India: Will 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 Hon'ble Supreme Court, in 2014 in 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 211 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 (the Bill) 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 transpersons.
  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.

While all these provisions seem extremely progressive and beneficial to the employability of transgender people, in the absence of any provision for affirmative action in encouraging transgender employment, the Bill if enacted, may not bring much desired change.

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 (2013 Act), 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 (Maternity Act). With the pronouncement of the historic judgment by the Supreme Court in Navtej Singh Johar v Union of India2, 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.

Needless to say, since trans 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 therefore needs to be seen if such persons will be extended certain benefits through modification of current laws or introduction of new provisions / law.

It may be relevant to note that the Draft Personal Data Protection Bill, 2018 (Data Protection Bill) has covered transgender status and the information belonging to a transgender under the ambit of sensitive personal data (SPD).3 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.

Footnotes

[1] Right to Life

[2] (2018) 1 SCC 791

[3] Section 3 (35) (ix), Draft Personal Data Protection Bill, 2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions