Because of 'Sex': The US and India on Workplace Discrimination Against LGBTQI Persons

When the US Supreme Court's ruling is compared with the Indian court’s opinions, although India does not have an anti-discrimination statute, the jurisprudence is far more substantive.

The recent US Supreme Court judgment, Bostock v Clayton County, declared that employers cannot fire employees on the basis of their sexual orientation and self-determined gender identity, because this is prohibited by the protection against discrimination based on ‘sex’ in Title VII of the Civil Rights Act.

Bostock dealt with the interpretation of statutory provisions that offer protection against discrimination, whereas India currently has none. But when the ruling is compared with the Indian Supreme Court’s opinions, one observes that although India does not currently have an anti-discrimination statute, Indian jurisprudence is far more substantive on anti-discrimination principles and in its acknowledgement of the historical disadvantage of LGBTQI individuals than Bostock, which took a formal, textualist and a conservative interpretive method to a progressive end.

Title VII of the Civil Rights Act of 1964 is a US federal law that disallows employment discrimination on the basis of race, colour, religion, sex and national origin. The employers in Bostock had abruptly terminated the long-term employment of three individuals after discovering they were gay or transpersons. The employers defended their actions by arguing that ‘sex’ in Title VII, as the drafters originally intended, only protected biological sex, and did not cover sexual orientation or gender identity.

The court rejected this argument by holding that termination of employment because of sexual orientation and gender identity necessarily involved a preliminary classification on the basis of ‘sex’. To illustrate its line of reasoning, the court laid out examples of how discrimination because of sex was at play.

Also Read: Law Forbidding Workplace Discrimination Applies to LGBT Too, US Supreme Court Rules

Here is the court’s own demonstration of how sexual orientation involves the question of ‘sex’: An employer has two employees, both of whom are attracted to men. If the employer fires the man for being attracted to men, it is solely on the fact of his male ‘sex’. He is fired for a trait arising from his sex that his employer finds intolerable in him, but not in his heteronormative female colleague who is also attracted to men.

Similarly, an employer who fires a transwoman is unfairly singling her out for a trait (her sex assigned at birth) that is not an issue when it came to other cis female employees because they continue to retain the sex assigned at birth. The transwoman’s employment is terminated because her choice of gender-determination and change is a decision that directly pertains to her biological sex.

Thus, the differential and disadvantageous termination of employment of both the gay and transwoman employees began with an impermissible classification based on their biological sex – and thus fell afoul of Title VII.

Interestingly, the majority opinion in Bostock was led by Neil Gorsuch, a judge nominated by President Donald Trump in 2017. Gorsuch is a known textualist; this means that, in matters of interpreting statutes, he often sticks to the ordinary meaning” of words as they stood at the time of drafting. The Bostock judgment is very much grounded in the text of the Act: the employees’ termination was an informed choice driven by the fact of their gay and transgender identities, which are inextricable from their biological sex. Discrimination based on ‘sex’ was part of the reason for termination of each individual – and is thus barred by Title VII.

Judge Neil Gorsuch is sworn in as an associate justice of the Supreme Court. Photo: Reuters/Carlos Barria

Comparing Bostock with Indian jurisprudence

How does the Bostock ruling compare with anti-discrimination jurisprudence in Indian courts? Under the Indian Constitution, Article 14 is the general equality provision guaranteeing equality before the law for all persons in India, with Articles 15 and 16 understood as particular articulations of the general equality guarantee.

In earlier days, the Indian Supreme Court, infamously interpreted Article 15 to mean that only classification based solely on one out of the five enumerated grounds (sex, religion, place of birth, caste, and race) is prohibited. This meant that the state could, for example, justify discriminatory employment conditions of air hostesses on the grounds that the classification was based on sex and “national welfare”.

Thankfully, the court has made great strides beyond these initial howlers. Examples include Anuj Garg, where the court struck down a law that prohibited the employment of women in public bars and emphasised that the test for discrimination should not be the number of grounds behind the classificatory intent of legislators, but the effect that the provision has on the personal autonomy and liberty of individuals.

In National Legal Services Authority of India (NALSA) held that the expression ‘sex’ in Article 15 includes self-determined gender identity. Navtej Singh Johar, which read down Section 377 of the IPC, emphasised that discrimination on the basis of sexual orientation was prohibited by the anti-discrimination guarantee based on ‘sex’. Both were premised on moral stereotypes about gender roles and thus prohibited by Article 15(1) due to the pernicious impact on non-heteronormative communities’ liberties and their dignity. The state can no longer claim ‘sex’ and additional reasons as justification for laws that disproportionately impact individual liberties – this is antithetical to the true meaning and content of the anti-discrimination clause.

People celebrate after the Supreme Court revoked Section 377 on September 6, 2018. Photo: REUTERS

In other words, the Indian Supreme Court went further than the US Court in Bostock. As scholars of discrimination law have pointed out, it does not simply manifest in deliberately exclusionary or maliciously hostile intent but also is often unintentional and inconspicuous in operation. Let us imagine that an employer fires any or all employees for having the wrong taste in music, and suppose that historically, queer women are wont to enjoy that particular genre of music. Debarring listeners of that brand of music in considering recruitment or termination would necessarily have a disproportionate and disparate impact on queer women applicants and employees. The form of discrimination here is indirect in operation and has not arisen from the intent that directly pertains to a person’s sex. Is any legal course of action available? The US Supreme Court in Bostock says no, as Title VII’s protection offers protection only to instances of direct and intentional discrimination because of sex.

Also Read: Notes From the Courtroom: Watching the SC Dump Section 377

The limitations of a textualist approach

This demonstrates the limitations of the textualist approach. Discrimination comes in versatile forms. The emphasis on the effect of discriminatory laws by the Indian Supreme Court overcomes this limitation: Section 377 was struck down, despite being “facially neutral”, because of its indirect and disproportionate impact upon the lives and dignity of LGBTQI individuals. Additionally, one’s self-determined gender identity is a ground equally protected in the constitutional guarantee on non-discrimination; in assessing discrimination based on gender identity, no necessary exercise is required to gauge whether it ever involved ‘sex’ at the outset.

Does this mean that LGBTQI individuals have comparable actions, like in Bostock, against workplace discrimination in India? Unfortunately, we have a long way to go. Article 15(1), and all the jurisprudence that builds upon it, is limited to actions against the Indian state. Bostock dealt with an anti-discrimination statute that was enforceable against both state and private actors. India remains one of the few countries without a comprehensive and robust legislative mechanism that crystallises this protection against social discrimination.

The rightfully criticised Transgender Persons (Protection of Rights) Act, 2019, for example, does broadly prohibit unfair treatment and termination of transgender persons in employment matters but is silent on any concrete remedies that transgender persons may have when faced with discriminatory treatment. The Act does not specify whom such claims can be made against nor the kinds of actions available (civil or criminal) to aggrieved persons.

File photo of a protest against the Trans Bill. Photo: PTI

A comprehensive effort was mounted in the form of the Anti-Discrimination and Equality Bill 2017, introduced in 16th Lok Sabha on March 10, 2017 by Shashi Tharoor. The Bill’s expansive scope of protected grounds – which included, among other, sexual orientation, disability, skin tone, marital status and food habits – was reflective of the multifaceted and intersectional axes of discrimination and exclusion in the Indian social milieu. The Bill (which lapsed with the dissolution of the 16th Lok Sabha), appreciably, included both direct and indirect instances of discrimination within its ambit. The thrust of progressive civil society demands must continue to foreground this major legislative gap, which stops us from fully realising the transformative vision of our constitutional jurisprudence.

Ruchi Chaudhury and Arunima Nair are postgraduates in anthropology and current LLB candidates at OP Jindal Global University. They would like to thank Ninni Susan Thomas and Nitika Khaitan for their comments on an earlier draft.