This article has been written by Sushmita Soren, pursuing the Diploma in Labour, Employment and Industrial Laws (including POSH) for HR Managers from LawSikho.
For Joyita Mondal, who was forced to drop out from school at the age of fourteen because of discrimination due to her gender identity, to becoming the first transgender judge of a Lok Adalat from West Bengal, the first in India, her journey has been nothing short of an extraordinary life. And this is only a recent historic event of the year 2017, the 21st century India. Joyita Mondal was not accepted in her own family but she went on to build homes for the homeless and reached out to help the helpless, through her own organization, the Dinajpur Notun Alo (Dinajpur New Light).
Like Joyita, there are several transgender people out there who dream and work hard to live a basic life and want to be recognised by society. But the society does not back their efforts, they just see them as a person, a person whose gender cannot be put into a binary category. The world has come a long way in the last few years and has slowly started to accept the trans community. India has also taken its first baby steps towards identifying and accepting the trans community as a third gender.
The verdict by the Supreme Court of India
On 15 April 2014, the Supreme Court of India, in its groundbreaking decision of National Legal Service Authority vs. Union of India judgement, declared transgender individuals as distinct from the binary gender (male/female) and as a third gender under the Indian Constitution.
To give it a statutory enactment, the Indian Parliament recently formed the Transgender Persons (Protection of Rights) Act in 2019. This act defines transgender as including all individuals whose gender does not conform or match with the gender assigned to them at birth and includes trans-man and trans-woman (whether or not they have undergone sex reassignment surgery.)
Through the Transgender Persons Act, it is hoped that the transgender community will find acceptance in mainstream workplaces in India and in society at large.
Salient features of the Transgender Persons (Protection of Rights) Act, 2019 regarding employment.
- Prohibits denial of employment and discriminatory termination from the same.
- Bars establishment from discriminating against a transgender person in matters related to employment such as recruitment, promotion, etc.
- Creates an obligation on establishments to comply with the provisions of the legislation and provide necessary facilities (not defined though) to transgender employees.
- Creates duty for the appropriate government to formulate welfare schemes and programmes to facilitate and support the livelihood of transgender people, including their vocational training and self-employment.
- Penalties and punishments in the event of any harm caused to them, whether physically, emotionally, sexually, verbally, and/or economically.
The impact on the workplace in India
The guidelines present in the act establish the transgender to be protected from any discrimination in the employment of any kind. But they are very vague when it comes to implementation. Also, various regulations are left to be added at a later stage like the kind of facilities that are obligatory by the employees, etc. Employers are not yet obligated to provide any specific welfare facilities, which lead them to not be accountable to transgender employees in particular. For example, in the year 2017, Kerala Metro Rail Limited (KMRL) offered jobs to twenty-three transgender people in Kochi under the states’ Kudumbashree Mission. The Kudumbashree Mission had entered into a three-year contract with KMRL to employ women and transgenders. But three years down the line, most of these transgender employees have quit their job owing to the unavailability of proper accommodation and meagre salaries.
Employment scenario of the transgender population
The 2011 census had accounted for around 4.8 million transgender population in India. In the last year, with the onset of the pandemic, the government of India announced that each transgender person would receive Rs.1500 as a direct transfer and ration supplies. But only 5711 individuals received the money in their bank account and 1229 received ration supplies. The main reason behind this is that most transgenders have no bank accounts, simply because they have no documentation. This leads us to think about how can the employment process be implemented at all when there is no documentation of the transgender population in the first place.
Charity begins at home
The government has taken the first step of identifying the third gender and accepting its existence. When it comes to employing them in an organization, it must begin with gender sensitization amongst the employees. Only then will the organization be able to foster an environment that is conducive to their needs. When it comes to building a favourable environment for them to work in, the following initiatives by the organization’s human resources would sure be useful:
- Training of organization employees about transgender persons, the LGBTQ community and sensitizing them about their gender preferences. Employees should be informed of their gender transition process, so that it may not appear as a shock to other employees when the transgender employees choose to express themselves freely.
- Employees of the organizations should also be sensitized about the legal and disciplinary consequences of discriminating against their co-workers based on gender identity.
- Revision of company policies, that may or may not be statutory, to include transgender employees and facilitate adequate welfare measures to them. For example amendment in the maternity benefits policy of the organization could be extended to transgender employees.
- Revision of maternity/paternity/ child-care leave policies, in cases where the transgender employee chooses to adopt or bear a child.
- Revision of sexual harassment policies or harassment policy in general in company disciplinary policies to extend to their gender as well.
- Providing training to all employees on gender inclusivity.
- Provide facilities, including access to washrooms, that are appropriate for transgender employee’s identity or construct gender-neutral washrooms.
- Arrange for accommodation and transportation of transgender employees, if necessary, as per company policy.
- Recognition of identity for them: Organizations can provide identity certificates so that they may obtain their proof of identity from respective state governments.
- Strict periodic review of the performance of all employees for due diligence by the employer, so as to ensure the transgender employees are not discriminated against because of their gender identification.
- Gender friendly dress code policies: Companies can choose to not impose a certain dress code, if applicable, to a particular gender, like shirt and trousers for men and saree for women. It may allow the dress code to be worn as per the employee’s gender expression.
- Special grievance redressal cells/ Counselling cells for any matters related to transgender employees: Any employee can be free to lodge any kind of complaint related to the transgender employees anonymously. This may help to identify employee concerns related to transgender employees and can be turned into counselling sessions.
- Prompt HR/establishment facility to be provided to employees who choose to transition to express their gender favourability. This may include a change of their name in the organization document, coverage under employer health benefits, etc.
- Modification of organization’s medical facilities to include healthcare of the transgender employees.
- It must be of utmost priority that the knowledge of gender transformation or transition must be kept highly confidential by the organization, except for medical or legal purposes.
- An organization is a safe place to promote comrade amongst people. Sensitizing employees about this third gender can be in a fun way by celebrating Pride-themed festivals. This would encourage employees to learn more about themselves by engaging in various pride activities such as Pride month trivia.
- The company should place a strict disciplinary policy in place in case of any discrimination against transgender employees.
Inclusion is the key aspect that drives a community anywhere, be it a workplace or otherwise. India, a rather diversified country, has begun to accept the third gender slowly. Many community-based organizations like Humsafar Trust have been formed in India that are reaching out to the transgender population to help them make a dignified living. These organizations are also helping to sensitize the families of transgender employees to increase their acceptance.
A diversified workforce contributes to the increased productivity of the organization. Each individual brings in ideas drawing from their experience. The different cultural backgrounds of the employees foster creative solutions to the problems. Needless to say, including transgender employees across various organizational functions will not only yield positive results but will also put the organization in good light as cultures today are being more tolerant towards accepting facts and trying out new things.
The golden thread that runs the equality scheme of the Indian Constitution like Article 14, Article 15, Article 16, Article 19 and Article 21, is to be able to enjoy life by all citizens of India and an equal opportunity to grow as human beings irrespective of their race, caste, religion, community, social status and gender.
One of the basic tenets of the equality scheme lies in the recognition and acknowledgement of the right of choice and self-determination. Determination of the gender to which a person belongs or relates is intrinsic to the right of self-determination and dignity.
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