Living with Dignity Sexual Orientation and Gender Identity- Based Human Rights Violations in Housing, Work, and Public Spaces in India June 2019 Composed of 60 eminent judges and lawyers from all regions of the world, the International Commission of Jurists (ICJ) promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems. Established in 1952 and active on the five continents, the ICJ aims to ensure the progressive development and effective implementation of international human rights and international humanitarian law; secure the realization of civil, cultural, economic, political and social rights; safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession. ® Living with Dignity - Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India © Copyright International Commission of Jurists, 2019 The International Commission of Jurists (ICJ) permits free reproduction of extracts from any of its publications provided that due acknowledgment is given and a copy of the publication carrying the extract is sent to their headquarters at the following address: International Commission of Jurists P.O. Box 91 Rue des Bains 33 Geneva Switzerland Living with Dignity Sexual Orientation and Gender Identity- Based Human Rights Violations in Housing, Work, and Public Spaces in India 1 ACKNOWLEDGEMENTS The ICJ is deeply grateful to the LGBTQ community, as well as their legal representatives and allies, who contributed to the research including by providing their testimonies. In particular, the ICJ would like to thank the activists who supported the qualitative research interviews, including Siva Kumar and Shankari, Nirangal; Akkai Padmashali, Ondede; Santa Khurai, All Manipur Nupi Maanbi Association; Yambung, Empowering Trans Ability; JiJo Kuriakose, Queerala; Maya Sharma, Vikalp; and Abheena Aher, India HIV AIDS Alliance. The ICJ would also like to thank the Alternative Law Forum for its support during the field research. The conceptualization, research and drafting of this report has been a team effort, and has involved many people within and outside of the ICJ. Legal Advisor Maitreyi Gupta led the effort as head of the ICJ's India Team, with drafting support from Saumya Maheshwari who contributed to its original legal analysis. Ajita Banerjie led the field research, provided research and other valuable support throughout the process. Frederick Rawski, Timothy Fish Hodgson, Ian Seiderman, Shaun Martinez, Sam Zarifi and Livio Zilli provided editorial and legal review. The ICJ would like to thank Arvind Narrain and Gautam Bhatia for providing feedback on the entire report. The ICJ would also like to thank Tripti Tandon, Miloon Kothari, Shivani Chaudhry and Danish Sheikh for providing comments on parts of the report. The ICJ takes full responsibility for its content. 2 PREFACE As both an ICJ Commissioner, and as the former Chief Justice of the Delhi High Court, I am proud to introduce this ICJ report. It not only documents the legal obstacles faced by the LGBTQ community in accessing justice for violations of their rights, it also takes a proactive and forward looking approach by offering a set of recommendations to the government and other actors to better protect the rights of LGBTQ persons - particularly their vital access to housing, work and public spaces. I trust that it will not only be used as a tool by lawyers, human rights defenders and policy- makers, but that it will contribute to enhancing public discourse on LGBTQ rights, as well as broader issues of discrimination and the rule of law in India. This report is built upon, and should be read and understood alongside, the recent jurisprudence of the Indian courts that has developed in the wake of the Supreme Court’s pronouncement in Navtej Singh v. Union of India that read down Section 377, which had criminalized same-sex relations. That decision, and subsequent jurisprudence, drew heavily upon international human rights law and standards in progressive and innovative ways that can act as a model for the region - indeed, the world. This ICJ report rightly celebrates these jurisprudential developments, and documents positive steps taken by the government in the wake of these decisions, but also identifies the substantial obstacles that have prevented its full implementation. Indeed, while Section 377 can no longer be used to perpetuate and foster discrimination and violence, the abolition of that provision is only one part of a much larger and more challenging effort to ensure that the national and international legal framework adequately protects every person’s right to equality, non-discrimination and dignity - regardless of their gender identity and sexual orientation. In order to make the promises of Navtej a reality, India needs to make its broader law and policy frameworks more inclusive of, and responsive to the concerns of, LGBTQ persons and communities. This will require an overhaul of some systems and re-development of commonly accessed institutions and spaces, including schools, workplaces, families, public transport and even streets. Human rights and rule of law principles need to be at the center of these efforts if they are to succeed. Jawaharlal Nehru said in his speech in 1959 at an International Commission of Jurists gathering, “Rule of Law, which is so important, must run closely to the Rule of Life... It has to deal with today’s problems. And yet law, by the very fact that it represents something basic and fundamental, has a tendency to be static. That is the difficulty. It has to maintain that basic and fundamental character but it must not be static, as nothing can be static in a changing world”. I find that this report makes a contribution to this effort to maintain this connection between the Rule of Law and the Rule of Life. It presents a legal analysis at the ICJ’s usual high standards, but in a way that is built upon, and prioritizes the voices of the people most affected by current injustices perpetuated by discriminatory law, policy and practices. The first-person narratives in the report give life to the legal analysis. The analysis and recommendations, we hope, will make a contribution to improving the lives of affected individuals and communities. 3 The progress that has been made in India on LGBTQ rights and in the protection of economic, social and cultural rights more generally, is evidence both of the changing world of which Nehru spoke, as well as the law’s capacity to evolve and improve - however belatedly and imperfectly. I trust that this report and its recommendations will serve as an important resource for policymakers, civil society and lawyers who are seeking to support and build upon that progress. - Justice Ajit Prakash Shah 2nd June 2019 4 TABLE OF CONTENTS ACKNOWLEDGEMENTS 2 PREFACE 3 EXECUTIVE SUMMARY 7 INTRODUCTION 13 OBJECTIVE, SCOPE AND STRUCTURE OF THE REPORT 15 RESEARCH METHODOLOGY 16 PRIMARY RESEARCH INTERVIEWS 16 SECONDARY SOURCES 17 RIGHT TO INFORMATION REQUESTS 17 GENERAL LEGAL FRAMEWORK 19 THE INDIVISIBILITY OF HUMAN RIGHTS 19 STATE OBLIGATIONS TO REALIZE HUMAN RIGHTS 20 THE RIGHT TO REMEDIES FOR VIOLATIONS 22 PROTECTION OF LGBTQ RIGHTS UNDER INTERNATIONAL LAW 23 APPLICATION OF INTERNATIONAL LAW IN INDIA 23 FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES 24 PROHIBITION AGAINST DISCRIMINATION 24 RECOGNITION OF INTERNATIONAL LAW AND STANDARDS 26 TABLE: TREATIES SIGNED OR RATIFIED BY INDIA 27 HOUSING 28 LEGAL FRAMEWORK RELATED TO HOUSING 29 RIGHT TO ADEQUATE HOUSING IN INTERNATIONAL LAW 29 RIGHT TO ADEQUATE HOUSING IN INDIAN LAW 33 OTHER RIGHTS AFFECTED BY A LACK OF ACCESS TO HOUSING 34 FAILURE TO ENSURE THE RIGHT TO ADEQUATE HOUSING OF LGBTQ PERSONS IN INDIA 37 SAFETY AND SECURITY: VIOLENCE AND HARASSMENT IN THE HOME 37 DISCRIMINATION FACED BY LGBTQ PERSONS SEEKING HOUSING 50 LACK OF SECURITY OF TENURE AND FORCED EVICTION 55 HOMELESSNESS 57 BOX 1: SHELTER HOMES FOR LGBTQ PERSONS – RTI RESPONSES 60 RECOMMENDATIONS ON HOUSING 63 WORK 65 RIGHT TO WORK IN INTERNATIONAL AND DOMESTIC LAW 66 GENERAL RIGHT TO WORK 67 MINIMUM CORE OF THE RIGHT TO WORK 69 THE RIGHT TO WORK IN INDIAN CONSTITUTIONAL LAW 71 RELATED HUMAN RIGHTS 72 OBSTACLES TO LGBTQ PERSONS’ ENJOYMENT OF THE RIGHT TO WORK 74 ACCESSING EMPLOYMENT 75 5 CONDITIONS OF WORK 87 JOB SECURITY 96 BOX 2: SEX WORK 98 RECOMMENDATIONS ON WORK 102 PUBLIC SPACES 104 ACCESS TO PUBLIC SPACES AND HUMAN RIGHTS LAW 105 INTERNATIONAL LAW FRAMEWORK ON PUBLIC SPACES 105 DOMESTIC LAW FRAMEWORK 110 DISCRIMINATION IN ACCESSING PUBLIC SPACES 112 PUBLICLY-OWNED OR ADMINISTERED SPACES 113 PUBLIC SPACES OWNED BY PRIVATE ACTORS BUT OPEN TO PUBLIC 127 RECOMMENDATIONS ON PUBLIC SPACES 131 GENERAL RECOMMENDATIONS 133 ANNEXURE I: GLOSSARY 135 ANNEXURE II: RESPONSES TO RIGHT TO INFORMATION APPLICATIONS FILED BY ICJ 138 6 EXECUTIVE SUMMARY In a series of historic judgments, the Supreme Court of India has definitively pronounced that the rights of lesbian, gay, bisexual, transgender and queer (LGBTQ) persons are fully protected by the Indian Constitution, in recognition of the discrimination faced by individuals due to their real or perceived sexual orientation, gender identity and gender expression (SOGIE). The Court grounded its decisions in the experiences of LGBTQ persons and drew extensively on international human rights law. These judgments have been celebrated in India and around the world, and have formed the foundation of a developing jurisprudence protecting LGBTQ rights. In the first of these judgments, National Legal Services Authority v. Union of India (NALSA), the Supreme Court held that rights guaranteed in Articles 14 (equal protection of the law), 15 (non-discrimination based on sex), 16 (equality of opportunity), 19 (privacy, self-identity, autonomy and personal integrity) and 21 (the right to life with dignity) apply without exception to transgender persons.