gender gelijkheid
beeld:

Opinion: ‘LGBTIQ+ community overlooked in ILO Convention 190’

‘Violence and harassment in the world of work remains pervasive particularly in the context of capitalist hegemony, labour flexibility and the resulting restructuring of the workplace.’ Sais Dawu Sehlaphi from FOS.

While Convention No. 190 on Eliminating Violence and Harassment in the World of Work, and the accompanying Resolution Recommendation No. 206, whose entry into force is set for 25 Jun 2021 are a welcome development towards addressing violence in the work place. Rights of LGBTIQ+[*] communities are however, excluded by omission, both by language and experiences.

 

Convention No. 190 on Eliminating Violence and Harassment in the World of Work, largely referred to as C190 has been hailed as one of the progressive instruments yet towards workplace transformation.   One of the most noticeable elements of the Convention is its clear definition of terms and expanded scope of the workplace and violence.  It talks to an expanded definition of violence, employer responsibility and accruing rights for the employees. Amongst other resolutions the Convention applies to violence and harassment in the world of work occurring in the course of, linked with or arising out of work: in the workplace, including public and private spaces where they are a place of work including when commuting to and from work[1].  Article 3 of the Convention has widened the scope of violence taking into account violence and harassment involving third parties where applicable.  It also talks to broad based support of victims ensuring access to remedies and support for victims and workplace remedial actions/ strategies.

Furthermore, Article 2 gives an expanded definition of who qualifies as a worker; to include persons such as interns and apprentices, volunteers, jobseekers and job applicants, and individuals exercising the authority, duties or responsibilities of an employer’. Thereby extending rights to a category of workers that has been excluded by previous instruments. Making it well poised to respond to some challenges resulting from workplace restructuring.

Further, C190 explicitly highlights which social categories make up vulnerable groups; child labourers, women migrant workers, informal economy actors, domestic workers and persons with disabilities are explicitly spelt out. Perhaps the most critical one yet is Article 1 which  gives a clear definition of “violence and harassment” and “gender based violence’’ and related effects, including amongst other things physical, psychological, sexual or economic harm.

ILO-sessie-geweld op werkvloer-© Crozet : Pouteau
Commissie 'Geweld en Intimidatie in de arbeidswereld', 108e zitting van de IAO. Genève, 20 juni 2019.beeld:

The Convention had been hailed as an instrument that ‘for the first time, there is a clear and common framework to prevent and address violence and harassment, based on an inclusive, integrated and gender responsive approach[2]. While C190 reaffirms the relevance of the fundamental Conventions of the International Labour Organization such as Universal Declaration of Human Rights. International Covenant on Civil and Political Rights (ICCPR) which provides for equality before the law and the right to non-discrimination on the basis of sex, which the UN Human Rights Committee (HRC) has ruled to include SOGI Elimination of All Forms of Discrimination against Women, the articles argues that there are limitations.  The argument is informed by Article 1 which talks to Gender Based Violence (GBV).  Firstly, C190 adopts a binary approach to gender.   The explicit needs and experiences of the LGBTIQ+ communities, a group that is more likely to face structural, direct and cultural forms of violence has been overlooked.  While the C190 talks GBV it fails to explicitly flag sexual orientation or gender identity.  Using inclusive language demonstrates respect to individuals, particularly those in vulnerable positions. Moreover, it points to the need for workplaces and communities to develop and deliver relevant policies and programmes. The LGBTIQ + is more likely to face decent work deficits than people who their counterparts who identify as heterosexual.   The Convention needs to be careful that it does not come across as complicit in gender prejudices. It is critical that it adopts a broad focus on gender beyond heteronormativity.

LGBTIQ+ communities are disproportionately exposed to direct, structural and cultural violence. Examples include being asked repeatedly about one’s sexual orientation or gender identity, being refused a job because of one’s sexual orientation or gender identity as well as being passed over for promotion because of one’s sexual orientation or gender identity.  This is crucial in the understating of the violence that LGBTIQ+ communities are subjected to both inside and outside the workplace. This therefore necessitates a reconceptualization of the understanding and response to the needs LGBTIQ+ communities in and outside of work.

Gender and gender identity plays a major role in access shaping access to workplace rights (and other rights in general such as health).  Identifying as LGBTIQ+ or as non-gender conforming amplifies susceptibility to workplace discrimination and violence. In general rights of the LGBTIQ are relegated to the periphery and this has found expression in the work place too. Their rights generally neglected in workplace policy and practise.  In circumstances where policy recognises their rights, practise is often lacking making the whole point no more than a “tick box” exercise.  As a result (re)producing direct and structural violence, with the LGBTIQ+ communities experiencing opportunistic, direct  and systematic  and cultural violation of rights. State and non-state actors are also complicit in the violence experienced by LBGTIQ + communities contributing to labour and broader socio-economic and political violations.

Homosexuality is criminalised in most SADC countries.  While same sex relationships have been decriminalised in South Africa and Mozambique they are undermined by ambiguity, contradictions and a lack of policy enforcement.   In Zimbabwe sex relations remain criminalised, this despite the country being signatory to the International Covenant on Civil and Political Rights (ICCPR) which provides for equality before the law and the right to non-discrimination on the basis of sex including sexual orientation and gender identity. As signatory to the ICCPR, Zimbabwe is obligated to conform to its provisions despite domestic law and recognise rights of LGBTIQ+ communities[3]. South Africa was the first country in the continent to decriminalise same sex relations, in 2006. Mozambique followed suit in 2015. However, there are no anti-discrimination laws protecting LGBTIQ+persons.  Current anti-discrimination law does not include the LGBTIQ+ community. This is a gap that instruments such as C190 should be talking to.

Current workplace practice tends to unproblematic associations of gender identity and sexual orientation and workplace equality. This puts sexual mino

None of the three countries in the FOS programme have ratified C190 (yet) however lobby, advocacy and popularization of the Instrument is ongoing. The current FOS programme does not explicitly work on LGBTIQ+ related matters, however gender is a general theme cutting across the programme.  A more systematic and sustained approach to LGBTIQ+ programming and related concerns is set to be given in-depth focus in the next programme; and follow up article.

The follow up article will profile LGBTIQ+ activists and will seek to answer the following questions:

  • What drove them into LGBTIQ+ activism and what has been their experience?
  • How does policy framework in their respective countries shape the realities of sexual minorities?
  • What forms of organising do the LGBTIQ+ engage and why?
  • How can organising and lobby and advocacy be strengthened including the sharing of best practises?
  • What in their opinion needs to be done to improve the realities of the LGBTIQ+?
  • What are their views on C190?

Conclusion

The Convention talks to the elimination of violence and harassment in the world of work, it speaks to ‘Acknowledging the historic opportunity to shape a future of work based on dignity and respect, free from violence and harassment.[4]’ Further, it talks to ‘ all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity[5]’ among other measures yet it omits the lived experiences of one of the most vulnerable groups both inside and outside the workplace. Current workplace practice tends to unproblematic associations of gender identity and sexual orientation and workplace equality. This puts sexual minorities at risk and heightens their vulnerabilities, undermining gender equity policies.  This begs the question – How can we even begin to imagine a dignified, respectful and violence free work place and society when one of the most precarious social categories remains missing in policy formulation and practise? The Convention is clearly off the mark in terms of promotion gender diversity and social inclusion within the workplace.

[*] FOS recognises that terminology used to describe Sexual Orientation, Gender Identity and Expression, and Sex Characteristic (SOGIESC) is diverse and is constantly evolving. The language changes over time and can differ across cultures, generations, and political ideologies.  For the purposes of this document FOS adopts the term (Lesbians, Gays, Bisexual, Transgender, Intersex, as an inclusive umbrella abbreviation to encompass a range of diverse sexualities (LGBTIQ+). The + generally represent genders and sexualities outside of the letters.  LGBTIQ stands for Lesbian, Gay, Bisexual, Trans and gender diverse, Intersex, Queer and questioning. Available at https://www.vic.gov.au/inclusive-language-guide (Assessed 20 October 2020).

[1] Eliminating Violence and Harassment in the World of Work Convention No. 190, Recommendation No. 206, and the accompanying Resolution.  International Labour Organization 2019. Available at https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/—publ/documents/publication/wcms_721160.pdf    ( Accessed 19 October 2020)

[2] Eliminating Violence and Harassment in the World of Work Convention No. 190, Recommendation No. 206, and the accompanying Resolution.  International Labour Organization 2019. Available at https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/—publ/documents/publication/wcms_721160.pdf   ( Accessed 19 October 2020)

[3] Canaries in the coal mines: An analysis of spaces for LGBTI activism in Zimbabwe. Country report, The Other Foundation, 2017.

[4] Ibid

[5] Eliminating Violence and Harassment in the World of Work Convention No. 190, Recommendation No. 206, and the accompanying Resolution.  International Labour Organization 2019. Available at https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/—publ/documents/publication/wcms_721160.pdf  ( Accessed 19 October 2020)