Introduction
Laws in India had been strictly binary in terms of their recognition of gender for a long time, recognizing only men and women. In this sense that lack of recognition could be termed a non liquet or a lacuna in law.[1] In the leading SC Judgement of National Legal Service Authority v. Union of India,[2] it was seen for the very first time, the inclination towards Transgenders by entitling them as third gender under our constitution. This was followed by the Transgender Persons (Protection of Rights) Act, 2019,[3] which established the National Council for Transgender Persons and imposed penalties for offenses committed against them. The Discrimination (Employment and Occupation) Convention, 1958, which covers the global arena, requires nations to announce and implement a national strategy aimed at providing equitable treatment with regard to opportunity, employment, and occupation.
Despite strides in recognizing transgender rights in India, labor laws still predominantly adhere to a binary gender framework. This article explores the existing challenges and the crucial need for aligning workplace policies with the evolving understanding of gender diversity in the country.
LGBTQ+ Individuals and the World of Work: Navigating Rights and Inclusion
• A 2018 UNDP and ILO survey revealed that respondents in China, the Philippines, and Thailand reported experiencing harassment, bullying, or discrimination at work due to their sexual orientation, gender identity, gender expression, or other sexual characteristics, accounting for 21% of the total. Some claimed to have seen job adverts that specifically excluded LGBTQ+ people from the requirements, while others speculated that they had been rejected employment because of their sexual orientation, gender identity, or gender expression.
- Research by ILO, as well as by many civil society and workers organizations, businesses, and academics, provides a consistent picture of the challenges faced by the workers as a result of discrimination based on sexual orientation, gender identity, gender expression, and/or sex characteristics.[4] The following concerns are indicated :
- Discrimination takes place across occupations and throughout the employment cycle.
- Those who publicly transgress gender norms often face the highest level of discrimination, violence, and harassment, regardless of sexual orientation, gender identity, or sex characteristics.
- Tran workers report extremely high levels of employment discrimination, violence, and harassment, particularly when their gender expression and identity are incongruent with their identity documents.
- Prejudice and stigma against LGBTQ+ persons result in social marginalization in the workplace; for example, through refusal to shake hands, sit together, or share rooms during work trips, exclusion from informal discussions, meetings, and other work trips, and exclusion from informal discussions, meetings, and work opportunities.
- LGBTQ+ workers widely report being unfairly denied training job advancement opportunities, and promotions.[5]
LGBTQ+ inclusion in the employment cycle
- LGBTQ+ inclusion is necessary at every stage of the employment cycle. This includes broadening the recruitment process to include more LGBTQ+ candidates, enhancing educational and career opportunities (by addressing working conditions and increasing opportunities for on-the-job training and advancement), preventing discrimination, preventing wrongful termination, and offering equal benefits and social protection after employment.
- The employee life cycle covers the entire relationship between an employee and the organization they work for. In simple terms, it describes the different stages an employee goes through from the moment they are hired to when they leave.[6]
- LGBTQ+ individuals can potentially face the employment cycle in five steps :
- Demand- educational opportunities, job searching, and employment opportunities.
- Unconcious bias or prejudice
- Lack of equal protection for LGBTQ+ persons
- Vicious cycle of limited education and job opportunities
- Onboard- recruitment, hiring, and inducting an employee
- Discriminatory or unequal hiring practices
- Lack of supportive policies not known
- Workplace reflection of society
- Develop- becoming part of a team, on-the-job training, adapting, and participating
- Possibilities of harassment at work
- Lack of opportunities for input into innovation
- Workplace-related safety for LGBTQ+ Persons
- Retain –satisfaction, productivity, promotion, and career advancement
- Limited opportunities for advancement
- Repetition, lack of growth and job satisfaction
- Unfamiliarity with career planning.
- Offboard – entry into new development or search for employment(back to demand).
- Social protection systems not open to LGBTQ+
- Lack of recognition of alternative families and support systems
- Lack of career growth opportunities
- Lack of encouragement and guidance.[7]
Equal Labor, Equal Compensation: Addressing Wage Disparities
Legislative measures such as the Equal Remuneration Act of 1976, the Minimum Wages Act of 1948, and the Employees’ Compensation Act of 1923 highlight the significance of equal labour and remuneration.
In 1923, the Employee Compensation Act, 1923,[8] was created, enacting specific rules pertaining to financial support for workers and employees. The law provides appropriate financial assistance in the event of an accident or injury sustained while working. The Minimum Wages Act of 1948,[9] guaranteed workers a minimum acceptable quality of living to meet their basic needs and set the bar for the minimum pay on occasion. Additionally, this regulation protected workers from being exploited because of their gender.
The Equal Remuneration Act, 1976,[10] was enacted as an act in 1976 after being approved as an ordinance on September 26, 1975, with the support of both chambers. This statute was required because women in that age were discriminated against. In that age, this act provided for both men and women. Equity—which holds that all equals should be treated similarly and all unequals should be treated unequally-was the foundation upon which the legislation was formed. The statute guaranteed men and women equal pay for the labour they performed, but it did not grant women the same position or treatment (with the exception of pregnancy, marriage, retirement, or death). Women were permitted to report others for misconduct at work.
The act’s goals were to protect women from sex-based discrimination in the workplace and associated areas, as well as to ensure that men and women workers get equal compensation. The legislation was created with the intention of taking into account that Article 39 of the Constitution states that the State would focus its policies, among other things, on ensuring that men and women get equal compensation.
The Second National Commission of Labour in 2002 tried to bring out the issue of the multiplicity of Labour Laws in India to the Central Government and recommended codifying and bringing it to 3-4 labour laws only by complying them.
At that time, the federal government took the lead and codified 29 laws into 4 Codes, providing workers with security, health care, and other social benefits. The 4 codes repealed the 24 laws on the Labour Law, Codes on Wages (4 laws were repealed), Industrial Relation Code (3 laws were repealed), Social Security Code (9 codes were repealed), Occupational Safety and Health Code (13 Codes were repealed).
The earlier act dealt with only men and women, it clearly stated that there should be no discrimination on the grounds of sex, sex here included only men and women and excluded transgender and hence there was no law that included transgender in order to provide workplace rights and to provide equal pay to them. To curb this, and to bring them to an equal stance Code of Wages and other codes enumerated provisions giving them rights.
The Equal Remuneration Act of 1976 was superseded by the Code on Wages Act of 2019. This was the first law to acknowledge that transgender people should also be entitled to equal pay and work conditions. The statute guarantees worker and employee protection and prohibits gender inequality. The Code on Occupational Safety and Health also took a step forward in providing separate washroom facilities to transgender.
Overview of Transgender Persons (Protection of Rights) Act, 2019
The Transgender Persons (Protection Of Rights) Act was passed in the year 2019. The legislation forbids discrimination against transgender individuals in the following areas: education, healthcare, employment, access to and enjoyment of public goods, facilities, and opportunities, right of residence, freedom of travel, and more.
The Supreme Court of India in its ground–breaking decision of National Legal Service Authority v. Union of India[11] for the very first time distinguished transgender individuals from binary genders (i.e. male/female) and recognized them as the third gender under the Indian Constitution. It also recognized the right of transgender people to declare their self–perceived gender identity without undergoing sex reassignment surgery.
However, the non-recognition of the third gender through the years, in both legal and social structures, has created a system where there is a lack of equal protection by the law, with the result that the trans community faces socio-economic discrimination in society.
The act attempts to provide a framework that guarantees nondiscrimination and equal protection for transgender people. The Act places the onus of developing an anti-discrimination policy against transgender people in the workplace on the “establishments,” while also guaranteeing equal opportunity in areas such as hiring, advancement, and other employment-related choices. In accordance with this legislation, any corporation, body corporate or business, cooperative, trust, agency, or institution is considered a “establishment.” Additionally, it defines discrimination as receiving unfair treatment at work or being denied access to something.
Provisions of Transgender Persons (Protection of Rights) Rules, 2020 (India)
The Ministry of Social Justice and Empowerment, on 25th September 2020, notified the Transgender Persons (Protection of Rights) Rules, 2020. The Rules were issued in the exercise of its powers conferred under Section 22,[12] of the Transgender Persons (Protection of Rights) Act 2019 (‘2019 Act’).[13]
- Welfare Support Programs: According to Rule 10 of the Act[14], a Welfare Board must be established to make it easier for people to access the programs and welfare actions the government has taken to defend the rights of transgender people. The Government is also required to assess all current social, educational, and health programs to include transgender people. Additionally, new programs must be developed that are transgender-sensitive, non-stigmatizing, and non-discriminatory. Within two years of the Rules’ entry into effect, they mandate the construction of infrastructure facilities such as separate HIV sero-surveillance centers, hospital wards, public restrooms, temporary shelters, and short-term housing.
- Provisions of equal opportunity and Non-Discrimination: The rules aimed at ensuring non-discrimination of transgender persons in public life have introduced crucial mechanisms to protect their rights and dignity. These mechanisms encompass various aspects of public life, including education, employment, healthcare, and access to public facilities. They prohibit discrimination based on gender identity or expression, ensuring that transgender individuals have equal opportunities and protection under the law. Additionally, the rules promote awareness and sensitivity training among public officials and service providers to foster a more inclusive and accepting environment for transgender persons. By addressing discrimination at its roots and promoting inclusivity, these rules aim to create a more equitable and just society for transgender individuals in all facets of public life.
- Equal Access to Employment Opportunities: According to Rule 11[15], all enterprises must make sure to incorporate infrastructure modifications, recruitment, employment perks, and promotion for transgender people to create a safe atmosphere and equal chances. Publication of an organization’s equal opportunity policy is required.
- Tracking and solving the Grievances and Complaints: The rules require the government to establish a grievance redressal mechanism within one year, appoint a complaints officer, and set specific timelines for addressing complaints related to non-discrimination. Complaints must be inquired into within 15 days and resolved within 30 days from filing, ensuring timely and efficient responses to individuals’ concerns, promoting accountability, and upholding the principles of non-discrimination.
The National Institute of Social Defence will give secretarial assistance to facilitate the discharge of functions of the National Council for Transgender Persons.[16]
Conclusion
In conclusion, the research presented in “Embracing Diversity: Advancing Workplace Inclusion for Transgender and LGBTQ+ Communities” underscores the critical importance of fostering inclusive and equitable work environments for all individuals, regardless of their gender identity or sexual orientation. It highlights the persistent challenges faced by transgender and LGBTQ+ employees, including discrimination, bias, and unequal treatment, and emphasizes the need for proactive measures to address these issues.
Moreover, the research showcases the numerous benefits that come with workplace diversity and inclusion, such as improved employee morale, creativity, and organizational performance. It also emphasizes the ethical imperative of upholding the rights and dignity of all employees, as affirmed by legal and societal standards.
The findings of this research underscore the significance of adopting comprehensive policies and practices that not only protect the rights of transgender and LGBTQ+ individuals but also actively promote their full inclusion and participation in the workforce. Such measures can include non-discrimination policies, diversity training, support networks, and benefits that cater to the unique needs of these communities.
Author : Mukul Khandelwal, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD
References
- Alexander S. Gillis, Employee Lifecycle, Tech Target, https://www.techtarget.com/searchhrsoftware/definition/employee-life-cycle (February 21, 2024, 1:10 AM).
- Equal Remuneration Act, 1976, No. 25, Acts of Parliament, 1976.
- INDIA CONST. art 39.
- International Labour Organization, Inclusion Of Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTQ+)persons in the world of work: A learning guide 28 (2022).
- LGBTI Rights, AMNESTY INTERNATIONAL, (February 13, 2024, 7:19 PM), https://www.amnesty.org/en/what-we-do/discrimination/lgbti-rights/.
- Minimum Wages Act, 1948, No.11, Acts of Parliament, 1948.
- Madhu Damodaran and Animay Singh, Transgender Persons and Labour Law: A Grey Area, SIMPLIANCE, (February 10, 2024, 2:04 PM), https://www.simpliance.in/blog/transgender-persons-and-labour-law/.
- National Legal Services Authority v. Union of India, (2014) SCC 438.
- SOUTH ASIAN TRANSLAW DATABASE, https://translaw.clpr.org.in/legislation/transgender-persons-protection-of-rights-rules-2020/#:~:text=Equal%20Opportunity%20in%20Employment%3A%20Rule,and%20promotion%20for%20transgender%20persons (February 22, 2024, 6:47 PM).
- Transgender (Persons Protection of Rights) Act, 2019, No.40, Acts of Parliament, 2019.
- Transgender Persons (Protection of Rights) Act 2019, § 22, No. 40, Acts of Parliament, 2019 (India).
- Transgender Persons (Protection of Rights) Act 2019, Rule 10, No. 40, Acts of Parliament, 2019 (India).
- Transgender Persons (Protection of Rights) Act 2019, Rule 11, No. 40, Acts of Parliament, 2019 (India).
- Workmen Compensation Act, 1923, No.8, Acts of Parliament, 1923.
Author : Mukul Khandelwal, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD
[1] Madhu Damodaran and Animay Singh, Transgender Persons and Labour Law: A Grey Area, SIMPLIANCE, https://www.simpliance.in/blog/transgender-persons-and-labour-law/ (February 10, 2024, 2:04 PM).
[2] National Legal Services Authority v. Union of India, (2014) SCC 438.
[3] Transgender (Persons Protection of Rights) Act, 2019, No.40, Acts of Parliament, 2019.
[4] LGBTI Rights, AMNESTY INTERNATIONAL, https://www.amnesty.org/en/what-we-do/discrimination/lgbti-rights/ (February 13, 2024, 7:19 PM).
[5] International Labour Organization, Inclusion Of Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTQ+) persons in the world of work: A learning guide 28 (2022).
[6] Alexander S. Gillis, Employee Lifecycle, Tech Target, https://www.techtarget.com/searchhrsoftware/definition/employee-life-cycle (February 21, 2024, 1:10 AM ).
[7] Supra note 5.
[8] Workmen Compensation Act, 1923, No.8, Acts of Parliament, 1923.
[9] Minimum Wages Act, 1948, No.11, Acts of Parliament, 1948.
[10] Equal Remuneration Act, 1976, No. 25, Acts of Parliament, 1976.
[11] Supra note 3.
[12] Transgender Persons (Protection of Rights) Act 2019, § 22, No. 40, Acts of Parliament, 2019 (India).
[13] SOUTH ASIAN TRANSLAW DATABASE, https://translaw.clpr.org.in/legislation/transgender-persons-protection-of-rights-rules-2020/#:~:text=Equal%20Opportunity%20in%20Employment%3A%20Rule,and%20promotion%20for%20transgender%20persons (February 22, 2024, 6:47 PM).
[14] Transgender Persons (Protection of Rights) Act 2019, Rule 10, No. 40, Acts of Parliament, 2019 (India).
[15] Transgender Persons (Protection of Rights) Act 2019, Rule 11, No. 40, Acts of Parliament, 2019 (India).
[16] Supra note 14.
