A study on ‘Human Rights as a Third Gender’ (2018) carried out by the Kerala Development Society on behalf of National Human Rights Commission India (NHRC) revealed that around 99% of people belonging to the transgender community face discrimination in the society. Further, 96% of them have been denied employment opportunities. The statistics from an employment standpoint indicate that – just 6% of transgender persons were employed in the formal sector, that too only within the private/NGO sector; majority of the persons were in the informal sector engaging in begging, sex-work, badhai, singing and dancing, sale of fruits, vegetables and flowers, and domestic help; there was not a single person employed in the government sector; and around 75% of the transgender community fall within the income bracket of INR 5,000-15,000.

Even though the study was limited to interviews conducted in Delhi and Uttar Pradesh, it brings to light that the transgender community has been consistently deprived of their right to work. Exclusion from the workplace is dehumanizing and violative of the basic fundamental rights guaranteed under the Constitution of India. The Supreme Court in the case of National Legal Services Authority vs. Union of India (2014) recognized the identity of transgender persons and their right to live with dignity under Article 21 of the Constitution. The judgment also provided for several recommendations to prohibit discrimination in, among other things, the employment sector. Pursuant to this, the Ministry of Social Justice and Empowerment notified the Transgender Persons (Protection of Rights) Act, 2019 (the Act) with effect from 10 January 2020, and the Transgender Persons (Protection of Rights) Rules, 2020 (the Rules) on 29 September 2020.

Ever since the enactment, the Transgender Act has been constantly criticized, especially in relation to the provision on application for certificate of identity. However, that is not the only problem with the Act. While the Act provides for employer obligations, the provisions are not short of inadequacies.

Currently, the following obligations are provided under the Act as well as the Rules:

• No discrimination in any matter relating to employment, including recruitment, promotion, employment benefits, infrastructure adjustments and other related issues.
• Designate a complaint officer to deal with complaints in relation to violation of the provisions of the Act. The inquiry needs to be completed within 15 days from the date of the receipt of the complaint. The complaint officer has to then submit an enquiry report to the head of the establishment who needs to take an action within 15 days from the date of submission of the report.
• Publish an equal opportunity policy for transgender persons. This policy must be displayed on the website and contain the following details –
  • infrastructural facilities (such as unisex toilets), measures put in for safety and security (transportation and guards) and amenities (such as hygiene products) to be provided
  • applicability of all rules and regulations of the company regarding service conditions
  • confidentiality of the gender identity of the employees.
  • complaint officer

These provisions on obligations are plagued with gaps and raise questions on the manner of enforcement.

Firstly, though the obligation is on employers to designate a complaint officer, it is the responsibility of the ‘appropriate Government’ to ensure that establishments have designated a complaint officer. The definition of ‘appropriate Government’ within the Act includes government offices or establishments that are wholly or substantially financed by the government. On comparing this definition with other statutes, it appears that private establishments have been deliberately excluded from the ambit of ‘appropriate Government’. For example, under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), ‘appropriate Government’ is defined to include (i) establishments that are owned, controlled or wholly or substantially financed by the Government; and (ii) any other establishment that is not covered under (i). This definition is broad and covers all organizations, including organizations in the private sector – a similar definition is provided in most statutes applicable to private organizations. However, on a purposive interpretation of the statute, it can be argued that, since the definition of ‘establishment’ includes private organizations and the appropriate Government has been made responsible to incorporate welfare measures even in relation to private establishments, the intention was to include private organizations within the scope of ‘appropriate Government’. This dubiety raises questions around the presence of an enforcement authority for private organizations under the Act.

Secondly, there are no details provided in the Act on the manner of designating a complaint officer. This raises more questions – whether it should be someone from within the organization or external, what qualifications should the individual possess, whether a separate independent mechanism should be created or the individual currently responsible to look into misconduct complaints can be designated as well. Similarly, there are no details provided on the manner in which inquiries are to be conducted. Drawing from the POSH Act, where detailed provisions set out how the internal committee should be constituted and how the inquiry needs to be conducted, it seems that the Act was drafted in a hasty manner without considering the logistics of implementation. The lack of details on the designation of complaint officer and inquiry process could be an impediment for employers to effectively conduct inquiries in a fair, just, impartial and reasonable manner.

Thirdly, the provision on offences and penalties is problematic and incomplete. It specifically applies to only the following offences against transgender persons – (i) forced or bonded labour, (ii) denial of right of passage to public places, (iii) removal from place of residence, and (iv) abuse. This indicates that there is no penalty prescribed for employers in case they are not compliant with their obligations under the Act, which is likely to disincentivize the employers from complying with their obligations under the Act.

Lastly, given the systemic discrimination and marginalization faced by the transgender community at the workplace, the legislation fails to impose any positive obligations on the employers. Though the NALSA judgment specifically recommended reservation for transgender persons in jobs, the Act does not provide for reservation. Further, there are no specific obligations imposed on the employers that require them to review their existing policies to ensure inclusion, modify the recruitment and promotion criteria, conduct awareness and sensitization programs, or submit annual reports to the government. In the absence of this, it is unlikely that any change can be brought about at the workplace.

Given the idea of the Transgender Act is to protect the rights of the transgender persons, reduce discrimination, provide access to equal opportunities and to enable diverse, inclusive and equitable workplaces, there is a need for a robust legal mechanism – which provides for positive obligations, stringent offences and penalties in case of non-compliance, as well as regular monitoring by an enforcement authority. The law in its current state fails to encapsulate this. As a result, most employers have not yet started complying with their obligations under the Act.

Aakriti Chokhani, Advocate & Associate, Inclusion at Work