Despite the changes to Section 377 that now recognizes homosexuality in India the rights of the LGBTQ community are still underrepresented, especially in the workplace. There is ambiguity regarding their workplace benefits and the implementation of the Transgender Persons (Protection of Rights) Act, 2019, is insufficient and improper.
Fri Jul 22 2022 | Business Law | Comments (0)
When it comes to transgender rights, our country is still eons behind the likes of US and Brazil, who have tapped 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 in terms of GDP,which implies that there is a great potential of untapped human resources due to lack of statutory rights and policies for the protection of this community in the workplace.
The transgender community remains one of the most unheard sections of society, which has hardly ever known the privilege of being treated with equality and sufficient dignity. It is perhaps the most ignored and discriminated communities even todat, despite the emergence of several laws for their protection.. The mind-set of a majority of the population remains conservative despite being educated and opportunities for this ignored section remains scarce . Discrimination is rampant in this community, especially when it comes to inclusivity. Further, the inclusion of transgender people in society, especially in terms of employment opportunities, is an entirely different debate altogether.
However, consistent and deliberate efforts by several activists over many years, has resulted in the passing of the landmark order by the Hon’ble Supreme Court, in 2014, in the 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 section, 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. 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 the male or female gender is still startlingly low. This is due to the prevalence of discrimination and prejudice amongst lawmakers and lawkeepers themselves, along with large scale corruption when it comes to taking any action against any wrong committed against such a person. The legislations’ 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 untapped in India. The lack of education and normalisation of the third gender needs to begin from an early stage - perhaps in school itself.
Since the education policy rarely looks towards tolerant laws for marginalised 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, given the absence of any provision for affirmative action in encouraging transgender employment, all such efforts are rendered useless.
There are several instances of abuse and discrimination of transgender persons in the workplace. One such example is that of a Principal, who was a transgender person, in West Bengal, whose colleagues refused to cooperate and work with the said person. The person was forcd to quit the job due to this and the incident sheds some light on the prevalent problems of transgender persons. 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 to take their own life rather than living 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 was seen in a 2017 case, wherein Kerala’s Kochi Metro Rail Limited employed 23 transgender persons, and eight out of them quit their jobs within a month duelandlord’s refusing accommodation to these persons. . These individuals had no option but to vacate their positions as prejudice and discrimination, though not at the workplace, was very prevalent outside their workplace. and little was done alleviate their grievance. They had no remedy but to quit their jobs since their employer had no legal obligation or incentive interfere and help them fight against such discrimination. In the aforementioned 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 was 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 its implementation is what needs to be monitored, 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. Whether this person would be entitled to the benefits of the Maternity Benefit Act, 1961 (Maternity Act) or not is ambiguous, since no mention of the transgender community within any minority laws have been made yet. With the pronouncement of the historic judgment by the Supreme Court in Navtej Singh Johar v Union of India[2], 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 must be clarified 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 the workplace. This community remains to be one of the most highly abused sections of society despite several attempts by lawmakers to provide legal remedies for safeguarding their existence. The open discrimination of this community continues , 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 acknowledge the transgender community as an important part of the minority framework. While there are provisions in the law which protect transgender interests by prohibiting discrimination in employment opportunities, the implementation of such provisions is poor, 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 to 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 reservations of the transgender community within its ambit as well.
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