Abstract
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 commonly known as the POSH Act - stands as a landmark piece of legislation in India's gradual and often difficult journey toward safer workplaces. But the title itself tells you something fundamental: it is a law for women. In the years since the #MeToo movement swept India in 2018, questions about who the law actually protects have grown louder and, frankly, harder to ignore. Men who face harassment at work have no statutory remedy under POSH. Transgender and non-binary employees occupy an even more uncertain legal position - the Act does not mention them at all. This paper examines the structural limitations of the POSH Act's gender-exclusive framework, traces the constitutional tensions it creates under Articles 14 and 15, and explores how the post-#MeToo landscape has both illuminated these gaps and intensified calls for legislative reform. Drawing on comparative models from the United Kingdom's Equality Act 2010, American Title VII jurisprudence developed through Oncale and Bostock, and South Africa's Employment Equity Act 1998, and building on India's own evolving constitutional jurisprudence through NALSA and Navtej Singh Johar, this paper argues that a genuinely inclusive anti-harassment law one extending protection to all workers regardless of gender is not merely desirable but constitutionally necessary.
I. Introduction
When India's Parliament passed the POSH Act in 2013, it was framed as the fulfillment of a long-overdue promise specifically, the Supreme Court's directions in Vishaka v. State of Rajasthan (1997), where the Court had stepped in to fill a legislative vacuum following the brutal gang rape of social worker Bhanwari Devi at her workplace. The Vishaka guidelines were narrow in scope by design: they responded to systemic patterns of workplace violence against women in a country that had no grievance mechanism whatsoever for such complaints. The POSH Act inherited both that urgency and that narrowness.
The Act was a significant advance on multiple fronts. It extended to the unorganised sector, domestic workers, apprentices, and even women in transit to workplaces. It drew on India's international commitments under CEDAW and on the constitutional framework of Articles 14, 15, 19, and 21. By the early 2020s it had become the primary legal instrument through which workplace sexual harassment was addressed across India invoked in thousands of complaints across sectors ranging from banking and hospitality to academia and domestic employment. Nobody seriously disputes that the POSH Act was necessary. The question this paper raises is whether it is sufficient, and whether its gender-exclusivity can survive constitutional scrutiny in the India of 2025.
The Act's architecture has a fundamental limitation built into its foundations. Its protections flow in one direction only: from the category of 'aggrieved woman' toward a 'respondent' who may be any person. Men who are harassed at work - by women, by other men, or by anyone — have no POSH remedy. Transgender and non-binary employees are not mentioned at all in the statute's text. And the #MeToo movement of 2018, which briefly forced India to confront the scale of workplace harassment, ultimately reinforced rather than dismantled this binary framework. That binary is the subject of this paper.
The paper is structured in seven substantive sections following this introduction. Section II sets out the POSH Act's legislative architecture and its underlying assumptions. Section III examines in detail who the Act leaves behind the gender exclusivity problem. Section IV looks at the #MeToo movement's complicated legacy for inclusive workplace protections. Section V explores the legal vacuum facing LGBTQ+ workers. Section VI surveys judicial interpretations, both Indian and comparative. Section VII draws on international frameworks. Section VIII offers reform proposals, and Section IX concludes. The argument throughout is straightforward: protecting women at the workplace is necessary but not sufficient and the time to move beyond the binary has genuinely arrived.
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