INTRODUCTION
India has always been a country that has accepted the change and amended their laws by applying them to the general practice of their citizens. The constitutional rights of living in the land of India have always been secured and backed by the laws and sections made by the lawmakers. In the year 2019, Transgender Persons (Protection of Rights) Act of India was amended which addresses ‘the non-binary person constitutional rights, recognition of their gender identity, and non-discrimination laws across institutional spaces (for example, family, workplace, industry, education, and healthcare). As we have recognized them in the legal system they are still not allowed to work in many industries or other sectors. The amendment recognizes and institutes the inclusion of non-binary gender identities which are lesbian, gay, bisexual, transgender, intersex and queer (LGBTQ+) in the working sector and discussion of human rights. India being the most-populated and highly democratic country creates a huge gap in making and implementing laws. There must be several law formulations in favor of non-binary gender identities but actual struggle begins from accessing them because of less acceptability among the other binary individuals[1].
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
Section 3 and Chapter 2 of the act prohibits the discrimination against Transgenders. It states no person or establishment shall discriminate the transgender on the grounds of:
- Denial, discontinuation, unfair treatment in educational and service establishment
- Unfair behaviour in employment or occupation
- Denial of healthcare services, unfair treatment concerning, access to, or provision or
- enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public
- Issues in the right to reside, right to moment, right to hold public or private office [2]
Section 9 of the Act talks about, how there should be no discrimination against any transgender in any matters relating to employment, recruitment, promotion or other related issues. Under this act sections 10 and 11 also play a vital role by preparing strict guidelines. Section 10 talks about how every company must have rules and regulations, mandatory facilities and monitor compliance. On the other hand section 11 talks about the appointment of the complaint officers to resolve and hear the complaints regarding the violation of section 10.[3] As per the act, there should be proper training in support of their livelihood with the means of vocational and self-employment of the transgenders. All of these sections are prepared while keeping in mind that the transgender must not left behind and their acceptance in any field i.e. industry, factory, workplace, education, health, etc. must be appreciated. To make anything more absolute and authentic in a country like India, there should a proper written compliance all the requirements must be legalized first and laws act as the primary source of living and violation of the same attracts punishment.
TRANSGENDER AND THE ISSUES FACED BY THEM IN THE WORK AREA
Transgender acts as the umbrella term and includes all kinds of living beings who are not sure about their sex which is assigned to them at the time of birth. They commonly face issues with their basic living and any sources of employment. The presence of discrimination rate is higher with them, especially in the area of employment and if they somehow manage to get the work, the discrimination level is too severe. They might not get promoted, or salary hindrances or face biased behaviour despite being more talented and knowledgeable. The survey by the National LBGTQ Task Force and the National Center for Transgender Equality, states that the rate of unemployment of transgender is twice the general public. Due to workplace abuse and discrimination.[4]
WAYS TO HANDLE AND SAFEGUARD THE TRANSGENDERS IN THE i.e. WORKPLACE, INDUSTRY AND FACTORIES
In the office and any workspace, Human Resources Managers play a key role in maintaining the relationship between employees and employers and among employees themselves. Accepting co-workers in the case of trans is the first step towards change. Making policies in favour of transgender helps the company to hold their employees for longer. To maintain the climate stronger and more impactful the company’s HR must look upon policies like
- Antidiscrimination Policies
- Diversity and inclusion initiative
- Benefits Policies and offerings
- Dress code policies
- Recruitment and Selection Process
POLICIES AND ACTS THAT SHOULD INCLUDE TRANSGENDER FOR BETTER GROWTH
- Equal Remuneration Act,1976
- Section 5 of the above-mentioned act only includes men and women and there are no provisions regarding transgenders. The act explicitly states that the employer should maintain a record of the recruited workmen and the salary promised to them. Due to the non-mentioning of transgender employees in the concerned act, an employer can easily misuse their position and can easily discriminate while employing them or paying them.
- The above situation can be resolved by just creating an extra column on transgender but it’s upon the employer whether he wants to be fair and just, as this had not been legalized by the law through amendments.
- Unfortunately, mere employment is not enough. The recent act of Transgender Persons (protection right) Act, 2019 section 9 only talks about employment, prohibition on or unfair discrimination against transgender employees but there is no such mention of equal pay or names on record books and they are still questionable. Here with such a gap and no amendment in older laws are needs to be amended as soon as possible for better employment, placement and acceptability of transgender in society.[5]
- The Maternity Benefit Act, 1961
- The act by the name indicates that it is designed for women, and talks about the pre and
post-phase of pregnancy. By natural law, women in human beings are biologically allowed to give birth to a new human being. A transgender does not identify him or her as a similar sex which has been awarded to them at the time of their birth and those who have been allotted female sex at the time of their birth and later their feelings are not accompanied by their birth sex, then the employer gets confused concerning the compliance perspective.
- The issue in the above act can be only resolved by the basic medical test that the number of transgenders is capable of giving birth. And apart from women these identified transgenders should also receive the said benefit of the act. Which increases the acceptability of trans in the workplace. [6]
CONCLUSION
The majority of Labour laws are old and prepared during the early independence. There has been an amendment in some of the sections but major ones are still unchanged. There is no discussion about the transgender in them. India being a developing nation has seen very strict changes and accepted several changes that are in favour of the upcoming requirements of the nation, allowing and allotting legal recognition to transgender and other non-conforming persons. In Nalsa V. Union Of India, the Supreme Court granted legal recognition to transgender and other gender non-conforming persons and held every person has the Constitutional right to self-identify their gender. [7]
There are laws in our society but the gap between introducing the laws and implementing them is too high. Mere acceptance in today’s world among the binary gender people of non-binary people is complicated enough. It’s been almost a decade since transgender has been awarded legal recognition and still the process of acceptance and understanding is very slow. In 2019 Transgender Persons (Protection of right) Act, 2019 was implemented but due to no amendments in older laws, the loop whole still exists.
Author(s) Name: Smriti Bharadwaj (Savitribai Phule University, Pune (DES’s Shri Navalmal Firodia Law College, Pune)
Reference(s):
[1] Shamayeta Bhattacharya, Debarchana Ghosh, and Bandana Purkayastha, ‘Transgender Persons (Protection of Rights) Act’ of India: An Analysis of Substantive Access to Rights of a Transgender Community’(National Library of Medicin, 11th April 2022)<https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9555747/>accessed on 26th April 2024
[2] Transgender Person (Protection of Right) Act 2019, s 3
[3] Transgender Person (Protection of right) Act, 2019 s 9,10,11
[4] Dr Ritika Shrivastava, ‘Hiring Transgender at Work’ (People Matters, 4 January 2017) <https://www.peoplematters.in/article/recruitment/hiring-transgenders-at-work-14765>accessed on 28 April 2024
[5] Madhu Damodaran & Animay Singh, ‘Transgender Person and Labour Laws: A Grey Area’(Simpliance, 4 November 2020)<https://www.simpliance.in/blog/transgender-persons-and-labour-law/#:~:text=Transgender%20Persons%20(Protection%20of%20Rights)%20Act%2C%202019,-The%202019%20Act&text=Section%2D9%20of%20the%20Act,promotion%2C%20and%20other%20related%20issues.> accessed on 28 April 2024
[6] Ibid
[7] 2014 INSC 275
