Indian Workplace: A Living Hell for the Transgender Community?
“Nature made a mistake, which I have corrected”. -Christine Jorgensen
We call ourselves contemporary beings, who have been constantly been running behind the train of modernization. Who desperately wants to see a change, but not be one? We are in an era where more transgender people are willing to come out and tell the world that ‘this is who we are’. Being trans is as normal as being tall, short, fat, skinny, male, female, dark, or fair. When none of these factors obstructs one’s parade to success then why does being a trans person trash dream to the ground?
Discrimination is not an unknown element in India, it has proficiently made its way through casteism to sexism. Discrimination has been prevalent especially when it comes to the inclusion of transgender people in society, most particularly in terms of employment opportunities. We, as a society have time and again betrayed the transgender community. Their stories of constant misery have been very conveniently erased.
Finally, after consistent efforts by activists over the past several years, in the year 2014, the transgender community found itself a ray of hope through the National Legal Services Authority (NALSA) v. Union of India verdict. The court in this case emphasized that discrimination and ill-treatment of the transgender community is an extremely common factor in India, particularly in sectors such as employment and education. Before this judgment, the transgender persons were not be provided with the basic rights that the Constitution guarantees the rest of its people.
With this verdict, the transgenders were recognized as the third gender and were guaranteed the right to live with dignity, a right enshrined under Article 21 of the Indian Constitution. Ironically, per the language used in Article 21, the right to live with dignity is a right made available based on the very virtue of being a human. But we as a society to keep up with the so-called societal norms refused the transgender community from their right to live with dignity.
The right to life under its ambit includes the right to livelihood and it is emphasized by the court time and again that, to deny someone of their right to livelihood is the easiest way to deny someone of their right to life, has a right to life cannot be enjoyed to the fullest without proper means of livelihood. The NLSA judgment also highlighted the need for provision for equal opportunities in sectors such as employment and education. Providing the transgender community with education and employment will not only uplift them economically but will also aid them to break the social stigmas attached to being transgender.
In an attempt to provide legislative backing to the NALS judgment the Transgender Persons (Protection of Rights) Bill, 2016 was drafted. At last, with this bill, the Transgender community began to feel the light at the end of the tunnel.
KEY PROVISIONS CONCERNING EMPLOYMENT IN THE BILL
Section 3 (b) prohibits the unfair treatment of a transgender person concerning provision employment or occupation opportunities.
Section 3 (c) prohibits the denial of employment and discriminatory termination based on sexual orientation.
Section 10 prohibits establishments and employers from discriminating against a transgender person in matters related to employment such as recruitment, promotion, and other such issues.
Section 11 presses an obligation on the establishments for compliance with the provisions of the legislation and also to provide all necessary facilities to trans people.
Section 12 further, creates an obligation on every establishment consisting of more than 100 employees to appoint a compliance officer who would deal with complaints regarding violations of the Act.
Section 15 creates a duty on the appropriate government to formulate welfare schemes and programs in the interest of the trans community.
Section 19 (d): provides for penalties and punishments to people who harm the interest of transgender people or the ones who violate any of the provisions mentioned in the Bill. [i]
While all these provisions and the NLSA judgment in itself seem extremely progressive and beneficial in the interest of the trans community, they have failed to bring desirable change in the society. These many years down the lane there still exist instances that reveal the level of discrimination and exclusion faced by the transgender community at places of work. In the state of West Bengal, a transgender principal was forced to quit her job because her employer and co-workers refused to cooperate with her and a trans person had to write to the President requesting mercy-killing as Air India refused to employ her based on her sexual orientation.[ii]
In 2017, Kerala’s Kochi Metro Rail Limited employed 23 transgender persons in different areas of work, while eight out of them quit their jobs within the very first month due to refusal by several landlords to provide the accommodation. They had no alternative but to quit their jobs since their employer had no legal obligation to step in and help them fight against such discrimination.[iii]
According to the study conducted by National Human Rights Commission, about 92 percent of transgender people in India are deprived of the right to participate in any form of economic activity in the country, with even the qualified ones refused provision of jobs. [iv]This is clear evidence of societal dejection towards the transgender community and the failure of the state in protecting the interest of the Transgenders.
But in the recent, the government under PM Modi’s rule has dropped a plan to recognize transgender persons as ‘third gender’ in the country’s legal framework related to labor and employment and the NDA government has also guaranteed that essential codes of labor such as social security code, employee benefit code and wage code would be altered to include the third gender as well.
The government’s duty does not end with the mere provision of employment opportunity but further extends to the provision of the appropriate working atmosphere to the trans people as well, which is nothing but inclusiveness at the workplace. The primary step would be to improve the workplace atmosphere, would be of the co-workers to have an inclusive approach towards Transgenders, this is going to be an uphill task, as accommodating societal change of this immensity has always been an extremely slow process in India.
To make it welcoming for the trans persons at the place of work, the following steps are could be considered:
Organizations must review, amend, and update their existing HR, administrative, recruitment, and employee benefit policies and manuals in a manner in which it would benefit the third gender.
It must be made mandatory that, all the organizations must put in place adequate grievance redressal mechanisms that would mainly deal with the harassment complaints while keeping the identity of the complainant unknown.
Gender-neutral washrooms should be set up to save the transgender employees from additional embarrassment and humiliation.
Recruitment criteria should be revised keeping in mind the socio-cultural and economic background of transgender people.[v]
Now, take a look at the brighter side. Through, not in an extremely efficient or desirable manner. We cannot deny the fact that India is slowly opening up towards the inclusion of transgender into society. In recent times a start-up in the State of Tamil Nadu was set put by a group of third gender people. There are also cafes and restaurants which are mainly controlled and managed by the transgender community. These are evident signs of progress in the favour of the LGBTQ community.
Making this progress more evident is the judgment passed in the case of Navtej Singh Johar v. Union of India, the issue that came up before the Supreme Court was, whether trans persons are to be entitled to benefits under the Maternity Benefit Act, 1961? The court ruled in the favour of the transgender community and held that the provisions of the Maternity Act are to be amended in a manner wherein the transgender persons are also included under its ambit.
To make this progress more efficient and to economically uplift the transgender community certain proactive steps such as bringing about amendments under key legislation of labor code such as Maternity Benefit and Employee State Insurance to include transgender within their purview. The appropriate authority should make it mandatory for the employers to submit quarterly records with data on the number of vacancies, interviews held, number of vacancies filled, and the number of trans persons employed in that period. By implementing more such progress measures the Indian transgender can soon participate in the economic sectors of the nation like any other person.
Discrimination against transgender people in India concerning employment opportunities and benefits is quite evident in a phenomenon. A robust legal mechanism to safeguard the interests of the transgenders is the need of the hour. Huge penalties are to be imposed on organizations and employers who discriminated based on sex/gender orientation.
The constant efforts put in by the activists and renowned transgender persons like Gauri Sawant, Laxmi Narayana Tripathi, etc, the result of their fight and effort is now blooming in the form of budding transgender personalities like Joyita Mondal from West Bengal who is the first transgender judge in the country, Shabi Giri a successful Indian Naval officer, Sathyasri Sharmila the first registered transgender lawyers and many more to join the list in the upcoming years. These are the examples of individual struggles leading to triumph.
[i] Divya Chopra, Transgenders and employment in India: Opening doors of opportunities for Transgenders, India Today, January 27, 2020, https://www.indiatoday.in/education-today/featurephilia/story/transgenders-and-employment-in-india-opening-doors-of-opportunities-for-transgenders-1640493-2020-01-27.
[ii] Anonymous Author, Denied Job by Airline, Transgender Seeks "Mercy Killing", NDTV, February 13, 2018, https://www.ndtv.com/india-news/denied-job-by-air-india-transgender-seeks-mercy-killing-in-letter-to-president-ram-nath-kovind-1812317.
[iii] Somyak Ghoshal, Indian Companies are Hiring Transgenders people, but it’s a rocky road for them, Huffpost, August 3, 2017, https://www.huffingtonpost.in/2017/07/19/the-bitter-reality-of-being-a-transgender-employee-in-india_a_23035751/.
[iv] Neeraj Chauhan, About 92% of Transgenders are Deprived of their Rights, Refused Jobs, just 2% stay with Parents, IT News, August 13, 2018, https://www.indiatimes.com/news/india/about-92-of-transgenders-are-deprived-of-their-rights-refused-jobs-just-2-stay-with-parents-351131.html.
[v] Alok Tewari, India: Transgender Rights, the ‘Third Gender' And Transforming The Workplace In India, Mandaq, March 20,2020, https://www.mondaq.com/india/discrimination-disability-sexual-harassment/905918/transgender-rights-the-third-gender39-and-transforming-the-workplace-in-india,. ABOUT THE AUTHOR
This blog has been authored by Vibha Vijaykumar, who is a 4th Year B.A., LL.B. student at CMR University, School of Legal Studies, Bengaluru.
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