Author: Avani Sasindaran
I Year | Symbiosis Law School, Pune

Introduction:

Transgender people in India have faced discrimination in every sphere of life. The government and society have shunned and oppressed their rights. As a result, they move into poverty and resort to begging on the streets to survive, denying them their rights in the workplace.

The 2014 Supreme Court case of the National Legal Services Authority (NALSA) vs Union of India [1] ensured equal rights for transgender persons. The judgment called for equal treatment of this community in all sectors, reservation in employment and educational institutions. Further, it also declared that they have the right to self-identification. In the light of this judgment, the Transgender Persons (Protection of Rights) Act, 2019 [2] was passed in Parliament.

Legal Framework for Employment Rights in The Transgender Persons Act, 2019:

According to a study conducted by the National Human Rights Commission in 2018, 96% of the transgender population in India is forced to take up low-paying work to earn their livelihood (including, but not limited to, begging and sex work) [3]. Society and their families generally outcast them. This leaves them to fend for themselves without economic support or any other assistance. The Act considers this and prohibits the state and private persons from discriminating against transgender people in employment, by prohibiting employment based on gender identity under Section 3 [4]. Further, protection against discrimination in employment is outlined in Section 9 [5] of the Act.

Loopholes of the Transgender Persons Act:

This Act is a commendable step towards securing gender equality because it protects the rights of transgender people. It, however, has several faults.

There is no provision for a penalty or punishment in case of violation of labor rights. This makes the rights given by the Act to the transgender community ineffective.

If a transgender person has been ‘sexually abused’, the offender will face a punishment of up to two years under Section 18 of the Transgender Act [6]. However, the act does not define the term “sexual abuse”. Moreover, there are no guidelines for the prevention of sexual harassment of transgender persons in workplace environments. Offenders may misuse these loopholes to escape scot-free.

The Vishakha guidelines, which were created after the landmark case Vishakha v. the State of Rajasthan [7], lay down guidelines to prevent sexual harassment of women in the workplace. These guidelines must include transgender people as well.

Furthermore, there is no law or provision to prohibit discrimination based on gender identity and sexual orientation in employment in private institutions or non-government bodies. This is based on Article 13 of the Indian Constitution [8] which says that fundamental rights can only be exercised against the state or state bodies.

Suggestions:

Firstly, society at large must understand the hardships and challenges faced by transgender persons in their day-to-day lives. Legal and institutional reforms will work effectively if the people working in such institutions understand these reforms.

Secondly, the Equal Remuneration Act, 1976 [9] must be amended to include people of all genders and ensure that equal pay is given to all persons working in an organization without any discrimination based on gender.

Furthermore, the Transgender Act, 2019 must define some key terms and erase the ambiguity in its provisions. Regressive provisions such as issuing a “gender certificate” from a District Magistrate, must stop. The case NALSA vs Union of India clearly states that transgender persons certainly have the right to self-identification.

Sexual assault and hate crimes against transgender persons, especially, transphobic crimes at the workplace, should have strict punishments. The current penalty for such crimes today stands at a mere 2 years of imprisonment, which is undoubtedly an insufficient deterrent.

Conclusion:

In a Delhi High Court ruling in October 2015, Justice Siddharth Mridul wrote:

“Gender identity and sexual orientation are fundamental to the right of self-determination, dignity, and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals.” [10]

It is these very freedoms that are often denied to the transgender community in our country. There has been a commendable effort by the state in legally recognizing transgender persons and detailing anti-discriminatory laws. Even then, there is an urgent need to amend the act to ensure gender equality in India.

Thus, empowering the transgender community, especially at workplaces, will allow them to be financially independent. It will also enable them to reach their full potential and contribute to society. Joyita Mondal from West Bengal is the first transgender judge in the country [11] and Prithika Yashini, the first Transgender sub-inspector in India [12]; these are inspiring examples of empowerment.

To conclude, there is a long way to go in achieving gender equality in India. The state needs to increase its efforts to empower the transgender community.

Footnotes:

[1] National Legal Services Authority (NALSA) vs. Union of India, AIR 2014 SC 1863 https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/

[2] The Transgender Persons (Protection of Rights) Act, 2019, MINISTRY OF LAW AND JUSTICE (LEGISLATIVE DEPARTMENT), (June 3^rd, 2021, 2:25 PM) URL: http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf

[3] Neeraj Chauhan, Left Alone: Just 2% of trans people stay with parents, THE TIMES OF INDIA, (June 3^rd, 2021, 3:18 PM) URL: https://timesofindia.indiatimes.com/india/left-alone-just-2-of-trans-people-stay-with-parents/articleshow/65380226.cms

[4] Section 5. Application for certificate of identity, INDIA CODE, (June 3^rd, 2021 3:27 PM) URL: https://www.indiacode.nic.in/show-data?actid=AC_CEN_25_35_00007_201940_1579157374013&sectionId=49778&sectionno=5&orderno=5

[5] Section 9. Non-discrimination in employment, INDIA CODE, (June 3^rd, 2021, 3:28 PM) URL: https://www.indiacode.nic.in/show-data?actid=AC_CEN_25_35_00007_201940_1579157374013&sectionId=49782&sectionno=9&orderno=9

[6] Section 18. Offences and penalties, INDIA CODE, (June 3^rd, 2021, 3:31 PM) URL: https://www.indiacode.nic.in/show-data?actid=AC_CEN_25_35_00007_201940_1579157374013&sectionId=49791&sectionno=18&orderno=18

[7] Vishaka vs State of Rajasthan, (1997) 6 SCC 241 https://indiankanoon.org/doc/1031794/

[8] Article 13, Laws inconsistent with or in derogation of the fundamental rights, CONSTITUTION OF INDIA, (June 3^rd, 2021, 3:38 PM) URL: https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2013

[9] The Equal Remuneration Act, 1976, INDIA CODE, (June 3^rd, 2021, 3:44 PM) URL: https://www.indiacode.nic.in/handle/123456789/1494?locale=en

[10] Dhamini Ratnam, Delhi High Court’s warning to intolerant families, MINT, (June 3^rd, 2021, 4:01 PM) URL: https://www.livemint.com/Leisure/1nvsPzIjrtmsuwz1ih6kNM/Delhi-High-Courts-warning-to-intolerant-families.html

[11] Prasanta Mazumdar, Assam gets its first transgender judge, third in country, (June 3^rd, 2021, 4:04 PM) URL: https://www.newindianexpress.com/nation/2018/jul/13/assam-gets-its-first-transgender-judge-third-in-country-1842803.html

[12] Pramod Madhav, Prithika Yashini, India’s first transgender police officer, wins acceptance, INDIA TODAY, (June 3^rd, 2021, 4:06 PM) URL: https://www.indiatoday.in/india/story/prithika-yashini-india-first-transgender-police-officer-tamil-nadu-969389-2017-04-04

Editor: Anusha Jabi