Open Access Research Article
TRANSGENDER RIGHTS IN THE WORKPLACE: LEGAL CHALLENGES AND INCLUSIVITY
Published Paper
Article Details
TRANSGENDER RIGHTS IN THE WORKPLACE: LEGAL CHALLENGES AND INCLUSIVITY
AUTHORED BY - KHUSHI SINGH
INTRODUCTION
The identity of an individual is
often determined by the moral dictates and judgments of the society. Transgender
persons are people whose identities are different from the stereotypical gender
norms, which identify genders only as male or female.[1]
Indian Mythology offers insights into
the past treatment of transgender individuals, revealing their historical
veneration. Hindu Mythology showcases deities with changing genders, such as
Ardhanarishvara, symbolizing integration of Shiva and Parvati. Mahabharata and
Ramayana highlight significant transgender figures like Shikhandi and Aravan,
tracing lineage. Additionally, hijras, a transgender community, held esteemed
positions in Mughal courts and religious institutions, their influence
declining during British rule due to legislative changes. Though the society has failed to accept their
gender identity due to which they have suffered from discrimination, social
oppression and physical violence. However, the change in global outlook towards
transgender persons has resulted in a corresponding shift in India as well. The
Supreme Court’s judgement in the case of National
Legal Services Authority v. Union of India [2]was
the first major illustration of this shift, as the Court declared transgender
persons apart from binary genders and affirmed their identities as the third
gender under our Constitution. This was followed by the Transgender Persons
(Protection of Rights) Act, 2019 [3]that
established the National Council for Transgender Persons and imposed penalties
for offences committed against transgender persons.[4]
Legal Framework for Transgender Rights
The preamble of the Universal Declaration of Human Rights
underscores the commitment to fundamental human rights, gender equality, and
social progress.[5] In 2014, a
landmark ruling by the Indian Supreme Court in National Legal Services Authority v. Union of India 6granted
legal recognition to the third gender, challenging the binary gender
paradigm.
? Drawing from Articles 14, 15, and 16
of the Indian Constitution, the judgment extended equal rights and protections
to transgender individuals, breaking away from the conventional gender norms.
It interpreted "person" in Article 14 to encompass nonbinary
identities, ensuring legal safeguards across all state activities. [6]Furthermore,
Articles 15 [7]and 16 were
construed to include "gender identity," thus prohibiting
discrimination based on sexual orientation.[8]
? The verdict not only affirmed gender
expression rights but also highlighted the constitutional protection of dignity
under Article 21. [9]This
decision aligned with international human rights principles, reflecting the
Universal Declaration of Human Rights and Yogyakarta principles. It was a
ground-breaking step in recognizing gender identities post-Sex Reassignment
Surgery, asserting the right to legal recognition of reassigned sex. Following
the ruling, the Ministry of Social Justice sought clarification on the
judgment's implications, addressing the recommendations of an expert committee
report.
? Transgender Persons
(Protection of Rights) Act, 2019
-
"Transgender
Persons (Protection of Rights) Bill, 2019" that was introduced in the
Indian Parliament to address the rights and concerns of transgender individuals
in the country.
The bill aimed to provide legal recognition to transgender persons and ensure protection of their rights. It covered various aspects including the definition of transgender persons, their right to self-perceived identity, anti-discrimination measures, provisions for health care and social welfare, and the establishment of a National Council for Transgender Persons11 to monitor and implement the provisions of the bill.[10]
The bill aimed to provide legal recognition to transgender persons and ensure protection of their rights. It covered various aspects including the definition of transgender persons, their right to self-perceived identity, anti-discrimination measures, provisions for health care and social welfare, and the establishment of a National Council for Transgender Persons11 to monitor and implement the provisions of the bill.[10]
-
The
2019 Act defines transgender individuals and prohibits employment
discrimination, including denial and termination of employment[11], as
highlighted in Section 3(c). [12]
-
Section
5 of the Act presents contentious provisions outlining the procedure for
transgender individuals to obtain a certificate of identity. [13]
-
Section
9 of the Act explicitly states that establishments cannot discriminate against
transgender persons in employment matters, encompassing aspects such as
recruitment and promotion.[14]
-
Furthermore,
Section 10 mandates establishments to ensure adherence to the Act's provisions
and provide specified facilities. [15]
-
Complementing
this, Section 11 necessitates each establishment to designate a complaint
officer responsible for addressing grievances related to Act violations.18
? Equal
Remuneration Act, 1976
-
This
act prohibits discrimination in terms of remuneration on the basis of gender.
It aims to ensure equal pay for equal work and includes protection for
transgender employees. 19
? The
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013
- While the title specifies women, the act is applicable
to all individuals, including transgender people, who face sexual harassment at
the workplace. [16]
? All transgender
women can seek protection under all the sections of the Indian Penal Code
protecting women from sexual abuse. This was mentioned by the High Court of
Delhi in the case of Anamika v. Union
of India (2020).[17]
NALSA and other Landmark Judgements:
o
In
the landmark judgment National Legal
Services Authority v. Union of India and Ors . [18]In
2014, the Supreme Court identified the rights of the transgender community as a
“third gender”. This case paved way for transgender persons with the right to
choose their gender identity and live their life with dignity.
o
In
the case of G. Nagalakshmi v. Director
General of Police (2014), [19]the Madras
High Court observed that in the absence of any special law, any person has the
liberty to choose their sexual or gender identity and upheld the petitioner’s
right to choose their own gender.
o
In
Puttuswamy v. Union of India (2017), 24the
Supreme Court noted the constitutional right to privacy inherent in the right
to life, equality and fundamental freedoms. This includes the right.
Challenges Faced by Transgender
Employees
? Under the Equal Remuneration Act,
1976 it's an essential mandate for the employers to keep a record of employees,
including information about their pay and personal details, which encompass
gender. However, confusion arose due to Form 'D' which only allows for entries
regarding the count of male and female employees. Consequently, employers were
uncertain about the classification of transgender employees as Form 'D' didn't
include a specific provision for such categorization.
Probable solution to the problem is fairly straightforward,
Form-‘D’ can be modified by adding a column for transgender workers so that
their details are accurately represented. 25
? A similar situation arose under the Maternity Benefit Act, 1961 [20]as there
was confusion over whether transgender employees are entitled to maternity
benefits. This is because the Act uses the word ‘woman’ throughout and defines
it under Section-3(o) as a woman employed, whether directly or through any
agency, for wages in any establishment. Transgender men, basically those
persons who were assigned the female gender at birth are capable of giving
birth under some circumstances. [21]Thus, this
resulted in confusion from a compliance perspective as the employer in this
situation was unsure as to provision of benefits as well as procedural norms
such as the various Forms under the Act that only refer to women.
The solution to this is slightly more complex as it involves
a determination of whether the transgender individual in question is capable of
giving birth. However, most State rules under the Maternity Benefit Act, 1961
require submission of a Form that is signed by a medical practitioner affirming
the existence of a pregnancy. Therefore, the existing system has the requisite
mechanism to ensure transgender pregnancies can be accounted for.
? Another major problem several
employers face is that of a lack of gender-neutral washrooms and locker
facilities/changing rooms. Often resulting in humiliation for A transgender persons as they are
forced to use male washrooms. This can be easily resolved by providing gender
neutral washrooms in addition to male and female washrooms in workplaces.
Similar steps can be taken with regards to changing rooms and locker facilities
to ensure that transgender employees are comfortable. 28
? Transgender individuals often
experience discriminatory treatment in the workplace, such as being denied job
opportunities, being assigned menial tasks, or facing exclusion from important
meetings or projects due to their gender identity.
? Despite their qualifications and
skills, transgender employees might be overlooked for promotions and leadership
roles based on stereotypes or biases, hindering their career progression.
? Wage disparities are common, where
transgender workers are paid less than their cisgender counterparts for the
same job roles, reflecting the pervasive gender pay gap. Verbal, emotional, and
even physical harassment can be directed at transgender employees, contributing
to a toxic atmosphere that impacts their mental and emotional well-being.
: A Grey Area.
https://www.simpliance.in/blog/transgenderpersons-and-labour-law/
Role of Labour
Unions
Labour unions in India
play a significant role in advancing transgender rights in the workplace. They
act as advocates, raising awareness about discrimination, harassment, and
unequal treatment faced by transgender employees. Through collective
bargaining, unions negotiate for inclusive workplace policies that protect
gender identity and expression, ensure fair pay, prevent discrimination, and
provide access to gender-affirming benefits.
Unions provide a platform
for transgender employees to voice concerns and offer support to navigate
workplace challenges. They organize workshops and training sessions to educate
both employees and employers about transgender issues, fostering understanding
and inclusivity. Additionally, unions work towards legal reforms that strengthen
transgender rights by advocating for comprehensive legislation and policies.
Collaboration with LGBTQ+
organizations and advocacy groups amplifies unions' efforts, creating a united
front for advocating transgender rights. Overall, labour unions in India play a
pivotal role in shaping more inclusive, respectful, and equitable workplaces
for transgender individuals.
Directions and Recommendations for
Advancing Transgender Rights in the Workplace
(a) Identifying
Areas for Improvement in Current Legal Frameworks:
- Efforts should be directed towards
identifying gaps and uncertainties within the existing legal structures
concerning transgender rights. Thorough evaluations are essential to determine
where the safeguards are inadequate or ineffective.
(b) Proposed
Legislative Enhancements to Bolster Transgender Rights:
-
Comprehensive
Anti-Discrimination Laws: There is a pressing need to enact stringent
antidiscrimination legislation that explicitly encompasses gender identity and
expression. Clearly defined directives and significant penalties for violations
are crucial components.
-
Inclusive
Language: Legislative texts should adopt language that is inclusive, avoiding
gender-specific terms that might inadvertently exclude transgender individuals.
-
Inclusive
Health Coverage: It's imperative to mandate insurance policies to encompass
gender-affirming procedures, surgeries, and mental health support.
-
Incorporating
Gender Identity in Data Collection: Including gender identity in data
collection initiatives is vital for effectively monitoring workforce
representation and disparities.
(c) Guidelines
for Employers, Policymakers, and Advocates:
-
Sensitization
Programs: Employers should arrange training sessions to sensitize their
workforce about transgender issues, nurturing an inclusive organizational
culture.
-
Inclusive
Workplace Policies: The development and implementation of comprehensive
policies that cover gender-neutral facilities, dress codes, and restroom access
is essential.
-
Establishment
of Support Networks: Creating employee resource groups or support networks for
transgender individuals fosters a sense of inclusion and belonging.
-
Transgender-Inclusive
Healthcare: Employers should offer health insurance packages that encompass
gender-affirming treatments and mental health support.
-
Transparent
Recruitment and Advancement Processes: The adoption of transparent and
impartial recruitment and promotion practices is pivotal in ensuring equitable
opportunities.
-
Collaboration
with Advocacy Organizations: Policymakers should collaborate with LGBTQ+
advocacy groups to formulate and execute effective legislation and policies.
-
Raising
Awareness through Campaigns: Advocates can orchestrate campaigns to heighten
awareness about transgender challenges, dispelling misconceptions and nurturing
empathy.
-
Provision
of Legal Aid: Establishing programs to offer legal assistance to transgender
employees facing workplace discrimination provides essential support.
By actively addressing
these areas, stakeholders can contribute substantively to cultivating a work
environment in India that is not only more just and inclusive but also
guarantees the protection, preservation, and reverence of the rights of
transgender individuals.
CONCLUSION
In conclusion, our
examination of transgender rights within India's labour law framework
underscores both progress and persistent challenges. It's evident that while
legal strides have been made, refinements are essential to ensure comprehensive
protection for transgender individuals. Addressing gaps and ambiguities in
existing laws is imperative to provide robust safeguards against discrimination
and inequality.
Labour unions play a
crucial role in this journey. Their advocacy, negotiation for inclusive
policies, and education efforts hold immense potential to drive meaningful
change. Collaborating with policymakers, employers, and advocacy groups will
amplify their impact and contribute to comprehensive legal reforms.
Looking ahead, the
momentum toward greater transgender rights within Indian labour laws must be
sustained. A collective call to action is vital—a commitment from all
stakeholders to eliminate discrimination, foster inclusivity, and offer
equitable opportunities for transgender employees. Through legal enhancements,
inclusive policies, and awareness initiatives, we can forge a path toward
workplaces that honour the rights and contributions of all, regardless of
gender identity.
The path forward
necessitates unwavering dedication, ongoing advocacy, and collaborative
perseverance to reshape workplaces into environments where transgender
individuals can thrive. Only through sustained efforts can we realize a future
where transgender rights are fully embraced and upheld within India's labour
law.
REFERENCES
-
TRANSGENDER PERSONS BILL, 2014 . (n.d.). Retrieved
from THE RIGHTS OF
-
TRANSGENDER PERSONS BILL, 2014
-
johari, A. (2014). fcroll.in. Retrieved from Hijra,
kothi, aravani: a quick guide to transgender terminology: https://scroll.in/article/662023/hijra-kothi-aravani-a-quickguide-to-transgender-terminology
-
THE FIGHT TO DECRIMINALIZE HOMOSEXUALITY SINCE THE
REPEAL OF SECTION 377. (n.d.).
-
TRANSGENDER PERSONS BILL, 2015. (n.d.). Retrieved from
THE RIGHTS OF TRANSGENDER PERSONS BILL, 2015.
-
Gee Imaan Semmalar, Gender Outlawed: The Supreme Court
judgment on third gender and its implications,
April 19,
2014, http://roundtableindia.co.in/index.php?option=com_content&view=arti
cle&id=7377:because-we-have-a-voice-too-the-supreme-court-judgmenton-third-
enderand-its-implications&catid=120:gender&Itemid=133.
-
Manoj K. Jha, Transgender Rights in India,
http://iasscore.in/nationaldetails-74.html.
-
Corbett v. Corbett, (1970) All ER 33. 7R v. Tan &
Greaves, (1983) 2 All ER 12.
-
INDRANI SEN
GUPTA, HUMAN RIGHTS AND SEXUAL MINORITIES:
TRANSGENDER HUMAN RIGHTS (Gyan Publishing House, 2005).
-
M. Michel Raj, Historical Evolution of Transgender
Community in India, 4 ASIAN REVIEW OF SOCIAL SCIENCES 18, 17-19 (2015).
[1] Mishra, Akanksha. "Third Gender
Rights: The Battle for Equality." 2016,
https://doi.org/10.12728/culj.9.2.
[2] NALSA v. Union of India - AIR 2014
SC 1863.
[3] The Transgender Persons (Protection
of Rights) Act, 2019.
[4] Transgender Persons and Labour Law:
A Grey Area. https://www.simpliance.in/blog/transgender-persons-andlabour-law/
[5] Sigurdsson, Lakshmi, and Kirsten M.
Andersen. "Human Rights Education and the Conscience of Mankind:
Developing Didactics of Perplexity." 2022.
6 NALSA v. Union of India - AIR 2014 SC 1863.
[6] The Constitution of India, 1950,
Art. 14.
[7] The Constitution of India, 1950,
Art. 15.
[8] The Constitution of India, 1950,
Art. 16.
[10] Transgender Persons (Protection of
Rights) Act, 2019.
[11] India?: Transgender Persons
(Protection of Rights) Act, 2029 provides for inclusive education &
opportunities without discrimination. (2023, August 2). MENA Report.
[12] Transgender Persons (Protection of
Rights) Act, 2019, Section 3(c).
[13] Transgender Persons (Protection of
Rights) Act, 2019, Section 5.
[14] Transgender Persons (Protection of
Rights) Act, 2019, Section 9.
[15] Transgender Persons (Protection of
Rights) Act, 2019, Section 10. 18 Transgender Persons (Protection of
Rights) Act, 2019, Section 11. 19 Equal Remuneration Act, 1976.
[16] The Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013.
[17] Anamika Vv. Union of India, W.P.(C)
4356/2020.
[18] NALSA v. Union of India - AIR 2014
SC 1863.
[19] G Nagalakshmi v. Director General of
Police ((2014) 7 MLJ 452). 24 Puttaswamy v. Union of India – (2017)
10 SCC 1.
[20] Maternity Benefit Act, 1961.
Article Information
TRANSGENDER RIGHTS IN THE WORKPLACE: LEGAL CHALLENGES AND INCLUSIVITY
Authors: KHUSHI SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/24
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.