New Delhi: The International Commission of Jurists (ICJ) Saturday released a report, suggesting measures to ensure that LGBTQ community faces no discriminatory treatment in accessing housing or at work and public places.
The 152-page report titled ‘Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work and Public Spaces in India’ identifies the obstacles that are preventing effective implementation of non-discriminatory policies, and provides recommendations to address them.
The ICJ is composed of 60 eminent judges and lawyers from across the globe.
Following the Supreme Court’s decisions in NALSA and Navtej, which strongly affirmed the human rights of LGBTQ persons, the report identified legal and policy challenges, as well as structural barriers that prevent them from enjoying the full range of human rights. Its findings revealed that LGBTQ (lesbian, gay, bisexual, transgender, qeer) community faces discrimination due to their real or perceived sexual orientation, gender identity and expression (SOGIE). The discrimination, the report said, emanates from the conduct of administrations and police as well as non-state actors. It, hence, recommended awareness campaigns as well as training of all public service officers, including police, on SOGIE.
Among various other things, the report sought penal provisions to prohibit all forms of non-consensual “conversion” or “corrective” therapies/procedures aimed at changing an individual’s sexual orientation or gender identity. It also recommended removal of mandatory medical tests as part of recruitment policies as well as amendment of recruitment process that discriminate on the basis of sexual orientation or gender identity.
These apart, the report also demanded that all legislative measures are executed after effective and meaningful consultation with the LGBTQ community.
In addition to adhering to international conventions guaranteeing economic, social, cultural, civil and political rights to the community, the report demanded amendment of Indian Penal Code provisions pertaining to sexual assault, sexual harassment, disrobing, voyeurism, stalking, rape and gangrape to make them gender-neutral.
It also advocated for a comprehensive Transgender Persons (Protection of Rights) Act that guarantees equal rights to transgenders. This is in addition to a suggestion of a comprehensive anti-discrimination law for prohibiting discrimination on protected grounds, including SOGIE.
The government has been requested by the ICJ to ensure that all administrative bodies provide critical documents, including birth certificates, graduation certificates, marksheets, passports, among others, in preferred name and gender without the need for a proof of medical intervention, through a simple and accessible process.
The report claimed that LGBTQ community often faces discrimination in accessing proper housing. They are either denied housing altogether or segregated into poorly-resourced neighbourhoods. The report said the community also faces violence and harassment from landlords, neighbours, family and police.
In this regard, the ICJ envisioned measures through amendment of state rental laws to ensure access to affordable, habitable, accessible, culturally-appropriate and safe housing for the LGBTQ community.
The ICJ also demanded that the state governments are required to prioritise marginalised or disadvantaged communities, including LGBTQ communities, in housing schemes. It also sought steps towards establishing shelter homes for transgenders in each state.
The report said the LGBTQ community is subjected to unequal access to educational opportunities and discrimination during recruitment. It also said the community faces discriminatory working environment and lack of job security.
The ICJ demanded measures to ensure access to education for all children without any discrimination. It suggested amendments to the Right of Children to Free and Compulsory Education Act (RTE), 2009, to include all children regardless of their gender.
It also recommended enforcement of the provision of this Act, which requires at least 25 per cent of the seats to go to children “belonging to weaker sections and disadvantaged groups in the neighbourhood” wherein disadvantaged group includes “group having disadvantage owing to…gender”.
In addition to educating students on SOGIE, the report also sought discrimination-free environment for gender non-conforming children in public schools by adopting measures, including ending mandatory gendered dress codes.
As for the workplace, the report suggested amendment of laws on sexual harassment to ensure full and equal benefit of legal provisions against sexual harassment to LGBTQ community.
This would naturally entail amendment of the definition of “sexual harassment” under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, to include harassment based on SOGIE. The report also sought amendment and review of all labour laws, including the Equal Remuneration Act, 1976, and service laws to make them inclusive of LGBTQ employees to ensure equal treatment in their hiring, promotion and dismissal.
It further recommended amendment of the Immoral Traffic Prevention Act, 1956, to remove the criminal consequences attached to sex work, which makes sex workers vulnerable to violence, and initiation of legislative measures to ensure safe working conditions for sex workers.
The report suggested repeal or amendment of vaguely-worded laws pertaining to public nuisance, etc., which, it alleged, are routinely used to target the community.
As for specific public places, the ICJ suggested deletion of provision to provide proof of sex reassignment surgery when seeking a change in the gender on passport, and seat reservation for transgenders.
The ICJ demanded that transgenders and gender non-binary persons be able to use the security queue of their choice at airports and other places, and are screened by a person of their preferred gender.