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“I wonder what the experience is like being with someone of same gender (*wink*)”
“Can I watch?”
“Does it (genitals) even work?”
What do these comments have in common?
These are a few comments that are sexually charged that Queer, Trans and Intersex people hear from oblivious and ignorant folks. These comments are designed to “other” Queer, Trans and Intersex folks, to alienate and isolate them from the norm, and to denigrate them making them feel like second-class citizens.
Though India has a long and rich documented history of the existence of Queer, Trans and Intersex (QTI) folks, the treatment from other Indians make it seem like QTI folks are a new discovery or invention. The mysticism that surrounds QTI identities not only seeks to dehumanize QTI folks but also creates narratives that aren’t true or authentic to its subjects i.e QTI folks.
When the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act & Rules, 2013 (“POSH Law, 2013”) came into being, it was a momentous day in India, finally there was a Law that protected womxn from all backgrounds against sexual violations. But does the POSH Law, 2013 apply to the QTI experience? Let’s decode it and find out!
Can Queer womxn file a case under POSH Law, 2013?
Absolutely, all womxn regardless of their sexuality, can file a complaint under POSH. But what are some barriers that Queer womxn experience when filing a complaint? Some of the psycho-social barriers faced by Queer womxn are:
- Stress on having to decide whether sexuality needs to be revealed.
- Not being supported by management.
- Concern about the possibility of fetishization.
- Bias (conscious and unconscious).
- Not being heard or understood.
- Family knowing their sexuality or about their allegation.
- Societal stigma and disgust.
- Being labelled as a pervert.
- And many more…
Can Transwomxn file a complaint under POSH Law, 2013?
In the Anamika v. Union of India & Ors. Case, the courts ordered police to take up the transwomxn complainant’s complaint and file an FIR. The implication is that if the police are required to acknowledge a transgender womxn as a womxn and grant her the same rights as any other cis womxn, the Internal Committee (IC) should also adopt a similar approach. If a transgender womxn lodges a complaint with the IC, they should adhere to the same procedures outlined in the POSH Law, 2013. Simply put, the POSH Law, 2013 now recognizes Transwomxn as the aggrieved.
Can a complaint be filed against women or QTI folx?
‘although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized’, this was observed by the High Court of Calcutta regards a POSH case filed by a complainant against a woman respondent. It goes to elaborate that the language used in the POSH Law, 2013, i.e. “persons” in reference to respondents clearly meant that the POSH Law, 2013 can address cases against women and QTI folks as well.
How does POSH Law, 2013 respond to sexual violations experienced by Transmen & Nonbinary folks?
Though the Act does not make explicit mentions of recourse for Transmen and Enby folks, the onus is on organisations, to go above and beyond and implement best practices and to create a workplace that treats Transmen and Enby folks with respect and dignity. This is a directive stated in the Transgender Persons (Protection of Rights) Act, 2019 and Rules, 2020 (“TPA Law”).
What is the Employer’s responsibility within the gamut of POSH Law, 2013 for QTI folks?
Employers have a responsibility because of the compliance requirements of the POSH Act, 2013 and the TPA Law. Let’s explore what some of these compliance requirements can be and why and how they affect the QTI community:
- Constituting an IC Committee – Though this compliance requirement does not explicitly state that QTI folks need to be on committees but having QTI folks or allies can make a real and intentional difference in combatting bias and bigotry. For example, in one of the sexual harassment cases handled by a Firm wherein the Respondent identified as a Queer person questioned the authority of the IC and if they are trained in handling complaints by/against people of marginalized sexual identities.
- Sexual Harassment Awareness Trainings – These trainings should include the wide gamut of what sexual harassment can manifest as in daily interactions especially against QTI folks. For example, invasive questions about transitioning, deadnaming, misgendering are all things that can be addressed either through conversations or trainings.
- Curate an Inclusive Culture – The Law might be limiting but the workplace norms can be expansive, intentional, and inclusive. This is the best way to implement practices that will make QTI folks feel seen and heard. Some ways organizations can do this is by having gender-inclusive bathrooms, celebrating Queer holidays (other than PRIDE month), having relevant policies in place etc.
- Design a POSH Policy – Having a POSH policy to include QTI folks by changing the language and making it more gender-inclusive either as part of the existing POSH policy or to include in their Anti-Discrimination Anti-Harassment (ADAH) Policy is a great way to ensure equitable redressal mechanisms are in place.
- Displaying POSH posters – Having posters with illustrations of QTI folx and prohibiting sexual harassment experienced by them.
The above compliances are a starting point for ally organisations to get started, it is by no means an exhaustive list of best practices. If you would like a consultation with us on how best to support your organization in this endeavor, you can contact us at connect@equilibrioadvisory.org.
The intention is to marry Law and Culture to create a curated environment that supports, nourishes and empowers your employees to not only be better allies but also better people.
