A survey conducted by The Guardian in 2019 revealed that 70% of lesbian,
bisexual, transgender and gay (LGBT) community are sexually harassed at places
of work. According to this survey, women from LGBT community have been much more
likely to experience undesirable touching and sexual assault at workplaces.
Sexual harassment including unwanted touching of the breasts, genitals or
buttocks, or attempts to kiss them, has been reported by more than 21 percent of
the women belonging from LGBT community and a significant percentage of LGBT
women had been seriously sexually assaulted and raped at work, this phenomenon
is referred to as a 'secret epidemic.'
A lot of studies and surveys conducted globally also shows that lesbian and
bisexual women are more venerable to sexual harassments, ex- A survey conducted
by Centers for Disease Control and Prevention's, United States shows that more
than half of lesbian and bisexual women experience sexual harassments, stalking
as compared to straight women.
Also, at work places these women from LGBT community are brutally harassed and
had experienced higher levels of sexual harassment and sexual assault like
unwanted touching, unaccepted comments and assaults. There is also a
misconception prevailing in the society that these identities solely focus on
sexual activity and people often get influenced by these stereotypes and makes
sexual comments and ask inappropriate questions about LGBT person's sex life.
Non-Inclusion of queer within the anti-sexual harassment laws (section 354 IPC
and POSH Act) is caused in two different ways. Firstly, non-recognition of same
gender harassment which is caused within the same sex and secondly, harassment
against transgender. The main objective of the anti-sexual harassment laws is to
protect women from sexual harassment. As there is lack
of explicit indication of inclusion of women within the definition of
'respondent' under section 2(m) of the POSH act and the expression 'man commits'
used under section 354A IPC, both distinctly indicates that same-sex harassment
is not being recognized by the Indian laws.
Another objective of section 354 IPC is to prosecute men who commits the offence
of sexual harassment, nevertheless when the same offence by men occurs within
same gender or against transgenders, it never gets prosecuted in accordance with
the law. Thereby excluding lesbians, gays and transgender from the ambit of
anti-sexual harassment laws.
Same Gender Sexual Harassment
In the landmark judgment of Navtej Singh Johar vs Union of India
Apex Court held section 377 of the Penal Code to be violative of the fundamental
rights of the LGBT community and recognized homosexuality to be normal
overruling all the previous judgments against homosexuality. It was
additionally held by the court that discrimination in opposition to a man or
woman on the idea of sexual orientation is deeply offensive to the honour and
self-worth of the Individual.
Sexual Attraction causes Sexual Harassment between same gender
Attraction closer to identical or contrary sex are both clearly same. Statistics
from various sources demonstrates attraction towards people of same sex and
document victim of sexual violence.
Research over a long time shows that sexual orientation tiers alongside a
continuum, from specific attraction to the alternative sex to unique enchantment
to the same gender.
Therefore, it is significant to recognize the causal link between sexual
attraction within individuals of same genders and existence sexual harassment
When a person sexually harasses an individual of the other gender, a presumption
arises that the harassment is "because of the sufferer's gender. The element of
causation is self-obvious and therefore not often disputed by the respondent.
However, in same gender harassment cases, by contrast, causation is plenty much
less glaring and may be hard to prove.
The Supreme Court of U.S held that attraction theory can be used to determine
causation in cases related to same-sex sexual harassment. It is beyond any
doubt that the attraction theory works in same-gender harassment cases, and if
the conditions for the application of attraction theory exist, same-gender
harassment is similar to opposite-gender harassment.
Homosexuality may be used to reveal a habit of selection on the basis of sex
within the choice of sexual partners, and attraction can be used to infer that
the habit is relevant. Therefore, the causation here is selection of the victim
based on gender.Sexual attraction and harassment is related to each other and
therefore it important to understand the link.
Same gender sexual harassment- 'harassment of women'
Criminal Law on same gender sexual harassment
Under the criminal law, the concept of sexual harassment and other related
offences such as Voyeurism, Stalking, using criminal force, are framed in a
manner which implies that these offences can be committed only by 'man' against
women. The expression 'Any man commits' used under Section 354 A makes it
more comprehensive, and shows that the same-gender sexual harassment isn't being
known by way of the Penal code.
Furthermore, Section 354 A of Indian Penal Code states that a man making
bodily contact and advances involving unwelcome and express sexual overtures or
worrying sexual favors or making sexually colored comments, will be guilty of
the offence of sexual harassment. This provision is a clear indication of
non-recognition of same gender harassment and simplest pertains to a person
being concerned inside the offence, which aspect needs to be factored in at the
same time as appreciating the connotation of "sexual harassment."
The penal code encompasses much wider scope for sexual harassment unlike POSH as
it is only confined to workplace. Moreover, the rules of POSH are only for
remedies whereas IPC penalizes the same offense. Therefore, when a woman gets
harassed by another woman, she has no remedy available to her under the criminal
law which is much extensive in its application.
POSH Act on same gender sexual harassment
In the case of Malabika Bhattacharjee v. Internal Complaints Committee,
Vivekananda College and Ors
, same gender sexual harassment was
recognised by Calcutta High Court. This judgment triggered the necessity for a
gender-neutral law on sexual harassment in India. In this case, the action of
the Internal Committee of Vivekananda College was challenged as it refused to
simply accept a criticism below this Act at the ground that the complainant and
the respondent belonged to the equal gender.
It was held by the Court that taking into consideration the dynamicity of the
society and its adaptation to new norms, it is not improbable to consider same
gender complain of sexual harassment.
It was observed that section 2(m) which defines respondent under the POSH
contains the word "persons." Thus, it includes persons of all genders and there
is nothing in Section 9 of the 2013 Act to reject a same-gender complaint under
the Act and section 2(n) is not a static concept and it is important to
interpret the same considering the social background and perspective.
Furthermore, the Court concluded that:
"A person of any gender may feel threatened and sexually harassed when her/his
modesty or dignity as a member of the said gender is offended by any of the
acts, as contemplated in Section2(n), irrespective of the sexuality and gender
of the perpetrator of the act."
This landmark judgment clarified that sexual harassment complaints in opposition
to any other person of the same gender is maintainable under the PoSH Act.
International Recognition and Acceptance of same sex harassment
Same sex harassment is one of the most controversial issues under anti-sexual
harassment laws which has begun to emerge all over the world under many
jurisdictions. Most of the legislation mentions sexual harassment in imperial
terms- harassment of "a person" by "another", which could be similarly
interpreted but the difficulties arise in which both the person are assumed
through the courts to be heterosexual. These kinds of difficulties are less
possibly to rise up in systems which define sexual harassment to consist of
sexual conduct independently of the perception of sex discrimination.
The U.S Court within the case of Oncale v. Sundowner Offshore Services, Inc
held that discrimination based on sex consisting of identical-gender sexual
harassment is actionable underneath the civil rights act, there is nothing in
the legislation that always barred a claim of discrimination because of sex,
simply because the plaintiff and the defendant, were of the equal sex. The
Recognition of same-gender sexual harassment claims levels from complete
rejection to complete acceptance of same-gender claims at the equal foundation
as contrary sex claims inside the United States under Title VII of the Civil
The United Nations entity for gender equality and the Empowerment of Women
acknowledges that sexual harassment is any unwelcomed behavior of a sexual
nature that could fairly be expected or be seemed to cause offence or
humiliation to every other and can occur between people of the alternative or
same sex and each man and women can be both the victims or the offenders.
Same gender sexual harassment- 'harassment of men'
Preventive measures should be adapted in order to counter same-sex harassment of
men. In India the laws related to sexual harassment and rape only talks about
harassment of women and solely recognizes women to be the victim of sexual
harassment, moreover, there is no law or statute which protects men from act of
Some International organizations in order to identify the victims of sexual
harassment reacted to possibility of harassment of men within same sex i.e, when
men get harassed by another men by recognizing and prohibiting this forms of
Indian Penal code under section 354 A denotes that 'man commits' the offence of
sexual harassment, nevertheless, it has been never interpreted that the victim
can also be a man keeping in mind the dynamicity and changing nature of the
society. Furthermore, the Calcutta high Court recognized same sex harassment
where the victim and the perpetrator both were females.
The high court held that the definition of "respondent" underneath the Act,
really suggests that same-sex allegations can also be filed, additionally the
idea of "sexual harassment" cannot be static however has to be interpreted
against the stage of the social perspective.
In a comparable view, same sex sexual harassment against man needs to also be
regarded as sexual abuse of men by way of men is a extreme social trouble of
gender inequality. Moreover, sexual abuse of men via men is frequently
ignored and inextricably connected to sexual abuse of women via men. The
illusion is preserved that men are sexually inviolable, hence evidently
superior, because the sexual abuse of men by men is kept invisible.
Sexual Harassment Against Transgender
The judiciary in the National Legal Service Authority vs Union of India
judgment recognized the transgenders and accorded them the position of the
"third gender" giving them constitutional equality. Transgenders have been
victimized to sexual offences for decades which includes stalking, trafficking,
sexual harassment at place of work and otherwise and so forth, yet there is no
law which protects them from such acts.
The lack of gender-neutral criminal law related to sexual harassment increases
the vulnerability of the transgenders as they are already subjected to a
discrimination owing to narrow mindset of the society. It has been documented
under various studies that transgenders often face sexual and physical
violence and also serious human rights violations.
Protection of Transgender from sexual harassment under the POSH
The POSH Act within section 2(a) defines 'aggrieved women' and recognizes that
the complainant under the act can only be a 'woman' which eliminates the
possibility of inclusion of transgenders and men. It has been formulated in
order to protect women from harassment and intended not to be gender neutral, as
also the title suggests, it creates a framework for aggrieved women.
Moreover, there is no decision by the judiciary which protects the interest of
trans people who identify as a woman and thereby include them within the scope
of section 2(a) of the Act. However, by interpretating the POSH law, it will be
applicable to trans women as well.
The decision of the Supreme Court in the National Legal Service Authority vs
Union Of India
case made it obvious that transgender have been provided with
the freedom to work anywhere without any discrimination, this mean there is
possibility of them being subjected to sexual harassment in the workplace.
Consequently, the POSH which aims to provide a harassment free environment
within the workplace must be applicable to the trans women as they are also the
Furthermore, the Calcutta High Court held that sexual harassment is dynamic
concept which should be interpretated against the stage of the social
perspective and person of any gender might also experience threatened and
sexually confused. As transgenders are identified as the third gender, therefore
they should also be ensured protection even though there is lack of clarity on
application of the POSH Act to transgender persons. Also, the Transgender Act
along with the NALSA judgment, apparently, provides suggestion that POSH would
provide protection to a transgender woman.
Protection of Transgender from sexual harassment under the IPC
Section 354 IPC deals with every form of sexual offences including voyeurism,
stalking, etc. and the word "any woman" used under this provision indicates that
this is only applicable for the protection of women and does not include
transgender and male. The transgender community faces a lot of oppression by the
society due to their gender.
In the case of Anamika v. Union of India & Ors.
, the High Court of Delhi
held that the cases filed under section 354 A of the Penal code via transgenders
may be registered and proceeded in accordance with law and prolonged the
constitutional validity of clauses (i), (ii) and (iv) of sub-section (1) of
Section 354A of IPC, to the quantity that they will be interpreted to exclude
sufferers of sexual harassment who are transgender.
Transgenders are already subjected to certain levels of harassment because of
their gender and as they belong to a rare group of people with different body
features. Therefore, through this judgment the judiciary intended to include
transgenders under the protection of law and to not exclude them from the safety
of the society.
It was held by the court that- "if a cognizable offence under the provision of
Section 354 A IPC, in particular sub clause (i) , (ii) and (iv) is made out on
the complaint of a transgender, the same shall be registered in accordance with
As the penal code encompasses much wider scope for sexual harassment unlike POSH
which is only applicable to workplace, this judgement becomes very extensive in
this application providing protection from harassment to transgender.
Violation Of Fundamental Rights By Non-Inclusion Of Queer
Non-Inclusion of queer identities under the anti-sexual harassment laws causes
violation of Fundamental rights. The right to equality and the right to life and
personal liberty are relevant to all everyone and non-inclusion of gender
minorities causes violation of these fundamental rights.
Violation of the right to equality
Article 14 of the Constitution provides the right to equality to every human
being.'Equality' is a concept that lets in differential treatment but it
prevents discriminations that are not justified. Differential treatment does
not prima facie amount to violation of Article 14, nevertheless it is violated
when there is no reasonable foundation. Non-inclusion of queer identities
under the ambit of anti-sexual harassment laws (IPC section 354 A and POSH) does
not stand the validity of Article 14 as the discrimination is not based on an
intelligible differentia and there is no rational nexus.
The absence of explicit indication of inclusion of women within the definition
of 'respondent' under section 2(m) of the POSH act and the expression 'man
commits' used under section 354A IPC,both distinctly indicates that same-sex
harassment is not being recognized by the Indian laws. Consequently, only sexual
harassment by men is being penalized and harassment by women against another
women remains unaccepted.
Therefore, there is no reasonable classification as the nexus of both of these
provisions is to protect every woman from the evil of sexual harassment. In
similar view, another objective of section 354 IPC is to prosecute men who
commits the offence of sexual harassment, nevertheless when the same offence by
men occurs within same gender or against transgenders, it never gets prosecuted
in accordance with the law.
Violation of right to Life and personal liberty
Both the terms "life" and "personal liberty" have been given a very broad
definition that encompasses a wide range of rights. Its deprivation is only
possible following the legal procedure. The Supreme Court has given the term
"life" a broad interpretation, giving it a wide range of meaning.
In the case of Munn v. Illinois
, The Court cited Justice Field's
statement that "by the term "life" as employed here, something more than a
simple animal existence is implied." As a result, it encompasses not just
physical existence but also the quality of life. In the case of Maneka Gandhi
vs. Union of India
, The Supreme Court ruled that the right to life
enshrined in Article 21 of the Indian Constitution is not only a bodily right,
but also encompasses the right to live with dignity. Article 21 also recognizes
everyone's right to live in dignity, as established in Francis Coralie Mulin
v. Administrator, Union Territory of Delhi.
The right against sexual harassment is entrusted to everyone as part of their
right to life and right to dignity within Article 21 of the Constitution. Sexual
Harassment of women is violative of one of the most important fundamental
rights, specifically, the Right to Life enshrined in Article 21.
The Supreme Court in the case of Union of India and Ors v. Mudrika Singh
identified the Right against sexual harassment as a fundamental right within the
ambit of Article 21 of the Indian Constitution. The Apex Court held that the
right against sexual harassment is established in all people and it is a facet
of the right to life and right to dignity beneath Article 21, suggests the
importance of offering this right to all genders.
Furthermore, it was affirmed by the court that the fundamental rights granted in
the Indian Constitution will be relevant equally to the transgenders and they
are given the position of 'third gender' while recognizing them, and providing
constitutional equality. As article 21 is applicable to every 'person'
therefore, right against sexual harassment which is a part of right to life,
must also be applicable to all queer identities including transgender, lesbian
and gays and consequently, their non-inclusion causes violation of the Right to
- Frances Perraudin, "Survey Finds 70 per cent of LGBT People Sexually
Harassed at Work", The Guardian (2019) can be assessed at
- "Sexual harassment of LGBT people in the workplace", can be assessed at
- Navtej Singh Johar v. Union Of India, AIR 2018 (SC) 4321.
- Suresh Kaushal and Anr v. NAZ Foundation and Ors.
- Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
- Winter 2004 Reconsidering Attraction in Sexual Harassment Martin J. Katz
University of Denver College of Law, can be assessed at [email protected]
- Section 354 A-D Of the Indian Penal code
- Section 354 Of the Indian Penal code
- Section 354 A Of the Indian Penal code
- Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda
College and Ors, WPA. 9141 of 2020
- Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998).
- Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda
College and Ors
- Section 2 (m) of the 2013
- Section 2(n)
- Human Rights Violations against the Transgender Community: A Study of
Kothi and Hijra Sex Workers in Bangalore, India, (2003), Peoples' Union for
Civil Liberties, Karnataka (PUCL-K). Retrieved from on 3-1-2014.
- United Nations Committee on Economic, Social and Cultural Rights in its
Report of 2009
- Article 14 Of Constitution of India, 1950.
- M. Nagaraj v. Union of India, (2006) 8 SCC 212.
- State of Rajasthan v. Shankar Lal Parmar, (2011) 14 SCC 235.
- Section 354 Of the Indian Penal code, 1860.
- Francis Coralie Mullin v. Administrator (Union Territory of Delhi), 1981
SCR (2) 516.
- Munn v. Illinois, 94 U.S. 113 (1876).
- Maneka Gandhi v.Union of India, (1978) 1 SCC 248.
- Union of India and Ors v. Mudrika Singh, (LL 2021 SC 705).
- Article 21 Of Constitution of India, 1950.