By Alok Tewari, Shivika Upadhyay and Vishal Singh. Firm: Kochhar & Co.
The Indian Supreme Court’s declaration that transgender individuals are a Third Gender under the constitution and recent legislation has significantly furthered recognition and rights for transgender individuals. This article looks at these developments and provides guidance for employers.
The golden thread that runs through the equality scheme of the Indian constitution (Articles 14,15,16, 19 and 21) is ‘enjoyment of life by all citizens and an equal opportunity to grow as human beings irrespective of their race, caste, religion, community, social status and gender.’
One of the basic tenets of the equality scheme lies in the recognition and acknowledgement of the ‘right of choice and self-determination’. Determination of the gender to which a person belongs and relates is intrinsic to their right of self-determination and their dignity.
Acknowledging that Indian laws are substantially binary in nature, recognising only male and female genders, the Honorable Supreme Court of India in its order in the case of National Legal Services Authority vs. Union of India (dated 15 April 2014, AIR2014SC1863, the ‘Nalsa Judgement’), 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.
Non-recognition of the Third Gender in the Indian legal framework has resulted in systematic denial of equal protection of law and widespread socio-economic discrimination in society at large as well as in Indian workplaces. In the wake of the Nalsa Judgment, the Indian parliament recently enacted the Transgender Persons (Protection of Rights) Act,2019 (the ‘Act’).
‘Transgender’ as defined in the Act, refers to and includes all individuals whose gender does not conform or match with the gender assigned to them at birth and includes trans-man and trans-woman (whether or not they have undergone sex reassignment surgery (‘SRS’) and individuals with socio-cultural identities such as ‘kinner’, ‘hijra’, ‘aravani’ and ‘jogta’.
Drawing a distinction between actions that require immediate implementation such as introducing social welfare schemes and actions that require a long-term approach, such as changing the negative attitude of the general public, the legislature has placed positive obligations on all concerned Stakeholders. ‘Stakeholders’ include the central government, state governments and establishments (as defined under the Companies Act, 2013).
These obligations take the form of guarantees (from Chapter II to Chapter VIII). They include the following.
1. Prohibition of discrimination against Transgender individuals
Discrimination includes denial or discontinuation of access to or enjoyment of, or unfair treatment in:
- educational establishments;
- healthcare services;
- any goods, accommodation, service, facility meant for public use;
- right of movement;
- right to purchase reside, purchase, rent or otherwise occupy property;
- opportunity to stand for or hold public office; and
- government or private establishment in whose care or custody a transgender person is.
2. Recognition of identity
Recognition of transgender individuals’ identity and conferring the right and entitlement to obtain a certificate of identity as proof of recognition from the relevant state authorities.
3. Welfare measures
Formulation and enactment of welfare measures, schemes, programmes for education, social security, healthcare, effective participation in the society and facilitating access to these schemes and welfare measures by appropriate state governments.
4. Rehabilitation and right of residence
Rescue and rehabilitation measures, including right of residence conferred by the relevant state governments.
5. Obligations on Establishments
‘Establishment’ means any body or corporate authority established by or under a central or state act or any body owned, controlled or aided by the government or any company or body corporate or association or body of individuals, firm, cooperative, other society, trust, agency or institution.
Chapter V requires Establishments to ensure compliance with the Act and provide facilities as may be prescribed by the Act from time to time. In matters relating to employment including but not limited to recruitment, promotion and other related issues, Establishment must not discriminate against transgender individuals and must provide for an adequate grievance redressal mechanism to deal with complaints relating to violations of the Act and in the workplace.
6. National Council for Transgender Persons
The constitution and establishment of the National Council for Transgender Persons. The National Council will perform the functions assigned to it under the Act, including but not limited to advising concerned Stakeholders on formulation of policies, programmes, legislations and welfare measures, monitoring and evaluating the impact of policies and programmes designed for ensuring participation of Transgenders and ensuring redressal of grievances of Transgender Persons among others.
7. Offences and penalties
The Act introduces penalties for offences against transgender individuals.
- compels or entices a transgender individual into forced or bonded labour (excluding compulsory government service for public purposes);
- denies a transgender person the right of public passage or use of public places;
- forcefully removes a transgender person from a household, village or other place of residence;
- commits an acts or intends to do an act causing physical, sexual, verbal, emotional or economic harm and/or abuse against a transgender person;
shall be punished with imprisonment which may vary between six months to two years, with a fine.
The Act is not an all-encompassing piece of legislation and is only a preliminary step on the part of the legislature, affording legal recognition to the Third Gender under our legal framework. The extent to which the Stakeholders concerned will take positive steps to facilitate inclusion and attempts to make Transgenders productive members of the society, will be a slow and challenging process. The Act does not lay down consequences of the newly acquired gender status on their rights and entitlements in various spheres and aspects of life and is largely silent on the consequences of non-compliance and accountability for Stakeholders.
Inclusivity in the workplace: comments and key recommendations
Preparing the Indian workspace for an inclusive approach towards transgender individuals is going to be an uphill task, as accommodating societal change of this magnitude has always been a slow process in India.
Improving the status of the transgender community has to be a collective effort and empowering this community in the workplace would go a long way in reducing social stigmas and also improving their economic position. Although the Act only puts an onus and does not place legal requirements on the Stakeholders concerned, in view of the changing dynamic, some of the steps that Establishments and organisations can undertake to create a more equitable and inclusive environment are set out below.
Sensitisation and education
Prior to introducing any change in the system, it will be imperative for organisations to educate workforces around gender inclusivity, assimilation in workplace and greater acceptance for the innate character and personality of transgender individuals in the corporate environment.
Organisations must review and update their existing HR, administrative, recruitment and employee benefit policies and manuals. It would be beneficial to solicit and incorporate suggestions from a person from the transgender community, to ensure that the policies reflect appropriate ways for an organisation to approach the Third Gender.
Sex/gender reassignment surgery (SRS) transition
Undergoing SRS transition is not only a difficult process but also a very traumatic one both physically and psychologically. Organisations must put in place policies that provide transition support, not only in terms of paid leave, but also sensitising the remaining workforce regarding an employee’s transition, providing them with rehabilitation support and counselling.
Analogous to the requirements under the POSH Act (The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013), organisations must put in place adequate 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 for their identity. Trans women are often subject to humiliation and harassment as they are forced to use male washrooms.
Organisations must keep in mind that transgender individuals have been subject to years of discrimination leading to social, economic and skill deficits, and therefore recruitment criteria must be revised accordingly. Organisations must also endeavor to provide training programmes to enhance skills.