Transgender people exist in every caste, race and religion. They face obstacles with respect to access to right to equality, social rights, education and employment. Due to covid, people of India faced unemployment for the longest and transgender community have been the worst hit. This article defines various provisions of The Transgender Persons (Protection of Rights) Act, 2019 (TPA, 2019) and according to those provisions what are the roles of the employers at a workplace in creating an equitable and respectful environment for transgender employees. The TPA, 2019 is designed to be effective in safeguarding the rights and dignity of transgender employees.
Socio- Historical Context of TPA, 2019
Transgender individuals have historically been denied access to education, healthcare, and employment opportunities, leading to a cycle of poverty and limited social mobility. Prior to the TPA, 2019, there was no comprehensive legal framework to protect the rights of transgender individuals. During British colonial rule, laws criminalizing same-sex relations and hijra practices(These practices refer to the traditional, cultural and gender identity practices, these often involve unique social roles, rituals, and communal structures) were established, further marginalizing transgender individuals and their communities. The 2014 landmark judgment by the Supreme Court of India in the case of NALSA Vs. Union of India recognized transgender individuals’ rights to self-identify their gender and access legal protections. This judgment laid the foundation for legal reforms. Building on the NALSA judgment, various states in India began enacting policies and laws to protect transgender persons’ rights. Due to such efforts of activists, the TPA, 2019 was enacted to make things better. It wants to give transgender persons legal rights, shield them from unfair treatment, and offer them help through social programs.
In India the trans population is about 4.88 lakhs as per the 2011 census, out of which a few only are provided with the employment opportunities. According to this study 96% of the transgender persons are denied for employment and are forced to go for giving badhais or work as a sex worker or panhandle.
What does the law say?
The TPA, 2019 provides the provisions related to the protection of the transpersons in the society.
By knowing these laws, we can ensure that transgender individuals are treated with dignity and respect, free from discrimination. It guides employers, policymakers, and individuals in making an environment where everyone’s rights are upheld, enabling us to contribute to a society where diversity is celebrated and every individual, regardless of gender identity, can live and work without fear of injustice.
1.According to Section 2(k) of the TPA, 2019 the definition of a transgender person is someone whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone gender confirmation/affirmation Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
2.Section 3 (b) ensures that there shall be no discrimination or any unfair treatment in relation to, employment or occupation.
3.Section 3 (c) of the TPA, 2019 ensures that there shall be no denial of or termination from employment or occupation solely based on gender identity.
4.Section 3 (i) of the TPA, 2019 ensures that there shall be no denial of access to or removal from or unfair treatment in, Government or private establishment in whose care or custody a transgender person may be.
5.Section 9 says that no establishment shall discriminate against any transgender person in any matter relating to employment including, but not limited to, recruitment, promotion and other related issues.
6.Section 10 says that every establishment shall ensure compliance with the provisions of the TPA, 2019 and provide such facilities to transgender persons as may be prescribed.
7.Section 11 of the TPA, 2019 ensures that every establishment shall designate a person to be a complaint officer to deal with the complaints relating to violation of the provisions of this Act.
8.Section 14 of the TPA, 2019 ensures that the appropriate Government shall formulate welfare schemes and programmes to facilitate and support livelihood for transgender persons including their vocational training and self-employment.
9.Section 17 provides for the formation of a National Council by the Central Government with a representative from the Labour and Employment Department and Department of Legal Affairs, amongst others.
Penalties and Redressal under the TPA, 2019:
It’s important to follow the rules and not force transpersons to work against their will. The following legal consequences according to the TPA, 2019, if any employer causes inconvenience to the employees belonging to this community. These penalties help prevent unfair treatment and ensure that transgender individuals can live and work safely, just like everyone else.
Section 18(a) of the TPA, 2019 compels or entices a transgender person to indulge in the act of forced or bonded labour other than any compulsory service for public purposes imposed by Government, shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine.
According to Section 18(d) of the TPA, 2019, any person who harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.
What do the employers need to know?
1.Provide them with their rights:
The people of the transgender community shall know their rights of employment while working in an establishment and these rights shall be provided by their employers which are mentioned in the above sections of the TPA, 2019.
2.Provide them with comfortable environment and the policies of the establishment:
Every employer shall provide a comfortable working environment to its employees so that they can adapt the basic rules and regulations of an establishment they are working in and seek redressal and register grievance against any discriminations as suggested under the laws above.
3.Pronouns and name usage:
Any employer and every member of establishment can use pronouns like ‘they’, ‘them’ and ‘theirs’ to denote that transgender persons are there and cannot be ignored by the two gender identities. In general, this will signify warning to the rest of the members not to refer to them using their inappropriate gender. The context of pronouns is not mentioned in the TPA, 2019, however, one shall consider it as a sense of respect.
4.Provide welfare programmes:
As mentioned above in Section 14 of the TPA ,2019 that the appropriate government shall provide welfare programmes to support the livelihood of the transgender individuals, hence, it becomes the responsibility of an employer to arrange such programmes which would provide them with information about their roles as an employee.
The people of the transgender community may be provided reservation by their employers which was decided in the judgement of NALSA Vs. UOI which acknowledged the rights of transgender individuals to determine their own gender identity and provided them access to their legal rights.
Sangama Vs State of Karnataka
In conclusion, the TPA, 2019 has put a significant step towards safeguarding the rights and dignity of transgender individuals in India. It is a response to historical injustices faced by the transgender community, aiming to address discrimination, lack of opportunities, and societal discrimination.
With its provisions, the TPA, 2019 aims to create an inclusive and respectful environment in workplaces for transgender employees.
Employers play a crucial role in realizing these goals by following the TPA, 2019 provisions. Through the efforts mentioned above, progressive employers can contribute to a more equitable and respectful society for everyone, regardless of their gender identity.
Frequently Asked Questions
No, the TPA, 2019 prohibits employers from requiring a transgender person to provide proof or documentation of their gender identity. Gender identity should be respected based on self-identification. It is important for employers to seek legal advice and guidance to understand the specific requirements and implications of the TPA, 2019 in their workplace context.
Section 11 of the TPA, 2019 suggests the Grievance redressal mechanism according to which, “Every establishment shall designate a person to be a complaint officer to deal with the complaints relating to violation of the provisions of this Act.” However, the TPA, 2019 does not provide a comprehensive framework for handling complaints of sexual harassment with optimal efficiency.
Although the Protection of Women from Sexual Harassment at Workplace (POSH) Act, 2013, is not inherently gender-neutral and primarily safeguards the rights of women, there is ambiguity regarding its applicability to transgender individuals. Nevertheless, when interpreted in conjunction with the TPA, 2019 and the NALSA judgment, it could be argued that the POSH Act, 2013 extends protection to trans women, irrespective of whether they have undergone gender-affirming surgery. Such individuals have the option to file complaints with the Internal Committee of the establishment.