Guest Post: Sex, Sexual Orientation, and the Courts

(In this guest post, Vansh Gupta explores a recent ruling of the US Equal Opportunity Commission that speaks directly to the Indian debate over the constitutionality of s. 377)

The U.S. Equal Employment Opportunity Commission recently issued a ruling (available here) recognising discrimination on the basis of sexual orientation as discrimination on the basis of sex. Its immediate impact is that employees can invoke the Civil Rights Act (Title VII) when they are discriminated against on the basis of their sexual orientation, even though sexual orientation is not an explicitly prohibited basis for making employment decisions. As an interpretive exercise, however, the decision has wide-ranging ramifications. It affirms the position that ‘sex’ can be read to include ‘sexual orientation’ in statutory material.

The Commission considers that sexual orientation cannot be defined or understood without reference to sex (a gay man is gay precisely because he attracted to males). The Commission finds that there is ‘an inescapable link’ between sexual orientation discrimination and sex discrimination as discrimination on the basis of orientation is premised on ‘sex-based preferences, assumptions, expectations, stereotypes or norms’. It describes this link in the following 3 ways-

  • Sexual orientation discrimination is sex discrimination because it will require a person’s sex to be taken into account, for instance when a lesbian woman is reprimanded for speaking about her female partner in the workplace, but a straight man isn’t.

The treatment of the person is different precisely because the employee’s sex is different. The equivalence therefore that is drawn here is not between gay men and lesbian women (i.e. both would be reprimanded for demonstrating same-sex affection), but rather between a woman (who happens to be lesbian) and a man, for engaging in the same conduct (speaking about a female affectionately).

  • There is also the understanding that sexual orientation discrimination is associational discrimination on the basis of sex (sex must be taken into account when an employee is treated differently for associating with a person of the same sex). This follows from a line of rulings concerning interracial marriage or friendship. (A white man being punished for marrying a black woman, necessarily takes into account his race), but the EEOC expands the reasoning to apply to sex discrimination as well.
  • And finally, the third rationale is that sexual orientation discrimination is sex discrimination because it involves discrimination on the basis of gender stereotypes, which has already been held to prohibited by the term ‘sex’ in the Civil Rights Act. Courts have already held that claims against gender stereotyping can be brought by lesbian, gay and bisexual individuals if they are treated adversely for being inadequately ‘masculine’/’feminine’, based on their appearance, mannerisms or conduct. The EEOC also recognises however that discrimination of LGB individuals on the basis of gender stereotypes is about more than assumptions about what behaviour is masculine or feminine; there is also an element of enforcing ‘heterosexually defined gender norms’. Real men are not just masculine, but also straight.

India does not have an omnibus Civil Rights Act as in the US or an Equality Act as in the UK, but reference to the principle of sex(ual?) equality is found in statute (see S.4 and 5 of the Equal Remuneration Act) and A. 15 of the Constitution prohibits discrimination which is only on the basis of sex.

Readers will recall that the Delhi High Court had invoked A. 15 in its analysis while deciding the now-overturned Naz petition. Although the court read down S. 377 of the IPC on the basis of a web of reasoning concerning A. 14 (equal protection of laws), 15 and 21 (privacy), the intent and the result insofar as A. 15 is clear: the term ‘sex’ in A. 15 must be read to include ‘sexual orientation’.

“104. We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights.”

While the Court has dealt with A. 14 and 21 extensively, its A. 15 analysis is limited to the a few paragraphs, relying primarily only on the conclusions of a number of foreign judgements. The High Court does however make an effort at explaining how an unenumerated ground can be the basis for holding discrimination. (“There will be discrimination on an unspecified ground if it is based on an attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner”, following from the South African constitutional Court’s decision in Harksen v. Lane.”)

The difference between the treatment of the matter by the Delhi High Court and the EEOC is that the EEOC relies on an understanding and interpretation of ‘sex’ to determine that sexual orientation discrimination is sex discrimination, whereas the High Court considers discrimination on the basis of sexual orientation to be analogous to sex discrimination.

This difference is not trivial. A. 15 specifically enumerates prohibited categories of discrimination. By including an analogous ground, the Court opened the way for A. 15 to be read expansively vis-à-vis other grounds as well. But the Civil Rights Act can only be used for the grounds that it specifies (necessitating Americans with Disabilities Act to be enacted to provide similar protections for persons with disabilities).

There is also the consideration that A. 15 is a constitutional provision, and is more amenable to expansive interpretation than a statutory term. EEOC-like reasoning would perhaps be necessary for interpreting ‘sex’ in statutory provisions such as S. 4 and 5 of the Indian Equal Remuneration Act.

Naz offered a promising start to a new way of dealing with A. 15 altogether in terms of both its method and result. Since its total reversal by Suresh Kumar Koushal, this possibility is now gone as Naz losing all its precedential value. It is another matter that in doing so the Supreme Court did not rule or comment on the High Court’s treatment of A. 15 at all, choosing to notice only that the High Court struck down S. 377 inter alia on the basis of 15, recording the contentions of the parties on its applicability, and after a (shoddy) analysis of only 14, concluding that the High Court was unjustified in finding S. 377 to be ultra vires both A. 14 and 15. The curatives pending before the Supreme Court highlight this glaring omission, but for the moment, sexual minorities remain a ‘miniscule fraction of the country’s population’ undeserving of the protection of their so-called rights.

(Vansh is a law researcher with Justice Ravindra Bhat at the High Court of Delhi)

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1 Comment

Filed under Article 14, Equality, Non-discrimination, Sex Discrimination, Sexuality

One response to “Guest Post: Sex, Sexual Orientation, and the Courts

  1. Pingback: Sex Discrimination and the Constitution – XII: Indirect Discrimination in Sareetha vs Venkatasubbaiah | Indian Constitutional Law and Philosophy

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