Introduction
Transgender community is one of the most marginalised communities in the country since they do not fit into the “general” categories of the gender of male or female. A study by the National Human Rights Commission India on the human rights of transgenders(1) revealed that 99% of people belonging to the transgender community face different kinds of discrimination, social exclusion, and prejudice. Such discrimination can be seen in unemployment, lack of education facilities, and lack of medical facilities, among others.
The Supreme Court in the case of National Legal Services Authority (NALSA) v. Union of India(2), addressed the discrimination and atrocities faced by the people of the transgender community and directed the government to treat them as the third gender for the purpose of safeguarding their fundamental rights guaranteed under the Constitution and to take adequate steps for their welfare. The court opined that self-determination of gender is an integral part of personal autonomy & self-expression and it is protected under Article 21 of the Constitution.
Following the recommendation by the Supreme Court, the legislature passed the Transgender Persons (Protection of Rights) Act, 2019 to recognise the identity of transgender persons and prohibit discrimination against them. By enacting this Act, the country has taken a step forward in granting and protecting much-deserved identity and rights to transgender persons. The Act also empowered the government to make rules for better implementation of provisions of Act(3), hence, the Transgender Persons (Protection of Rights) Rules, 2020 (the Rules) was brought in.
The Act calls for providing transgenders with equal opportunities and prohibiting discrimination in the fields of education, employment, healthcare, holding or disposing of property, holding public or private office, and access to and use of public services and benefits. The Act also envisages a set of compliances for all establishments including private employers.
Key Definitions
In the NALSA judgment, the Supreme Court defined transgender as an umbrella term to include persons whose gender identity, gender expression, or behavior does not conform to their biological sex. The said definition extends to persons who do not identify with their sex assigned at birth, which includes hijras/eunuchs.
Under the Act, ‘transgender person’ is defined under Section 2(k) as a person whose gender does not match the gender assigned to that person at birth, including trans-man or trans-woman, person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
The Act imposes certain duties and liabilities on all government establishments and private companies to protect the rights of people from the transgender community. Under Section 2(b) of the Act, the establishment includes any body or authority established under the Central or State Act, or owned or controlled by the government, or any government company. The definition also covers private entities, which includes any company or body corporate or association or body of individuals, firms, cooperative or other society, association, trust, agency, or institution.
Compliance Requirements for Corporates
The 2019 Act read with its corresponding Rules of 2020 establishes certain compliance requirements for all the establishments defined under Section 2(b) of the Act.
1. Prohibition of discrimination
i. Section 3 of the Act prohibits discrimination against transgender people by any person or establishment. Transgenders cannot be subjected to unfair treatment in terms of employment or occupation, healthcare services, access to public facilities, and other benefits. The act further reinforces their right to movement, right to property, and holding of public or private offices.
ii. Under Section 9, establishments are obligated to not discriminate against transgender persons in employment matters with regard to recruitment, promotion, and other related issues.
iii. Section 10 of the Act states that the establishments have the duty to ensure compliance with provisions under the act and to provide all the necessary facilities as prescribed in the act.
2. Equal opportunity in employment
i. The 2020 Rules provide that every establishment should implement effective measures to ensure a safe working environment, where transgender persons are not discriminated against in matters related to employment. Equal opportunity should be given to them in terms of infrastructure adjustments, recruitment, employment benefits, promotion, and other related issues.
ii. Equal Opportunity Policy- Rule 12 further states every establishment should publish an equal opportunity policy for transgender persons and display it at a conspicuous place in their workspace & their website for everyone’s access. The policy should also contain provisions related to-
- complaint officer;
- infrastructural facilities such as unisex toilets, measures put in for safety and security like transportation & guards, and amenities like hygiene products to be provided;
- applicability of all rules and regulations of the company regarding service conditions of employees;
- confidentiality principle to keep the gender identity confidential, if the transgender person wishes so;
- procedure for registering complaints.
3. Grievance redressal mechanism
i. Section 11 requires the establishments to set up a grievance redressal mechanism by designating a person to deal with complaints of violation of provisions of the act. Such a designated person will be the complaint officer.
ii. Rule 13 states that appropriate government is required to ensure that every establishment has a designated complaint officer within 30 days from enforcement of the Rules.
iii. Rule 13(2) requires the complaint officer to inquire into the complaints within 15 days of receiving them.
iv. The complaint officer is required to submit an inquiry report and under Rule 13(3) the head of the establishment is obligated to take action within 15 days of the submission of the report. They are also required to take immediate action in cases where action has not been taken within the prescribed time limit.
Punishment for non-compliance
The Act under Section 18 prescribes the penalties to be imposed in case of contravention of provisions of the Act. The punishment imposed will be imprisonment of up to 2 years but not less than 6 months and a fine, if someone
(a) compels or entices a transgender person to indulge in the act of forced or bonded labor;
(b) denies a transgender person the right of passage to a public place;
(c) forces a transgender person to leave the household, village or other places of residence; and
(d) harms or endangers the life, safety, health or well-being (mental or physical), of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse.
CONCLUSION
The enactment of the Transgender Persons (Protection of Rights) Act, 2019 and Rules was a much-needed step to take active responsibility in recognising the rights of transgender persons and eliminate workplace discrimination against them. However, the way the act has been drafted, it might not achieve its objective as it lacks accountability.
The transgender community still struggles with being accepted for who they are in society and therefore their inclusion in getting equal employment opportunity is still a goal. The act will only achieve its objectives when the employers realise their duties and obligation towards their transgender employees. They need to acknowledge that an environment that is pro-diversity and inclusion not only will uplift the socially and economically marginalised community but will also provide access to a wider talent pool and more opportunities for innovation. Employers should comply with the provisions of the act by developing and implementing best practices for the welfare of transgender people.
(1) Study of Human Rights of Transgender as a Third Gender,
(2) National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
(3) Section 22 of the Transgender Persons (Protection of Rights) Act, 2019.
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