The constant struggles by trans activists resulted in the judiciary passing a landmark judgement, which amplified and protected trans rights.
The Supreme Court of India in its ground-breaking decision of National Legal Services Authority vs. Union of India AIR (2014) for the very first time distinguished transgender individuals from binary genders (i.e. male/female) and recognised them as a third gender under the Indian constitution. The court took into account the discrimination that the trans community had undergone in India. While the lack of inclusivity in areas of education and employment being a hindrance to their growth and development.
Some of the important points of this Act
- The judgment recognized their Right to life and dignity as guaranteed by the constitution.
- The judgment was then given a statutory effect by formulating the Transgender Persons Act.
- The act defines the term transgender as including all individuals whose gender does not conform to the gender assigned to them at birth and includes trans-man and trans-woman (whether or not they have undergone sex reassignment surgery).
Challenges of a transgender person
Through the years the non-recognition of the Third Gender in both legal and social structure has created a system, where there is a lack of equal protection of the law and socio-economic discrimination in society faced by the trans community.
The Transgender Persons Act aims to create a structure that ensures equal protection and non-discrimination against trans individuals. In the workplace, the Act puts the responsibility on the `establishments’ for creating an anti-discrimination policy against transgender individuals, while providing equal opportunity in matters inclusive of recruitment, promotion, and other employment-related decisions. Under the Act, the term “establishment” covers any company or body corporate or firm, cooperative, trust, agency, or institution. While the act also defines discrimination as denial or discontinuation of access to or enjoyment of, or unfair treatment in employment. The Transgender Persons Act further puts the responsibility on the establishment to :
(a) Provide facilities to transgender persons, Chapter V requires Establishments to ensure compliance with the Act and provide facilities as may be prescribed by the Act.
(b) Existence of a grievance redressal mechanism to deal with complaints relating to trans individuals, to have a complaint officer to deal with such complaints. Similar to the requirements under the POSH Act (The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013), organisations should create a grievance redressal mechanism for transgender individuals that protects their interests.
(c) Organisations are required to update their HR, administrative, recruitment, and employee benefit policies and manuals making them inclusive of the rights of Trans Individuals. Finding ways to be inclusive of the third gender in the workplace through a non-discrimination and equal opportunity policy in place.
Most importantly the responsibility of an organisation is to educate its employees towards values of gender inclusiveness as well as acceptance of transgender persons into the corporate environment. This transition can also be smoothened by the creation of gender-neutral washrooms, dress codes for trans individuals. By also being sensitive towards the struggles of the trans individual the corporates can be the batons of change by creating an inclusive world for the third gender in a binary structure.
About the Author and Serein
Faakirah Junaid Rafiquee is a lawyer and content designer. She is an experienced head of operations skilled in research, policy analysis, human rights, mental health, women rights, workshop moderation and document drafting. She is a strong operations professional with a Bachelor of Law focused in women rights and policy analysis. She has facilitated and designed workshops on issues like feminism, prevention of mental health, and childhood sexual abuse. She also has developed courses, modules and programmes on the same issues. Faakirah writes on women’s and mental health issues.
The materials on this web site have been prepared by Serein Inc. for informational purposes only and are not legal advice or a substitute for legal counsel. Reader should not rely or act upon this information without seeking professional counsel.
Serein Inc is an end to end service partner for the implementation of Prevention of Sexual Harassment (POSH) legal compliance. We partner with companies on case redressal and policies to proactively build safer work cultures and sexual harassment (POSH) trainings either in person or virtually. For more details on diversity, inclusion and prevention of sexual harassment (POSH training in India and the US). For more information on how to conduct a fair, timely and legally sound POSH enquiry process, reach out to hello@serein.in
