The Third Gender and Transforming the Workplace - A Brief Note on the Transgender Persons (Protection of Rights) Act, 2019 and its Impact on the Indian Corporate/Workplace Scenario 

March, 2020 - Shivika Upadhyay, Vishal Singh

The golden thread passing through the equality scheme[1] of the Indian constitution is “enjoyment of life by all citizens 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 acknowledgment of the “right of choice and self-determination”. Determination of gender to which one belongs and relates to is intrinsic to an individual’s right of self-determination and his/her dignity.

Acknowledging that Indian laws are substantially binary in nature recognizing only the genders of male and female, the Hon’ble Supreme Court of India vide its order dated 15th April, 2014 in the case of National Legal Services Authority vs. Union of India[2] (“Nalsa Judgement”), declared Transgenders[3] apart from binary genders, as the “Third Gender” under our constitution and for the purposes of laws enacted by the parliament and state legislatures.

Non-recognition in our legal framework of the Third Gender has resulted in systematic denial of equal protection of law and widespread socio-economic discrimination in society at large as well as the Indian workspace. In wake of the Nalsa Judgment, the Indian parliament has recently enacted the Transgender Persons (Protection of Rights) Act,2019[4] (“the Act”).

Drawing a distinction between the actions that require immediate implementation such as introducing social welfare schemes and actions that require a long term approach such as changing the negative attitude of the general public, the legislature has placed positive obligations on all the concerned Stakeholders[5] in the form of guarantees (from Chapter II to Chapter VIII) such as:

  1. Prohibition of discrimination against Transgender persons[6];
  2. Recognition of identity and conferring the right and entitlement to obtain a certificate of identity as proof of recognition from the concerned state authorities;
  3. Formulation and enactment of welfare measures, schemes, programmes towards education, social security, healthcare, effective participation in the society and facilitating access to such schemes and welfares measures by appropriate state governments;
  4. Rescue and rehabilitation measures, including right of residence by appropriate state governments;
  5. Obligations of Establishment[7] - Chapter V obligates Establishments to ensure compliance with the Act and provide facilities as may be prescribed by the Act from time to time. In matters relating to employment including but not limited to recruitment, promotion and other related issues, no Establishment shall discriminate against a Transgender person and shall provide for adequate grievance redressal mechanism to deal with complaints relating to violations under the Act and at workplace;
  6. Constitution and establishment of the National Council for Transgender Persons to perform the functions assigned to it under the Act, including but not limited to advising the concerned Stakeholders on formulation of policies, programmes, legislations and welfare measures, to monitor and evaluate the impact of policies and programmes designed for ensuring participation of Transgenders, ensuring redressal of grievances of Transgender Persons and so on;
  7. Offences and Penalties for offences committed against Transgender persons: whoever, (i) compels or entices forced or bonded labour (excluding compulsory government service for public purposes), (ii) denies the right of public passage or use of public places, (iii) forcefully removes from household, village or other place of residence, (iv) commits an acts or intends to do an act causing physical, sexual, verbal, emotional or economic harm and/or abuse, shall be punished with imprisonment which may vary between six months to two years, with fine.

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[1] Articles 14,15,16, 19 and 21 form the equality scheme of the Indian constitution.

[2] AIR2014SC1863

[3] Transgenders – as defined in the Act, the term refers to and includes all those persons whose gender does not conform/match with the gender assigned to them at birth and includes trans-man and trans-woman (whether or not such person has under gone Sex Reassignment Surgery (“SRS”) and persons having socio-cultural identities such as kinner, hijra, aravani and jogta.

[4] Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha on July 19, 2019 by the Minister for Social Justice and Empowerment and subsequently, was passed on November 26, 2019 by Rajya Sabha. The Bill received the President’s assent on 5th December, 2019.

[5] Stakeholders include the central government, state governments and establishments (as defined under the Companies Act, 2013).

[6] From denial or discontinuation of, or unfair treatment in (a) educational establishments;(b) in relation to employment; (c) healthcare services; (d) access to or enjoyment of any goods, accommodation, service, facility meant for public use; (e) right of movement; (f) right to purchase reside, purchase, rent or otherwise occupy property; (g) opportunity to stand for or hold public office and (h) government or private establishment in whose care or custody a transgender person is.

[7] Establishments – mean any body or authority corporate established by or under a central or state act or anny body owned/controlled/aided by the government or any company or body corporate or association or body of individuals, firm, cooperative, other society, trust, agency or institution.

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