Equal Opportunity for Transgender

Sheena Ogra , Anirudh Agarwal

September 7, 2023

Equal Opportunity for Transgender Persons: A Policy Mandate for all Establishments

To provide equal opportunity and adequate accessibility to transgender persons in different domains such as educational institutions, healthcare services and employment opportunities in both public and private sectors, employers need to actively participate and revamp the recruitment practices and human resource policies. Further, to warrant that the employment standards in India are coherent with the international instruments to which India is a party, the Government of India notified “The Transgender Persons (Protection of Rights) Act, 2019” (“Transgender Persons Act”) to not only provide for protection of rights of transgender persons and their welfare but also support transgender people at the workplace.

In this article, we will delve into the requirement of framing an equal opportunity policy by establishments and formulating a grievance redressal mechanism to adequately deal with the complaints to ensure that no discrimination is faced by any transgender person in any matter.

Prior to the enactment of the Transgender Persons Act: Indian laws were exclusively binary in nature, identifying only male and female genders. In India, the legal system's persistent denial of acknowledging the “third gender/transgender identity” has led to the deprivation of many of the rights and privileges which other persons enjoy as citizens of this country. Transgender persons are vehemently excluded from social and cultural participation thereby restricting their access to education, health care and public places thus, violating the golden spirit of the equality scheme under Articles 14, 15, 16, 19, 21 of the Constitution of India.

However, the Apex Court in its judgement of National Legal Services Authority Vs. Union of India (UOI) and Ors[1] (“NALSA Judgement”) dated April 15, 2014, shattered the existing underlying norms of gender identification resulting in recognizing transgenders as a ‘third gender’ and further paved the way for the enactment of the Transgender Persons Act. In this judgement, the Apex Court observed that “The Transgenders are also citizens of this country. They also have equal rights to achieve their full potential as human beings. For this purpose, not only they are entitled to proper education, social assimilation, access to public and other places but employment opportunities as well”. Furthermore, the Apex Court added that “There seems to be no reason why a transgender must be denied of basic human rights which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression, Right to Education and Empowerment, Right against violence, Right against Exploitation and Right against Discrimination. The Constitution has fulfilled its duty of providing rights to transgenders. Now it's time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life for transgender people. All this can be achieved if the beginning is made with the recognition that Transgender as third gender”.

Applicability of the Transgender Persons Act: All establishments (including private companies) created by or pursuant to a Central Act, a State Act, or any corporation, body corporate, association, or body of individuals, firm, cooperative, or other society, association, trust, agency, or institution shall be subject to the Transgender Persons Act.

Under the Transgender Persons Act, a transgender person means “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), a person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta”[2].

Drafting of the Equal Opportunity Policy: The roots to frame an equal opportunity policy can be traced down under Rule 12 (2) of the Transgender Persons (Protection of Rights) Rules, 2020 (“Transgender Rules”) which put a mandate on all the establishments (including public and private) to publish an equal opportunity policy for transgender persons. In addition to this, as per Rule 12 (3) of the Transgender Rules, every establishment shall display the equal opportunity policy, including the details of the complaints officer, preferably on their website, failing which, at conspicuous places of the establishment premises. Furthermore, the equal opportunity policy of an establishment shall contain details including but not limited to maintaining confidentiality of the gender identity of the employees, amenities and facilities to be provided by the employer to the transgender employees in order to carry out their duties effectively at the workplace.

The wording of the policy shall be in consonance with the provisions of the Transgender Persons Act and its subsequent rules to not only provide transparency and accountability but also apprise the employees about the potential workplace conflicts and what constitutes discrimination, harassment, and victimization of transgender persons. The framework of the policy must outline an establishment’s commitment towards fair treatment of all employees, provide an inclusive workplace and work culture and ensure that the workforce is representative of all sections of the society wherein, all the employees are treated with respect and dignity.

Recently, the Apex Court in its order dated September 08, 2022, pertaining to the judgement Shanavi Ponnusamy Vs. Ministry of Civil Aviation & Anr[3], comprising of Justices D.Y. Chandrachud and Hima Kohli, emphasized the issue of transgender persons facing multiple forms of oppression, social exclusion and discrimination in accessing equal employment opportunities, especially in the formal sector, due to the operation of gender stereotypes. In light of the provisions of the Transgender Persons Act and NALSA Judgement, the Apex Court stated that “The provisions of the 2019 Act need to be implemented in letter and spirit by formulating appropriate policies. The Union Government must take the lead in this behalf and provide clear guidance and enforceable standards to all other entities, including those of the Union Government, State Governments and establishments governed by the 2019 Act”.

It is interesting to note that under the Transgender Persons Act, the penalty has been prescribed for crimes being committed against transgender persons. However, the Transgender Persons Act is silent on the aspect of penalty being prescribed for non-formulation of the equal opportunity policy by the establishments despite, it being a mandate under the law which was reinforced by the Apex Court in its order pertaining to the judgement Shanavi Ponnusamy Vs. Ministry of Civil Aviation & Anr[4].

Grievance Redressal Mechanism: As per Section 11 of the Transgender Persons Act, every establishment shall designate a person to be a complaint officer to deal with the complaints relating to violation of the provisions stipulated under the Transgender Persons Act. In addition to this, as per Rule 13 of the Transgender Rules, the complaints filed by the aggrieved shall be enquired into by the complaint officer within 15 (fifteen) days from the date of receipt of such complaints. Furthermore, the head of the establishment shall take action on the enquiry report within 15 (fifteen) days from the date of submission of the report by the complaints office and accordingly take necessary action in all cases to ensure that the grievances are resolved within a span of 30 (thirty) days from the date such grievance has been reported to the complaint officer.

Conclusion: With the exponential growth of the industrial sector in India, job opportunities in the corporate sector have increased manifold. However, non-recognition of the ‘third gender’ in the eyes of the law has led to systematic failure of the constitutional guarantee of equality before the law and equal protection of laws leading to pervasive socio-economic discrimination in both the general population and the workplace. Enactment of the Transgender Persons Act and putting a mandate for all establishments to frame an equal opportunity policy embarks a watershed in the evolution of the rights of transgender persons. Such progressive steps taken by the Government of India will not only promote equal employment opportunity for the transgender persons in the private sector but also ensure that the problems faced by the transgender community as a whole are resolved at the earliest thereby, creating a more progressive and inclusive society.

[1] AIR 2014 SC 1863

[2] The Transgender Persons (Protection of Rights) Act, 2019

[3] MANU/SCOR/99343/2022

[4] MANU/SCOR/99343/2022

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