LAW ON TRANSGENDERS AND THEIR INCLUSION IN WORKPLACE
Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019 defines Transgender as a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta. “Person with intersex variations” means a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes or hormones from normative standard of male or female body.
Due to widely rampant discriminative practices in society and ostracism for centuries transgender’s usually end up as beggars or even prostitutes and live a life full of fear. Non-recognition of the identity of transgender persons has denied them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault and further results in them facing extreme discrimination in the field of employment, education, healthcare and in access to public spaces like restaurants, cinemas, shops and malls.
The landscape is now changing as India now gears up to include and recognise transgender’s as the third gender due to several landmark judgments by the Supreme Court.
- National Legal Services Authority vs. Union of India AIR 2014 SC 1863
Acknowledging that Indian laws are substantially binary in nature, recognising only male and female genders, the Honorable Supreme Court of India declared transgender individuals distinct from binary genders, as the ‘Third Gender’ under the Indian constitution and for the purposes of laws enacted by the parliament and state legislatures. The Court put emphasis on the psychological sex rather than the biological sex i.e. gender recognition based not on biological way but by psychological tests. The Court declared transgender’s have a right to self identification and self determination either as a male, female or third gender and are recognised as such by the Centre, State governments and in the eyes of law. All government documents such as ration card, passports, etc. would recognize third gender. The Court also held that the transgender’s are fully entitled to get the benefit of all schemes and programs launched by the Government. The Court held that transgender’s are entitled to all the rights under the Indian Constitution. These rights include:
Article 14 is a right enjoyed by “any person” it applies equally to men, women and transgender’s. Transgender’s are entitled to equal protection of the law. They have equal right in employment, health care, education and civil rights. Discrimination on the grounds of sexual orientation and gender identity represents inequality before the law and unequal protection of the law and violates Article 14.
Article 15 transgender’s have not been able to enjoy the provisions under Article 15(4) for the advancement of the socially and educationally backward. They constitute such a group and the state is bound to take some proper action to remedy the injustice done to them for centuries.
Article 19 transgender’s have a right to show or express gender identity through words, dress, action or behavior (right to freedom of expression), right to privacy, self-identity, autonomy, and personal integrity.
Article 21 transgender’s have a right to live a dignified life and enjoy personal liberty.
- Anamika vs Union of India & Ors. 2018 WP (CRL) 2537/2018
High Court heard a petition by a transgender student from Delhi University who wanted to lodge a complaint against male students who allegedly sexually harassed her, but was not entertained by the police. According to the police, there was a lack of an appropriate penal section under which they could register such a complaint. As Section 354A of the IPC deals with sexual harassment and punishment for sexual harassment under which complaints can only be made by women, excluding transgender’s. The Delhi High Court in this judgment ruled that section 354A of the Indian Penal Code can now also be used by transgender persons to register complaints of sexual harassment. The police then registered the complaint under IPC section 354A and the petition was dismissed.
- Navtej Singh Johar vs. Union of India WP (Crl.) No. 76 of 2016 D. No. 14961/2016
The Supreme Court of India held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality. It was held that Section 377 of the IPC violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population. The LGBTQ (lesbian, gay, transgender, queer) community through this judgment have got right to sexuality, right to sexual autonomy and right to choice of a sexual partner. It decriminalised homosexuality.
In the wake of the Nalsa Judgment, the Indian parliament recently enacted the Transgender Persons (Protection of Rights) Act, 2019 that laid out the rights and protections for the marginalised community. Measures like prohibiting discrimination to them, formulation of welfare measures, programmes for education, social security, healthcare, effective participation in the society, rescue and rehabilitation measures, making establishments responsible for following the provisions of the Act, offences and penalty provisions will definitely improve the conditions of the third gender.
Salient features of Transgender Persons (Protection of Rights) Act,2019
- Protection from discrimination
No person or establishment shall discriminate against a transgender person, including denial of service or unfair treatment in relation to:
- Employment or occupation
- Access to, or enjoyment of goods and services, facilities, or opportunity which is made available to the general public
- Right to movement
- Right to reside, rent, or otherwise occupy the property
- Opportunity to stand for or hold public or private office
- Access to a government or private establishment in whose care or custody a transgender person is
- Protection from sexual harassment Section 18(d) of the Actwhich provides that whoever harms or endangers the life or well-being, whether mental or physical, of a transgender person or does acts such as causing physical, sexual, verbal, emotional or economic abuse shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.
- Obligations on Establishments
- Establishments shall not discriminate against transgender’s in matters relating to employment including recruitment or promotion.
- Every establishment shall have a person to be a complaint officer to deal with the complaints relating to violation of the provisions of this Act.
Inclusion of Transgender’s in workplace
Organisations should recognise transgender’s as human beings first and not put a gender label on them or judge their sexual preference. Not just the government but Corporates have also started adapting diversity and inclusion in their workforce, building a cohesive work culture. There are organisations like Fujitsu, Thought Works which have special policies for transgender’s to enable them a happy workplace. Small actions like having a trans person in advertisement, assigning them important roles will benefit them. Companies under Corporate Social Responsibility should focus on awareness campaigns towards inclusion of transgender’s in their families, society and should work in creating education and employment opportunities for them.
Companies can undertake some steps to create a more equitable and inclusive environment such as:
Educate workforces around gender inclusivity, awareness about them and greater acceptance of transgender individuals in the corporate environment.
- Policy review
Organisations must review and update their existing HR, administrative, recruitment and employee benefit policies. It would be beneficial to incorporate suggestions from a person from the transgender community.
- Anti-harassment policies
Similar to the POSH Act (The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013), organisations must put in place internal grievance redressal mechanisms for transgender individuals to deal with the harassment complaints, while keeping the identity of the complainant anonymous.
- Gender neutral washrooms
Employees should have access to washrooms that are appropriate to their gender. Trans women are often subject to harassment as they are forced to use male washrooms.
- Training programs to increase skills and soft skills
We as a society are obligated to demonstrate inclusiveness and respect towards the transgenders so that they can live a life of dignity, equality and non-discrimination. Let us celebrate the differences we have and look at each other empathetically. Let us not exploit each other’s shortcomings and let us thrive together.