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By Oxfam India
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PolicyWorker Rights

India Inc. Post Section 377

Businesses have to be equal opportunity employers for queer and trans persons and create a safe and discrimination-and-harassment-free workplace

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India Inc. Post Section 377
India Inc. Post Section 377

Homosexuality in India has for the longest time had the distinction of having categorical legal disapproval. Since the formalisation of the first set of legislations governing the country, consensual sexual activity between two persons of the same sex had been a criminal activity punishable by law, under Section of 377 of the Indian Penal Code. This colonial-era decree had dictated how the LGBTQ community had been visualised, bereft of respect and dignity and lacking most types of sanctioned legal protections, including those offered by employers.

At the same time, there has been a global move in terms of recognizing sexual and gender minorities as a vulnerable group. International guidelines like UN standards of conduct for business provide a framework of how business should tackle discrimination against LGBTQ persons by respecting their rights, eliminating bias, supporting the employees, and taking a stand for queer rights.

The Delhi High Court offered a short-lived legal reprieve in 2009, when it held the provision to be unconstitutional. However, the same ruling was overturned by the Supreme Court in 2013.

Decriminalisation Of Homosexuality

To some extent a moment of reckoning for the Indian judiciary, 6 September, 2018 was also a busy day for business. After the Supreme Court of India judgement, which effectively decriminalised homosexuality in India by amending the section in question, a flurry of activity overtook social media, with visual designers and advertising and marketing teams going into overdrive to push out curated content to mark the event, show companies’ support and participate in the conversation.

India Inc.’s Response To The Judgement

The impact was felt far and wide, and a variety of sectors joined the narrative. Tech giants like Google (and Google owned video sharing platform YouTube), Facebook, Microsoft, and IBM participated by temporarily changing their displays to Pride-themed ones, as did cab aggregation companies like Ola and Uber, with Uber going a step ahead and even changing the colour of the routes on its app.

Food delivery companies like Swiggy and Zomato, FMCG giant Kellogg’s, liquor brands including Bira and Absolut, coffee chain Café Coffee Day, and even dairy companies like Mother Dairy pledged their support by celebrating the landmark ruling on social media platforms. Tweets offering support were also sent out by e-commerce company Flipkart, hospitality groups like The Lalit hotels and OYO Rooms, airline company Indigo, and corporations like the TATA Group and Hindustan Unilever.

More Than Lip Service?

In terms of responsibility of businesses to encourage a diverse workforce and respect their employees, India has a policy framework called the National Voluntary Guidelines on Social, Environment and Economic Responsibilities of Business (NVGs), which have been in effect since 2011. Even though the NVGs are not mandatory, the top 500 companies listed on the BSE and NSE are required by the Securities Exchange Board of India (SEBI) to publish an annual Business Responsibility Report (BRR) based on NVGs.

Two components of the same are non-discrimination in the workplace and respecting employee dignity and human rights. According to the 2018 India Responsible Business Index (IRBI) report, only 32 companies out of the top 100 listed ones indicated sexual minorities as part of the recruitment and career advancement stages in employment. Furthermore, a survey undertaken in 2016 by advocacy group MINGLE found that 40 percent of all surveyed LGBTQ persons have faced harassment at their workplace, including professionals in IT firms like Tech Mahindra. Notably, there have been instances of Indian insurance companies refusing to offer medical insurance to the non-spousal partners of LGBTQ employees, as happened with L’Oreal in 2017.

Indeed, in terms of actively implementing inclusive policies and practicing affirmative action, only a handful of companies translate thought into action. Before September 2018, very few corporations, including IBM India, Godrej Group, Tata Group and the Royal Bank of Scotland (RBS), had a queer-friendly work environment with inclusive programs to attract, retain and respect LGBTQ employees, like extension of medical hospitalization benefits to same-sex partners. Very few Indian companies, like the Godrej Group and the Lalit Group, have been at the forefront, in terms of introducing the UN standards at their workplace.

Way Forward

While there is a strong business case to be made for companies to value LGBTQ talent, tap into underserved markets and thus capitalise on the ‘Pink Rupee’, they also have an important ethical responsibility in pushing forward the Sustainable Development Goals (SDGs). Moreover, enshrined in the SDGs is the commitment to ensure a life of dignity for all, and leaving no one behind, and that includes sexual and gender minorities.

This means that businesses have to be equal opportunity employers for queer and trans persons, create a safe and discrimination-and-harassment-free workplace, implement mechanisms of equity, replace words such as ‘spouse’ with ‘partner’, have a non-binary definition of gender, have gender-neutral toilet facilities, and engage in gender and sexual sensitisation with all their employees.

Keeping in mind the same, it is now pertinent to witness how Indian companies will move forward, and whether their support will materialise into any substantial policy changes.