INTRODUCTION
The world community is responsible for the long overdue in how we view transgender persons. Gender, for the longest time, has been an austerely binary concept, but we are slowly transitioning and accepting gender identities the way they are and the people for who they are. The case of Navtej Singh Johar v. Union of India (hereinafter “Navtej Singh Johar”) has brought significant change, but we have a long way to go. The forms still read as male, female or prefer not to say, workplaces and schools do not have an inclusive environment and the society still stigmatizes anyone who does not fall within their definition of set gender norms. To this date when our Constitution identifies transgender persons as a ‘third gender’, we see many legislative setbacks and lacunae in the existing law.
INITIATIVES UNDERTAKEN IN THE INDIAN REGIME FOR THE PROTECTION OF TRANSGENDER PERSONS
Before delving into the grey areas of our realities, it is pertinent to note the victories and developments this country has witnessed. The first ray of hope was the case of NALSA v. Union of India (hereinafter “NALSA”), wherein the Hon’ble Supreme Court had adjudged the right to one’s gender identity and sexual orientation to be included within their right to live with dignity and autonomy. Furthermore, the case of K.S. Puttaswamy v. Union of India had shed light on the right to freely identify one’s own gender and not be caged under society’s constructs of specific sexual orientations. This gave rise to the abolition of Section 377 in Navtej Singh Johar, where it was established how citizens were marginalized based on their identities and how the Constitution endows upon us the duty to make them feel accommodated and entitled to their free will.
The Transgender Persons (Protection of Rights) Act, 2019 (hereinafter “TPR Act”) also emphasizes that no private or government entities shall discriminate against the third gender in aspects of recruitment or promotion. Any sort of biased treatment or discriminatory termination is prohibited. Two key features of the TPR Act are provided – firstly, the establishment of vital facilities (like bathroom access, etc.); and secondly, the appointment of a complaint officer, and consequently, a proper grievance redressal mechanism. The Occupational Safety, Health and Working Conditions Code, 2020 has also been made inclusive of transgender workers. It further obligates employers to maintain health and working conditions and asks establishments to ensure sufficient latrine arrangements for male, female and transgender persons separately and similar arrangements for bathing areas and locker rooms under wellness provisions. It remains paramount that these developments are taken cognizance of and the rules are abided by, as these Statutes would be hollow pieces written in black and white if they cannot be effectuated.
While measures have been taken to provide transgender persons with equal rights and opportunities, there still exist numerous obstacles for them in the Indian labour market. This is further exacerbated by the gaps present in the laws, which either do not recognize or do not provide equal rights for transgender persons as compared to their counterparts. These gaps have been highlighted the following five spheres – (A) Prohibition of Discrimination; (B) Protection from Harassment; (C) Access to Washrooms; (D) Equal Remuneration; and (E) Maternity Benefits.
Prohibition of Discrimination in Matters of Employment
The Hon’ble Supreme Court has clarified that the Constitution of India prohibits“discrimination in all matters of employment by the State”, which is in line with Article 1 of the Discrimination (Employment and Occupation) Convention, 1958, of which India is a ratifying party. Further, Section 3(c) of the TPR Act prohibits unfair treatment in employment and denial or termination from thereof; while Section 9 protects transgender persons from discrimination in all matters related to employment, which include recruitment and promotion.
Though the provisions are well-intentioned, they do not provide a remedy if such discrimination were to occur. These rights and obligations are ineffective without any means of reparation in place. In lieu of the same, substantiating the anti-discrimination provisions by inserting a provision for remedies into the TPR Act would ensure that these kinds of discrimination are prohibited and not practised by the citizens of this country.
Protection from Harassment in the Workplace
Presently, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter “POSH Act”) acts as statutory protection for women from harassment at their workplace. Albeit being a step in the right direction, the POSH Act fails to include transgender persons within its ambit. Transgender persons, who are equally, if not more, susceptible to harassment at their workplace, would have no statutory backing to their protection in the workplace. Therefore, in light of this, the inclusion of transgender persons within the scope of the POSH Act, which would provide them with more protection and recourse in incidents of harassment, would be the way forward.
Access to Washrooms in Private Businesses
In NALSA, the Hon’ble Supreme Court had issued a direction for the construction of separate toilets for transgender persons in public places, including hospitals. Similarly, the Ministry of Sanitation, in 2017, had issued directives that allowed transgender persons to use the public washroom of their own choice. While these are welcome moves for the inclusivity of transgender persons, they have two drawbacks – firstly, they are inapplicable to private businesses; and secondly, there has been a lack of implementation of the directives despite several attempts by courts to enforce the same.
The capital of the country, after almost seven years of the judgment, has only recently planned on the construction of ‘third-gender’ public toilets in its government facilities. Moreover, these directives do not obligate any private workplaces to construct a separate washroom for their transgender employees or allow them to use one of their own choice. This shall act as a deterrent for transgender employees from working in private companies. Thus, in this respect, the inclusion of private workplaces and businesses within the ambit of the directives issued to ameliorate the condition of workplaces for transgender employees would be a step further for the protection of transgender employees.
Equal Remuneration for Work of Equal Value
Article 2(1) and of the Equal Remuneration Convention, 1951, states that remuneration should be equal between workers for work of equal value, regardless of their sex or gender identity. India has taken a step forward in this sphere by introducing the Code of Wages in 2019, which replaced four existing laws – including the Equal Remuneration Act, 1976. Instead of limiting itself to the scope of the two binary genders, Section 3(1) of the Code of Wages, 2019, includes all genders within its purview of equal pay guarantee; thus, ensuring that transgender persons have the statutory right of being compensated equally as their counterparts for their work. This step of the Government is celebrated; however, the only thing to address in this aspect is the practical implementation of this provision – which can be seen only with the passage of time.
Maternity Benefits for Transgender Persons
The Maternity Benefit Act of 1961, and the Social Security Code of 2020 (hereinafter “Code”), are both non-inclusive of transgender mothers. While the Code is a step forward for adoptive and commissioning mothers, it does not include under its realm transgender persons who (a) have the ability to give birth but are not women; and/or (b) have opted for adoption. This is a drawback for transgender employees who wish to have children, whether biological or adoptive, as they cannot avail the option of maternity leave. The inclusion of transgender persons within the ambit of the Code would be sufficient to be at par with their counterparts, which would provide them with the same benefit of maternity leave.
CONCLUSION
The Government and Judiciary have undertaken several laudable initiatives to promote the protection of transgender persons in the Indian society. However, these initiatives are riddled with provisions that have no force in implementation or are non-inclusive of transgender persons and their well-being. Such provisions are toothless in nature, and better steps need to be taken to ensure transgender persons’ right to livelihood. Such measures can be taken in two major ways – firstly, by the inclusion of transgender persons in the existing provisions that give rights and opportunities to their compeers; and secondly, by ensuring that the Central and State government duly implement these provisions and that they do not exist solely on paper. With this, it is hoped that further steps are taken to promote and protect the inclusion of transgender persons in the Indian Labour & Employment laws.
Garima Khanna and Priankita Das are 4th year B.A. LL.B. (Hons.) students at Dr. Ram Manohar Lohiya National Law University, Lucknow.
Picture Credits: Wikipedia.
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