Will An Indian Workplace Ever Be ‘Inclusive’ Towards ‘Transgenders’?

Discrimination is not unknown in India when it comes to inclusion of transgender people in society, especially in terms of employment opportunities. Consistent efforts by activists over the past several years, has resulted in the passing of the landmark order by the Supreme Court, in 2014 in the case of National Legal Services Authority vs. Union of India. The Court emphasised that discrimination and ill-treatment of the transgender community is common in India, particularly in sectors such as education and employment. Consequently, the Court recognised the rights of the third gender to life with dignity, which is enshrined under Article 21 of the Constitution. In an attempt to provide legislative backing to the recommendations enunciated by the National Legal Services Authority of India, the Transgender Persons (Protection of Rights) Bill, 2016 has been drafted, and currently awaits Parliamentary approval to become law.

This article seeks to highlight the key provisions of the Bill and its legal impact with respect to a transgender person's right to life with dignity including employment opportunities.

Employment Related Provisions In The Bill

Key provisions of the Bill with regard to employment opportunities are set out below:

1. Section 3 (b): prohibits the unfair treatment of a transgender person in relation to employment or occupation.
2. Section 3 (c): prohibits the denial of employment and discriminatory termination from the same.
3. Section 10: bars establishments from discriminating against a transgender person in matters related to employment such as recruitment, promotion and other related issues.
4. Section 11: creates an obligation on establishments to comply with the provisions of the legislation and provide necessary facilities to trans persons.
5. Section 12: creates an obligation on every establishment consisting of more than 100 people to appoint a compliance officer who would deal with complaints regarding violations of the Act.
6. Section 15: creates a duty on the appropriate government to formulate welfare schemes and programmes to facilitate and support livelihood for transgender persons including their vocational training and self-employment.
7. Section 17: provides for the formation of a National Council by the Central Government with a representative from the Labour and Employment Department and Department of Legal Affairs, amongst others.
8. Section 19 (d): provides for penalties and punishments in the event any person harms, injures or endangers the life, safety, health, or well-being of a transgender person or tends to do any act which causes abuse of any nature whether physical, sexual, verbal, emotional and/or economic abuse.

Instances wherein a transgender principal in West Bengal had to quit her job because her employer and colleagues refused to cooperate with her and such a person had to write to the President requesting mercy-killing because Air India refused to employ her on account of her gender, reveal the level of discrimination and exclusion faced by the transgender community.

In 2017, 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. They had no remedy but to quit their jobs since their employer had no legal obligation and/or incentive to step in and help them fight against such discrimination.

Interestingly, the Bill in clause 19 (d) provides for protection of a trans woman from sexual or physical abuse and also ensures the protection of the health and safety of a transgender person. 

However, this would require change in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, as the 2013 Act does not cover transgender. It is relevant to mention that the Bill was revised in August 2018 and it now contains a provision whereby crimes against transgender persons are punishable with imprisonment for up to two years, based on the severity of the offence. However, whether such a penalty would have a deterrent effect, is a question that remains unanswered.

Also, it is not clear if a trans woman adopts a child, whether such a person would be entitled to the benefits of the Maternity Benefit Act, 1961. With the pronouncement of the historic judgment by the Supreme Court in Navtej Singh Johar v Union of India, rights with regard to marriage and partnerships have gained greater recognition in India for the third gender. This in turn makes it imperative for the Bill to have provisions whereby benefits under the Maternity Act are extended to transgender (especially trans-women) persons by an employer.

It may be relevant to note that the Draft Personal Data Protection Bill, 2018 has covered transgender status and the information belonging to a transgender under the ambit of sensitive personal data. The passing of the Data Protection Bill into law would mean more stringent compliances for employers with respect to protecting the SPD of transgender people.

Conclusion

Discrimination against transgender people in India with respect to employment opportunities and benefits that are accorded to women employees in India is quite evident as legislation that specifically provides for benefits to a woman at workplace have no reference to transgender.

While there are provisions in the Bill that protect transgender interests by prohibiting discrimination in employment opportunities, the implementation of such provisions is a big challenge.

A robust legal mechanism to safeguard transgender interests is required and huge penalties must be imposed on offenders / violators. Further, relevant amendments under specific legislation such as the Equal Remuneration Act, 1976, and the Maternity Act, 2013, may need to be suitably revised to include a transgender person in their ambit for rigorous implementation of the provisions of the Bill, and to safeguard a transgender person against discrimination in the workplace.

There remains a pressing need to create employment opportunities for transgender people if we are to provide them with an inclusive environment in society. To achieve such an objective, the government can incentivise employers who employ transgender persons.

The Government can take proactive steps to ensure that an employer is complying with such provision by way of mandating an employer to submit quarterly returns that include details pertaining to the number of vacancies available, interviews conducted for them and the number of positions filled, including percentage of transgender employed therein.

In addition, amendments under some key legislation such as Maternity Benefit and Employee State Insurance can be introduced and implemented to include transgender within their purview.

While we have Joyita Mondal from West Bengal becoming the first transgender judge in the country, as well as Tamil Nadu getting its first transgender sub-inspector, these are examples of individual struggles leading to triumph.

The legal regime, as analysed above, leaves much more to be desired. Empowering the transgender community by making workplaces more transgender-inclusive would go a long way to reducing discrimination against them besides giving them an opportunity to become a part of India's economic growth.

This note was authored by Manishi Pathak - Partner in the Employment Team; Abhinav Rastogi - Senior Associate in the General Corporate Practice; and Yashvi Ganeriwal - Associate in the Employment Laws Practice; at the Delhi office of Cyril Amarchand Mangaldas; and was originally published on the Cyril Amarchand Mangaldas blog

The views expressed here are those of the authors and do not necessarily represent the views of BloombergQuint or its editorial team.