Discrimination Based On Sexual Orientation

ABSTRACT

In the contemporary times, world is moving towards working on individual rights and everyone wants freedom in his/her life that no one should enter and interfere while taking individual decisions. The issues regarding the freedom of bisexuals or homosexuals are ignored by many countries including India. People face discrimination based on their orientation on a large scale. In the United States of America, they questioned the validity of the order that fired the employees on the ground that they are transgenders or homosexuals, Court said that it violates Title VII of the Civil Rights Act of 1964. They were discriminated on the basis of their sexual orientation but the employer said that he fired employees not based on sex but because they are transgenders. So, the court in Bokston v. Clayton County, Georgia held that the word “because of…” used in the wording of Title VII of the Civil Rights Act of 1964 means discrimination because of sexual orientation. 

KEYWORDS: Individuality, Human Rights, Society, Discrimination, Sex.

INTRODUCTION

Theword “Sexual Orientation” is used to describe sexual attraction. We can say that when one person gets attracted towards the person of the same gender or opposite gender. The people who face discrimination on their sexual orientation are transgenders, lesbians, homosexuals, and gays. They are facing discrimination in this world on many grounds like based and in the fields of education, jobs, residence, etc. They are facing discrimination all around the globe and people do not acknowledge their problem. Every day they are struggling for their rights to get equal treatment like any other human being, irrespective of their sexual orientation. Our society does not accept them and clearly makes a mockery out of their condition. This is a harsh reality of our society which reflects the true image of our society. Everyone wants to enjoy his/her life as a “sovereign individual” and wants no one’s interference in the day to day working. 

The problem is not in their sexual orientation, but the problem lies in our mind that we see them with a different attitude.

TYPES OF SEXUAL ORIENTATION:

a.) Heterosexuals: Person who gets attracted to the person of another gender like men and women.

b.) Homosexuals: Attraction of persons of same-sex like men and women or they are considered as gays or lesbians.

c.) Bisexuals: Attraction of person towards own and the opposite sex are bisexuals.

Transgenders are facing exploitation and they are also discriminated in the fields of education, employment, entry in restaurants, and some other areas. If only majority rights are fulfilled by the government then what about the minority’s rights. According to the concept of Mills’ utilitarianism priority is given to the rights of the majority of people. There is clear ignorance of minority rights in this case. It is not fair to ignore them because Article 21 of the Constitution of India provides the right to life and Liberty to everyone without exclusion of any category. We are having the right to live our lives without the interference of any person.

Not only national laws but International Conventions play a very important role to provide the lesbians, homosexuals, and bisexuals equal rights. The Equal Rights Act, 2010 provides that the rights of individuals shall be protected. There should be no unfair treatment of individuals . Standards for the protection of rights of LGBT people are determined by the United Nations Organization, United Nations High Commissioner for refugees, International Covenant on Civil and Political Rights. Discrimination based on sex also includes transgender. It means that if we are using a term based on sexual orientation then the word “sex” also includes bisexuals and homosexuals with men and women. 

Human Rights protect individual rights and provide them equality before the law. Everyone should be treated equally whether it is men, women, or bisexuals.

REASONS FOR DISCRIMINATION:

i.) Society: In society, they don’t get equal importance like normal human beings. It is very easy to make a joke on them by calling “Hijras”. Transgenders or homosexuals have been tortured by people mentally and physically both. Society does not want to accept them the way they are.

ii.) Failed to accept science: Failure to accept the science of sexual orientation is an important reason to discriminate against them. They are not clear about the science of sexual orientation.

iii.) If transgenders, bisexuals and lesbians knock the door of authorities for any violation against them then these authorities ignore them and exploit them. 

LEADING CASE 

BOSTOCK V. CLAYTON COUNTY, GEORGIA[1] 

A case was filed in the United States top court for discrimination at  workplace against transgender or homosexuals. The US court gave a historic decision in June 2020 by talking about LGBT rights regarding removal of transgenders from the workplace only because they are transgenders.

FACTS OF THIS CASE

Employee was fired from the company because he was a transgender. The employer knew this fact on the instance participated in the softball league then he fired him on the ground of unbecoming country employee. There were three cases based on the same facts but the decision was different in all these cases. The case in which Zarda[2] who was fired from the job because of being gay. Another case in which a person name R.G & G.R[3] was  fired from employment because he presented himself her as a male when she was hired. 

There is a case in which the company refused to hire women[4] and another case where the company granted more pension fund to women based on the fact that they live longer than the men[5]. From these cases the following can be observed that in the first case this rule is made based on motherhood and in the second case the rule is made on the life expectancy of the person. The employer said that sex shall not be the sole and primary cause of discrimination. So, the employer defended him by saying that the term sex used in Title VII only includes women and men and it doesn’t include transgender. The court said that the employer by saying that he discriminated among these people because they are transgender or homosexuals but not on the grounds of “sex”. The court said that the word used “because of…” in this Act also includes transgenders. the discrimination based on homosexuality is not intentional but it is based on sex. Sex is the sole and primary criterion to determine. In starting when Title VII came into existence in 1964 then discrimination based on sex doesn’t cover transgenders and bisexuals. But in now a day it also includes these persons. So, the word but for causation plays a very important role. The but cause is enough to prove discrimination based on sex. Therefore, it was held that the employer by firing transgenders from work because they are bisexuals is a distinction that is based on sex.

               Therefore, it protects the workers by protecting them from sex-based discrimination in which employees were not hired because of their sexual orientation. The discrimination on sexual orientation by public and private employers is prohibited in the District of Columbia and Puerto Rico by state law. There were many states which prohibit this discrimination on executive orders. New York also prohibits sexual orientation discrimination in enterprises. 

HELD: Court gave a decision on this issue based on Title VII of the Civil Rights Act of 1964, which provides that any employer who discriminates anyone on the grounds of race, religion, and sex shall be liable for the violation of Title VII.

               The employer defended himself by saying that the word used in this act means the biological distinction between male and female and also said that discrimination word used in the act used to make different treatment or favour among one sex. 

CONCLUSION 

The goal of eradicating discrimination can be achieved only when people think that the LGBTQIA are the same as us. They have the right to live their life and personal liberty. According to me, the problem is not in their sexual orientation but the real problem lies in our mind. Discrimination of this kind can be stopped only when we stop laughing on them and stand by their side so that they achieve their right to equality. People of India, who are discriminated against, among men and women and consider women inferior to men; in that society, it takes a long time to take a stand for their rights. So, at least we have to stand with these people because they are also creation of Almighty God.

[1] 590 U.S._2020 WL 3146686; 2020 U.S. LEXIS 3252

[2] Altitude Express v. Zarda 590 U.S._ (2020)

[3] R.G. & G.R. Funeral Homes v. EEOC, Decided on 15 June 2020.

[4] Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971)[5] Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978)

Name of Author: Harpreet Kaur, Rajiv Gandhi National University of Law

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