When it comes to transgender rights, our country is still eons behind when we compare it with other nations like the US and Brazil who have tapped into into Pink/LGBTQIA tourism in particular which has been a major contributor to their economic well-being. The LGBT Foundation in Hong Kong even stated that if the entire LGBT community worldwide, were to be consolidated into a country, it would be the fourth largest economy GDP wise which implies that there is a great potential of human resources which is being left untouched due to lack of statutory rights and policies for the protection of this community in the workplace.
The transgender community remains to be one of the most unheard sections of society which has hardly ever known the privilege of being treated with equality and sufficient dignity. One of the most ignored communities remains to be the transgender community which till date faces open discrimination despite several laws in place for their protection. The mind-set of a majority of the population remains stagnant despite being educated and opportunities for this ignored section remains to be little. Discrimination is not unknown in to this community, especially when it comes to inclusivity. Further the inclusion of transgender people in society, especially in terms of employment opportunities is a whole different aspect in itself.
However, consistent and deliberate efforts by several activists over the past many years, has resulted in the passing of the landmark order by the Hon’ble Supreme Court, in 2014, in case of National Legal Services Authority vs. Union of India. In this case, it was observed by the apex court that blatant abuse, discrimination and ill-treatment of the transgender community is common in India, especially within the education and employment sectors. Due to this very reason, the Court recognised the rights of the third gender to life with dignity, which is provided under Article 21(1) of the Constitution of India. Furthermore, in order to provide substantial legislative backing to the recommendations enunciated under the National Legal Services Authority of India, the Transgender Persons (Protection of Rights) Bill, 2016 was drafted in order to provide much needed recognition to this sector which has strived for equality and dignity for years in India.
Certain important provisions given under this Bill for the protection of the third gender, particularly in a corporate setting are given below:
Even though the law provides for several safeguards, as mentioned above, for protecting the life and livelihood of transgender individuals in India, there is still a long way ahead for India to accomplish the level of equality which other nations have successfully achieved for these individuals. The transgender community continues to be secretly, if not openly, discriminated against by a number of large organizations and the ratio of the third gender person to a person belonging to either male or female gender is still startlingly low. This is due to the prevalence of discrimination and prejudice amongst the law makers and the law keepers themselves along with large scale corruption when it comes to taking of any action against any wrong committed against such a person. The legislation’s hands are tied while the rich and corrupt rule and dictate over the composition of the workplace. Thus, while encouraging blatant prejudice against this community, a large portion of human resource goes to waste and remains endangered in our country. The lack of education and normalisation of the third gender needs to begin from an early stage in school itself.
Since the education policy rarely looks towards tolerant laws for endangered communities in India, the rights of transgender individuals remains under threat along with several other minority sections which are still not given their share of rights in the Indian workplace. While in theory, all the laws in place seem extremely progressive and beneficial to the employability of transgender people, in the absence of any provision for affirmative action in encouraging transgender employment, all such efforts are rendered useless till date.
There have been several examples of situations where a transgender person has had to not only face abuse and discrimination at the hands of the people in his organization but instances of a transgender Principal in West Bengal having to quit her job because her employer and colleagues refused to cooperate with her throw light on the much prevalent abuse of this section of society. This same person resorted to writing to the President of India, requesting mercy-killing because Air India refused to employ her on account of her gender. This form of open abuse wherein an individual would much rather take his or her own life than live an existence so harrowed and abused by society reveals the level of discrimination and exclusion faced by the transgender community as a whole.
Another such example of intolerance towards the third gender can be seen in the case of 2017 wherein Kerala’s Kochi Metro Rail Limited employed 23 transgender persons, while eight out of them quit their jobs within a month due to refusal by several landlords to give them accommodation. These individuals had no other option but to vacate their positions as prejudice and discrimination, if not at the workplace, was very much prevalent all over the society and little was done to aggrieve them of their grievance. They had no remedy but to quit their jobs since their employer had no legal obligation or incentive to step in and help them fight against such discrimination and in all possibility, the employer could not have been bothered to get embroiled in cases of injustice to the third party.
In the above mentioned sections, clause 19 (d) provides for the protection of a transgender woman from sexual or physical abuse and also ensures the protection of the health and safety of a transgender person. However, this would also require a change in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act), since the 2013 Act does not cover the transgender community within its provisions which is appalling it itself, since the act represents and provides for minority rights (women) and safeguards their position at the workplace. The law for the transgender community has been revised in 2018 and it now comprises of a provision whereby crimes against transgender persons are punishable with imprisonment for up to two years, based on the severity of the offence. However, the effect of the said provision and how far it gets implemented is what we have to analyse since most of the crimes against this community go unreported and unaccounted for.
Till date, there is no clear provision for any maternity benefits for the third gender community within a corporate set up. It is still unclear as to what happens if a trans woman adopts a child. IF this person would be entitled to the benefits of the Maternity Benefit Act, 1961 (Maternity Act) or not is highly questionable since no mention of the transgender community within any minority laws have been seen yet. With the pronouncement of the historic judgment by the Supreme Court in Navtej Singh Johar v Union of India, the rights with regards to marriage and partnerships have gained a greater recognition in India for the third gender. This in turn makes it imperative for the law to have provisions whereby benefits under the Maternity Act are extended to transgender persons by an employer. Needless to say, since transgender men could also be subjected to sexual harassment or may have to deal with the same issue in the case of adopting a child, it therefore needs to be seen if such persons shall be extended certain benefits through modification of the current laws or through the introduction of new laws and provisions.
The blatant discrimination against the transgender community is clearly not uncommon in work spaces. This community remains to be one of the most highly abused sections of society despite several attempts by the law makers to provide legal remedies for safeguarding their existence. The open discrimination of this community continues on, despite several laws in place. The very same laws which provide equality of opportunity to other minority sections such as women in the workplace, fail to regard the transgender community as an important part of the ignored sections yet. While there are provisions in the law which protect transgender interests by prohibiting discrimination in employment opportunities, the implementation of such provisions is still up for debate, particularly in the remote corners of the country where such inclusive education is still not provided. A well-equipped system which safeguards transgender interests is required along with appropriate penalties which must be imposed on offenders and violators for not adhering by these provisions. Furthermore, relevant amendments under the specific legislations such as the Equal Remuneration Act, 1976 and the Maternity Act, 2013 are required in order to include the qualms of the transgender community within its ambit as well.