By: Darshita Srivastava* |
When Margaret Thatcher said “You may have to fight a battle more than once to win it” she elicited the latent struggle of the transgender community in establishing their presence, position, and potential in today’s society. Their provenance is as old as that of man and woman but their acceptance in the society is still an aberrant ideology. The supreme lex loci, which guarantees “to secure all its citizens, Justice, Liberty, Equality, and Fraternity”, equipped the state governments by virtue of Articles 14 and 21 to protect and uplift the status of this community but, unfortunately, the succeeding governments have failed to realize the true potential of these two Articles in proving protection to transgender persons.
The marginal note of Article 16 which provides for equality of opportunity in matters of public employment, has very vaguely provided protection to transgender persons. The legislature also has drafted no certain laws to deduce the fact that transgender persons will get equal opportunities in employment matters. As per the 2011 census, out of 490,000 transgender in India, only a few have succeeded to make it to gainful employment. Joyita Mondal, the first transgender judge at Lok Adalat in North Bengal, has faced a lot of discrimination still her indomitable spirit made it possible for her to get what she deserved. However, not everyone is Joyita Mondal; most transgender persons succumb to society’s discrimination. Article 16 (4) does allow the State to make special provisions for backward classes but the judicial maneuver (post- Indra Sawhney) has clarified that the ‘backwardness’ of the class is determined based on caste and economic conditions.
Labor Laws on Transgender- A feeble effort by the Parliament:
Transgender persons were initially not regarded as an inseparable part of society due to their aberrant identity, but their presence has been marked from ancient times. In mythos like ‘Mahabharata’, the character of Shikhandi depicts the valor and presence of the transgender community in our society. Despite their perennial presence, this community had waited overly long to get legal recognition in the eyes of the society. In the landmark case of National Legal Service Authority v. Union of India, the Supreme Court hailed the presence of the transgender community by acknowledging and declaring it as the ‘Third Gender’ in Indian Constitution. The Court finally recognized their rights under Article 16 and conceded the unfair treatment faced by the transgender community in different spheres of life, especially employment. The Court held that this unfair discrimination on the basis of sex is a violation of Article 14 and upheld their right to autonomy, privacy, and dignity under Article 21.
In response to this much-lauded judgment, Parliament, after taking five years of time, finally legislated upon the rights of the transgender community in employment and in 2019, passed the Transgender Persons (Protection of Rights) Act. This Act is an appreciated effort by the legislature as they, at last, recognized the need and necessity of providing protection to this defenseless community, especially in matters of employment.
The Act explicitly provides the right to transgender persons to stay with their family and prohibits any kind of discrimination against them in matters of employment which includes recruitment, promotion, and others. The Act covers governmental as well as private entities and has defined the term ‘Transgender’ and ‘intersexual’ also.
It provides that no establishment shall discriminate in employment matters against Transgender persons. The term ‘establishment’ is widely defined in the Act. The Act also seeks to establish a National Council for Transgender Persons to look after the welfare and protection of the community. The Council can impose penalties for offenses committed against transgender.
A Toothless Tiger:
The Act though an admirable step by the legislature is nothing but a toothless tiger. The Act does not stand the trials of practicality as it gives them rights but without remedy. The Act does not specify any penalty or punishment for the non-compliance with or violation of the right to employment provided therein.
It imposes punishment for the offence of physical or sexual abuse for two years, but the term ‘sexual abuse’ is undefined. Provides for a transgender person to obtain a certificate of identity which will help in accessing various governmental welfare schemes, also tries to evade from the light of reality as getting an identity card is an uphill task for a transgender. This is because of the administration’s slow and lethargic working style; and second, because getting an identity certificate requires other existing documents that are hard to accumulate as most of the transgender persons have left or have been sent away from their family homes. The birth certificate also does not provide for a separate column for intersex children. Therefore, one may conclude that this Act came out like a Hobson’s choice for the Transgender community.
Other Labor Laws and International Conventions:
Apart from this Act, other legislation of the Parliament for regulating labor laws in industrial works and establishments also proved to be anything but effective for transgender persons. Filling a form ‘D’ under Equal Remuneration Act, 1976 is a requirement for the employees as this form contains all their related details regarding remuneration and gender. This form has binary columns only for men and women. The Code on Social Security, 2020, and the Industrial Relation Code, 2020 also don’t deal with transgender persons specifically under any of their provisions. No labor laws or social security laws, till date, entertains any guidelines preventing sexual harassment against transgender.
The Code on Occupation Safety, Health, and Working Conditions, 2020 imposes a responsibility on employers to ensure that transgender persons get separate washrooms, locker rooms, bathing places, and shelters but the ground reality is different from the legal reality as transgender people are forced to use the male washrooms.
A ray of hope appears when one focuses on the affirmative paperwork done by the government to ensure the upliftment of this community. India has ratified the Universal Declaration of Human Rights in 1948, Article 7 of which says, “All are equal before the law and entitled to equal protection without discrimination”. Resolution 32/2 of the Human Rights Council, adopted in 2016, specifically provides for “protection against discrimination based on sexual orientation and gender identity”. Discrimination (Employment and Occupation) Convention, 1958 of the International Labor Organisation, ratified by India, promotes equality of opportunity in employment and occupation. Despite the strong paper base, the legislation still lacks effectiveness due to the weak social support as enumerated in the next section.
The denigration of transgender by Indian society:
A law is not only made for the society but also flows from the society. In 2012, Argentina’s Senate unanimously approved the Gender Identity Law, making sex-change surgery a legal (but not mandatory) right. Canada introduced gender-neutral passports by allowing individuals to choose the gender “X” if they do not identify as male or female. In 2013, the Australian Senate was one of the first to launch an inquiry into forced sterilization of intersex individuals. In the same year, the country also adopted the Sex Discrimination Amendment (Sexual Orientation, Gender Identity, and Intersex Status) Act – the first law to include intersex status as a stand-alone status against which discrimination is prohibited.
In India, it is difficult to include transgender people into the mainstream of employment as the society is transphobic. Since the very beginning, the society has been prejudiced and cruel against the transgender community. They have been regarded as an outcast or aberrant individuals. In our society, the potential and caliber of a human are determined by their gender. This ideology is conspicuously visible from the fact that transgenders are not allowed to enter NCC. Why? This is probably because of their atypical identity, which does not correspond to that of the binary genders. The Kerala High Court has held that transgenders are allowed to join NCC but the Central Government defied this judgment by stating that adding a third gender in the sphere of defence is their prerogative and one cannot anticipate such action from the government in the near future.
Shabi, India’s first transgender soldier had to undergo a sex reassignment surgery to escape from being dismissed. Even after the surgery, she was kept in a male ward and was mentally tortured so that the concerning authority could declare her mentally unfit for the navy. Just like her, there are many ‘Shabi’ in the transgender community who are silenced, tortured, mocked, and outcasted for being something over which they have no control. The sex of a person is assigned to her at the moment of birth and couldn’t be changed but gender is a social construct and thus can be changed by changing the norms of the society. Law’s purpose is not only to protect the society but also to bring in the desired changes to convert it into an egalitarian society. Thus, the legislature holding the sword of changes needs to cut down these typecast and social norms against the transgender community and should make laws that would change the nature of the Indian society from Transphobic to Trans-philic.
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*The author is a student at S. S. Khanna Girls’ Degree College, affiliated with The University of Allahabad, Prayagraj.