National Law School of India Review, Justice K G Balakrishnan writes at length about how Indian courts have “looked to international as well as comparative sources as part of creative strategies to read in previously unenumerated norms into the 'protection of life and liberty' guaranteed under Art. 21 of the Indian Constitution.” According to him, the tradition of building on foreign precedents has helped the Supreme Court extend constitutional protection to “several socio-economic entitlements and advanced causes such as environmental protection, gender justice and good governance among others.”

A recent example of this practice is the judgement by former Chief Justice of India Dipak Misra and Justice A M Khanwilkar in the case of Navtej Singh Johar & Others v. Union of India in 2018. They refer to legal precedents from other courts and jurisdictions, including a judgement of the Supreme Court of the Republic of Philippines in the case of Ang Ladlad LGBT Party v. Commission of Elections. An LGBT organization in the Philippines was denied the opportunity to register as a political organisation on the grounds of allegedly offending religious beliefs and public morality. The Commission on Human Rights intervened on their behalf, and the court upheld the organisation’s right to participate in the political process.

The Manila LGBTQI Protection Ordinance of 2020 can provide a legal blueprint to help Indian policymakers devise strategies to address experiences of discrimination in the Indian context. Based on a study by the community-based organisation, Sahodaran, UNESCO had published, Be a buddy, not a bully! Experiences of sexual and gender minority youth in Tamil Nadu schools (2019). In this report, Sunil Menon C, Venkatesan Chakrapani and Sarita Jadav draw attention to “the absence of SOGIE-related anti-bullying school policies and reporting mechanisms” that feed the “fear of retaliation or negative consequences” among students who face discrimination.

Another report that deserves serious attention is Living with Dignity: Sexual Orientation and Gender Identity Based Human Rights Violations in Housing, Work, and Public Spaces in India (2019) published by the International Commission of Jurists. In the preface, Justice Ajit Prakash Shah notes, “In order to make the promises of Navtej a reality, India needs to make its broader law and policy frameworks more inclusive of, and responsive to the concerns of LGBTQ persons and communities. This will require an overhaul of some systems and re-development of commonly accessed institutions and spaces, including schools, workplaces, families, public transport and even streets.”

It is true that institutions are resistant to change but clearly defined policies can fuel small transformations and make a huge difference in the long run. Parmesh Shahani has studied this phenomenon in the context of corporate India. His book Queeristan: LGBTQ Inclusion in the Indian Workplace (2020), published by Westland, offers a five-step guide for companies to make their workplaces inclusive: 1. Set in place strong policies and specific benefits for LGBTQ employees 2. Actively recruit LGBTQ employees 3. Create an LGBTQ-friendly work culture within the company 4. Address the specific circumstances of trans employees 5. Become an advocate for LGBTQ inclusion outside your company.

Shahani writes about various companies that have instituted policies to protect employees from discrimination on the basis of sexual orientation, gender identity, and expression. However, not all LGBTQI individuals in India are covered by such policies. That is why an anti-discrimination law is needed. As Justice Misra and Justice Khanwilkar state, “The constitutional framers could have never intended that the protection of fundamental rights was only for the majority population. If such had been the intention, then all provisions in Part III of the Constitution would have contained qualifying words such as 'majority persons' or 'majority citizens'...constitutional courts are under an obligation to protect the fundamental rights of every single citizen.”

(Chintan Girish Modi is a writer, educator and researcher who tweets @chintan_connect)

The views expressed above are the author’s own. They do not necessarily reflect the views of DH.