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Rights of LGBTIQ+ Persons

  • 26 May 2022
  • 7 min read

For Prelims: ILO, United Nations, IPC, Fundamental Rights

For Mains: Issues Related to Transgenders, Social Empowerment

Why in News?

Recently, International Labour Organisation (ILO) released a document on “Inclusion of LGBTIQ+ persons in the world of work”. It provides certain recommendations to ensure equal opportunities and treatment for LGBTIQ+ persons at work.

  • LGBTIQ stands for Lesbian, Gay, Bisexual, Transgender, Inter-sex and Queer.
  • The plus sign represents people with diverse SOGIESC who identify using other terms. In some contexts, LGB, LGBT or LGBTI are used to refer to particular populations.
    • SOGIESC stands for sexual orientation, gender identity, gender expression and sex characteristics.

What is the International Labour Organization?

  • It is the only tripartite United Nation (UN) agency. It brings together governments, employers and workers of 187 member States (India is a member), to set labour standards, develop policies and devise programmes promoting decent work for all women and men.
  • Established in 1919 by the Treaty of Versailles as an affiliated agency of the League of Nations.
  • Became the first affiliated specialized agency of the UN in 1946.
  • Headquarters: Geneva, Switzerland

What are the Recommendations?

  • National Policy and Labour Law Review:
    • National policy and labour law review will allow governments to assess their country’s work policy environment for LGBTIQ+ persons.
    • This will allow the identification of concrete steps for improving the legal and policy environment, ending discrimination and exclusions, and complying with international instruments.
      • Around the world, LGBTIQ+ persons face harassment, violence and discrimination on the basis of sexual orientation, gender identity, gender expression and sex characteristics.
      • Discrimination has an economic cost not just to LGBTIQ+ persons and their families but also to enterprises and national economies.
  • Launch Social Protection Programmes:
    • It recommended member countries, employers’ organisations and representatives of workers to launch social protection programmes to remove barriers that LGBTIQ+ persons face in the society.
  • Facilitate Consultation:
    • In addition to social dialogue with employers' and workers' organizations, consultation with LGBTIQ+ communities are crucial.
      • This will allow the identification of barriers faced by LGBTIQ+ persons when entering the labour market and accessing government schemes, including those on social protection.
  • Work with Small and Medium Industry Associations:
    • To address gender and sexual identity discrimination and stigma, the International Labor Organization encouraged governments to work with small and medium sector associations, sectoral unions, and informal economy workers' associations.
  • End Sexual Discrimination at Workplaces:
    • Encouraging employers’ organisations to end sexual discrimination at workplaces, it makes business sense to work on LGBTIQ+ inclusion in the workplace.
      • Studies have shown that diversity in the workplace, including LGBTIQ+ persons, is better for business.
      • It signals a creative environment that creates the right conditions for economic growth.
      • Employers’ organisations can provide policy guidance to their members, undertake advocacy and raise awareness on including LGBTIQ+ persons in workplaces, promote social dialogue and collective bargaining, and facilitate learning and sharing of good practices among members.
  • Organise and Exercise the Right to Freedom of Association:
    • ILO has asked unions to help LGBTIQ+ workers organise and exercise their right to freedom of association.
      • Workers associations can also ensure that issues affecting LGBTIQ+ workers are represented in collective bargaining agreements with employers and in workplace policies and other tools.
      • Many LGBTIQ+ workers, particularly those in smaller workplaces, may feel isolated without visible LGBTIQ+ peers or allies.

What is the Status of LGBTIQ+ Community in India?

  • National Legal Services Authority Vs. Union of India (2014): The SC observed that “recognition of transgenders as a third gender is not a social or medical issue, but a human rights issue”.
  • Navtej Singh Johar vs. Union of India (2018): The SC decriminalised homosexuality by striking off parts of Section 377 of the Indian Penal Code (IPC) which were held violative of Fundamental Rights of LGBTQ Community.
    • The SC held that Article 14 of the Constitution guarantees equality before law and this applies to all classes of citizens therby restoring ‘inclusiveness’ of LGBTQ Community.
    • It also upheld the pre-eminence of Constitutional morality in India by observing that equality before law cannot be denied by giving precedence to public or religious morality.
    • The SC stated that the ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ should be applied as a part of Indian law.
      • Yogyakarta Principles recognise freedom of sexual orientation and gender identity as part of Human Rights.
      • They were outlined in 2006 in Yogyakarta, Indonesia by a distinguished group of International Human Right experts.
  • Tussle Over Same Sex Marraiges: In Shafin Jahan v. Asokan K.M. and others (2018) case, the SC observed that choice of a partner is a person’s fundamental right, and it can be a same-sex partner.
    • However, in February, 2021, the Central Government opposed same-sex marriage in Delhi High Court stating that a marriage in India can be recognised only if it is between a “biological man” and a “biological woman” capable of producing children.
  • Transgender Persons (Protection of Rights) Act, 2019: The Parliament has passed the Transgender Persons (Protection of Rights) Bill, 2019 which has been criticised for its poor understanding of gender and sexual identity.

Source: TH

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