Emerging Voices: Recognizing Transgender Rights in India, by Kosturi Ghosh, Swarnima and Ajay Patri, Trilegal

Until 2014, there was little legal protection afforded to the transgender community against discrimination, harassment or abuse in India. They were denied their basic fundamental rights, excluded from participating in social, economic and political institutions, and faced widespread discrimination in the country. However, recently the Supreme Court of India recognized transgender people as the ‘third gender’. The Government has also introduced legal reforms that have brought a glimmer of hope for this long neglected community. In this article, we discuss the important reforms in this area, with a specific focus on rights of transgender employees at work, and some practices followed by companies to build inclusive workplaces in India.Trilegal Logo

The First Steps: The Supreme Court and Bill on Transgender Rights

In 2014, in a landmark judgment, the Supreme Court ruled that transgender persons have a right to be recognized either as the ‘third gender’, or according to their self-identified gender, irrespective of the gender they were born with or assigned to them at birth. The Court held that non-recognition of the gender identity of the transgender community violates their fundamental rights to life, equality and freedom of expression. It directed the Government to implement various measures granting legal recognition, including them as integral members of society and extending reservations in Government educational institutions and public appointments.

Kosturi Ghosh, Partner, Trilegal
Kosturi Ghosh, Partner, Trilegal

Following the Supreme Court decision, the Rights of Transgender Persons Bill, 2014 was introduced in the Upper House of Parliament by a private member of Parliament, and passed in April 2015. The Bill recognizes the rights of transgender persons to equality, non-discrimination and protection from abuse, violence and exploitation. It also proposes various social welfare measures, health measures (such as provision of free sexual reassignment surgeries), and steps to raise awareness on the rights of transgender persons.

The Central Government has expressed reservations about the Bill, claiming that it will face practical difficulties in implementation. It has also raised the possibility of introducing a separate legislation of its own. Given the lack of political traction in trying to have it passed by the Lower House of Parliament, as necessary for it to become law, it is possible that the final form of any legislation on the subject of transgender rights could be very different from what is proposed under the Bill.

Transgender Rights in the Workplace

Through the Bill and other proposed amendments to labour laws in India, the Government has sought to introduce legal reforms at the workplace. These reforms relate to:

  • The Bill:
    • Formulation of schemes by the Government to facilitate employment of transgender persons, especially for vocational training and self-employment.
    • Non-discrimination against transgender persons in any matter relating to employment, including recruitment, promotion, etc.
    • Introduction of programmes for providing pensions and unemployment allowance to transgender persons.
    • Provision of 2% reservation for transgender persons in Government posts. In addition, the Government is required to promulgate schemes to incentivize employers in the private sector to hire at least 2% of their workforce from the transgender community.
    • Setting up of a Special Employment Exchange for transgender persons to assist them with securing employment.
    • Conducting, sponsoring or encouraging orientation and sensitization programmes on rights of transgender persons for employers, administrators and co-workers.
  • Recognizing the Third Gender: A number of Government forms have been updated to include a third category for transgender persons (apart from the traditional male and female categories) in official documents, such as passports, voter IDs, social security forms, etc.
  • Labour Code on Wages Bill: This bill also seeks to prohibit discrimination against transgender persons in matter of wages paid for the same or similar work.
  • Amendment to the Factories Act: The draft amendment includes a clause for provision of equal right to work opportunities for transgender persons in factories.

Initiatives by State Governments

Swarnima, Counsel, Trilegal
Swarnima, Counsel, Trilegal

While the Central Government’s proposed amendments are yet to be implemented, some State Governments have taken the initiative for promotion of transgender rights. Transgender Welfare Boards have been set up in four States out of 29, in Tamil Nadu, Maharashtra, Kerala and West Bengal, to address the social protection needs of the transgender community by implementing schemes on housing, health, education, and employment or extending financial assistance to the transgender community through educational loans, housing loans, etc. However, these Welfare Boards do not appear to be very active, primarily because of a lack of adequate funding from the respective State governments. This adversely affects their ability to carry out their functions.

Private Initiatives

Given the current status of the law towards transgender persons, many Indian companies, especially multi-nationals, have taken steps to implement policies aimed at addressing the issues faced by transgender persons at the workplace. These policies include:

  • Setting up employee networks to create awareness on LGBT issues;
  • Conducting reverse mentoring programs with transgender employees, sensitizing senior managers on issues faced by them in the workplace;
  • Conducting diversity and inclusion training for new hires and senior managers, to sensitize the workforce;
  • Equal opportunities in areas of recruitment, promotion, etc.;
  • Grievance redressal mechanisms where employees can raise issues related to harassment, discrimination or abuse at the workplace.

Another area in which a few private companies go far beyond the law is on the provision of benefits. It is common for companies to offer benefits, such as, relocation benefits, insurance coverage and adoption leave to cover spouses of their employees. We have, however, seen only a few companies extend such benefits to cover the same-sex partners of their employees, regardless of the employee’s marital status, sexual orientation, gender expression or gender identity.

Ajay Patri, Associate, Trilegal
Ajay Patri, Associate, Trilegal

Conclusion

While the proposed reforms are important steps in the right direction, the law is still in its infancy. A number of loopholes still need to be plugged. For instance, India’s law on sexual harassment at the workplace only provides protection to female employees. Given that sexual harassment is a key concern for the transgender community, there is a pressing need to amend the existing law. Further, homosexuality is still considered a criminal offence in India, inducing a potential jail term of ten years. Hence, some transgender persons may still be vulnerable to discrimination and harassment on account of their sexual orientation. The transgender community’s representation in the formal sector of the economy is also negligible, depriving them of the benefits and protections afforded by employment legislations which primarily target the formal sector. It is crucial that the literacy rate amongst the transgender community is improved to facilitate their transition to the formal workforce. In this regard, some higher educational institutions, for instance, Bangalore University, have earmarked reservations for members of the transgender community in their post-graduate courses. However, with literacy levels amongst the transgender community being extremely poor even at the grassroots level, there are very few takers for the seats offered.

With regard to the private initiatives, while companies have made commendable efforts to provide additional protection to the transgender community, including the creation of infrastructural facilities like separate restrooms for members of the third gender, most of the company policies are still blanket policies aimed at dealing with issues faced by the LGBT community as a whole. Few Indian companies have nuanced policies which deal with the specific issues faced by transgender persons at the workplace, such as guidelines for managing gender transition during employment.

The issues faced by the transgender community are compounded by the very real fear of a backlash from the wider society if one were to identify as a transgender. For instance, an individual would be reluctant to claim a reserved seat in a university because of the fear of being ostracised from society. Thus, any hope for the progress of the transgender community lies in increasing the access to education for the community as a whole, together with wider sensitisation of society to ensure that once the transgender community enters the mainstream workplace, they are accepted as equals.

This ideal of equality is of particular relevance in India, which is an incredibly diverse country, where many urban workplaces are a melting pot of employees from different regions, with many different languages, backgrounds and cultural traditions. It is inevitable that people with conservative views will be a part of the workplace, driven by local prejudices and cultural biases. In this situation, the biggest challenge for employers is in raising awareness, changing perceptions and obtaining the support of the general employee population, without which creating a truly inclusive workforce is likely to remain a dream, rather than a reality.

Connect with Kosturi Ghosh.

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