Posh At Work: Same Gender Complaints Under POSH

Same Gender Complaints Under POSH

Same-Gender Sexual Harassment Complaints Maintainable Under POSH Act

In the past, the POSH Act has been chastised for not being gender-neutral and for preventing sexual harassment in the workplace for members of the LGBTQ+ population. Men aren't allowed to file a lawsuit under the law because it is gender-specific, leaving them to rely solely on corporate rules, which may or may not ban discrimination of any kind.

In Jan The Calcutta High Court ruled in a historic decision that acts of sexual assault committed by a woman on someone of the same gender are protected by India's anti-sexual harassment laws. This judgment by the Calcutta HC might also go a long away in broadening the scope of the POSH Act, which has been criticized for failing. Although we're clearly a long way from gender-neutral rules on sexual abuse and violence, a state high court ruling that "acts [of sexual harassment] may be committed by members of either gender, including per se (between or within themselves)" is a step forward.

In this case, the petitioner had alleged that the Internal Complaints Committee (ICC) did not have jurisdiction to entertain the allegation of sexual harassment since the complainant, as well as the accused (petitioner), were of the same gender — and so, fell outside the purview of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the POSH Act)

Noting that “there is nothing in Section 9 of the 2013 [POSH] Act to preclude a same-gender complaint,” Justice Sabyasachi Bhattacharyya, who heard the matter, held 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 [acts of sexual harassment] irrespective of the sexuality and gender of the perpetrator of the act.”

Nonetheless, the Indian legal system seems to be moving away from the hetero-normative narrative. “Although it may seem strange at first glance that people of the same gender complain of sexual assault towards each other, it is not implausible, especially in the light of the complex mode which Indian society is currently adopting, also debating the question of whether same-gender marriages may be legalised,” Justice Bhattacharyya wrote in his decision.