A participant waves a flag during Queer Azadi Pride, an event promoting gay, lesbian, bisexual and transgender rights, in Mumbai, February 2020. Photo: Reuters/Francis Mascarenhas
- Four years ago, the Supreme Court decriminalised consensual same-sex relationships in Navtej Singh Johar.
- Yet India still lacks a standardised policy on attitudes towards and protections of LGBTQIA+ persons, which also shows in its stand at multilateral fora.
- One official document that addresses gaps in this area is the Department of Science and Technology’s fifth ‘National Science, Technology and Innovation Policy’.
- We need to implement the policy’s recommendations in letter and in spirit as well as encourage other government departments and ministries to follow suit.
Today is the fourth anniversary of the Supreme Court’s Navtej Singh Johar judgment, which decriminalised consensual same-sex relationships. In the last week or so, several significant events have occured that indicate a potential shift in attitudes and policies towards sexual minorities.
Tamil Nadu published a gazette notification standardising a glossary of respectful Tamil forms to address LGBTQIA+ persons to sensitise and educate government officers. The National Medical Commission issued a circular to state medical councils and practitioners that ‘conversion therapy’ constituted professional and ethical misconduct. And Justice D.Y. Chandrachud stated that love alone was not enough, that “structural changes as well as attitudinal changes are essential. Equality … must extend to all spheres of life including the home, the workplace, and public places.”
For all these signals, however, India lacks a standardised policy on protections for LGBTQIA+ persons. In July 2022, India abstained from voting at the UN Human Rights Council on a resolution dealing with protection against violence and discrimination based on sexual orientation and gender identity. India has abstained in the past as well on the same matter – but then its argument was that the matter was sub judice. Since the July vote was well after Navtej Singh Johar, the external affairs ministry’s stand raised eyebrows.
Sources told The Wire that the reason this time was the absence of any concrete law or policy that elucidated India’s stand after decriminalisation.
An emerging patchwork
That a vacuum exists regarding LGBTQIA+ protections is true, but not entirely so. In the years since the 2018 ruling, a patchwork of often-contradictory but sometimes also supportive judgements and policies have emerged. Higher courts have consistently upheld certain protections for same-sex couples. For example, courts in Kerala and Rajasthan have ruled in favor of adult LGBTQIA+ couples living together but are yet to decide on legalising same-sex marriage.
The Union law ministry and some states like Uttar Pradesh have assumed the position that same-sex marriage is against “Indian culture, laws and Indic religions”. On the other hand, on the employment protection and anti-discrimination fronts (particularly against transgender persons), the Ministry of Social Justice has set up special transgender boards and even schemes for rehabilitation and welfare.
(In many ways, this confusion and siloed policymaking is reminiscent of the 2000s. A 2009 ruling by the Delhi high court first decriminalised homosexuality. Then, the position of National AIDS Control Organisation, under the Union health ministry, was that decriminalisation would allow for better outreach to high-risk groups and reduce stigma – while the law and home affairs ministries argued that homosexual intercourse should remain a criminal offence.)
Push for structural change
Inter-ministerial contradictions aside, the time has come to develop a common and consistent policy on LGBTQIA+ diversity, inclusion, anti-discrimination and workplace protections, to initiate the “structural change” to which Justice Chandrachud alluded. While same-sex marriage rights might be contentious, the government should be able to take a stand on protections against workplace discrimination, hate crimes and violence.
Some ministries have taken some steps often of their own volition to formulate policy in this area. Interestingly, one of the few official documents that addresses gaps in this area is the Department of Science and Technology’s fifth ‘National Science, Technology and Innovation Policy’ (STIP) of 2020. It was formulated after members of the department, the Office of the Principal Scientific Advisor (PSA) and NITI Aayog consulted nearly 40,000 stakeholders in India’s science and technology communities.
The policy specifically addresses the importance of diversity and inclusion in research and the importance of workplace protections. It even goes so far as to state:
“The LGBTQ+ community will be entitled for spousal benefits (including retirement benefits) to any partner irrespective of their gender (specified by the STEM employee).”
“The LGBTQ+ community will be included in gender equity conversations with special provisions to safeguard their rights and promote their representation and retention in STI.”
While the focus on inclusion seems progressive, it recognises what has long been known: that there is a clear, quantifiable economic benefit to promoting diversity.
The business case for diversity and inclusion is well-documented in the economic literature. In its earliest manifestations, such as in The Economics of Discrimination, the 1957 book by Gary Becker, winner of the Nobel memorial prize for economics, experts argued that employees who were discriminated against consciously chose work opportunities where they didn’t face discrimination. This resulted in a situation that hurt both employers, who were forced to pay higher wages to white employees for the same productivity, and hurt the minority workers, who were paid less.
On the other hand, industries that sought to recruit from disadvantaged and marginalised groups, when few others did and had inclusive policies, faced a double dividend. They managed to attract the best and the brightest from these groups and they managed to get highly qualified staff for lower wages (historically). In its early years, India’s banking sector recruited women managers for similar reasons.
India’s private sector, particularly multinational companies, have embraced LGBTQIA+ rights and have introduced diversity-hiring programmes. The government has lagged, however. Often clueless about what to do, government-run scientific institutions in the country have struggled with retaining qualified talent and original thinkers.
At this time, confronted with labour mobility and a chronic brain drain (real or potential), it ought to acknowledge that it has to go the extra mile to retain talented young scientists through diversity and inclusion initiatives.
With the fifth STIP, the national scientific establishment has made a start with workplace protection recommendations. It now remains for these to be rolled out, implemented and eventually reproduced across the board in government – in both letter and in spirit. The Office of the PSA and NITI Aayog ought to seize the opportunity to ensure that this happens.
Almost 40 years ago, in its sixth Five-Year Plan (1980-1985), the then-Planning Commission introduced the concept of an ‘SC/ST Sub-Plan’ with a framework that institutionalised equity. Similarly, India’s scientific establishment took early steps to roll out programmes that addressed the needs of women scientists. As it stands on the right side of history again, it is time for the government in toto to join it.
Adhiraj Parthasarathy works in public policy and has worked on science and innovation policy related issues. All views expressed here are personal.