Transgender Law: What Workplaces must do in Compliance to Protect Transgender Rights?

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In 2014, the Supreme Court of India made a historic judgement, the NALSA judgement

This declared that every person had the right to self-identify their gender, making it legal for transgender to be recognised as a ‘third gender’. The court passed this judgement on the grounds that that gender identity does not refer to biological characteristics, but is simply “an innate perception of one’s gender”. 

In the wake of this judgement, the court directed the Central and State Governments to take several steps for the advancement of the transgender community, including legally recognising “third gender” in all documents. 

This also led to the Transgender Persons (Protection of Rights) Act, 2019 finally being passed after 5 long years, legally protecting the rights of the transgender community. 

Who are Transgenders?

Transgender is an umbrella term used for people whose gender identity is different from the gender they were assigned at birth. As per the new Act, the following category of people are included under this definition: 

  • Intersex:  Intersex people have reproductive anatomy or genes that don’t fit typical definitions of male or female, They have intermixed biological characteristics. For example: someone with XY chromosomes and female genitals or someone with XX chromosomes and male genitals.
  • Trans men and Trans women: These people are born with a body and genes that match a typical male or female, but they know their gender identity to be different. Their gender identity – their innate knowledge of who they are – is different from what was initially expected when they were born.
  • Genderqueer: Some people don’t neatly fit into the categories of a binary gender, i.e, a “man” or “woman”. They may not identify with any gender or their gender may fluctuate over time.

The socio-cultural terms such as kinner, hijra, aravani and jogta have also been included in the definition under the Act.

Workplace Obligation under Transgender Law

Obligations on Workplaces

Let’s start by understanding what the law defines as an ‘establishment’ or a workplace. Every company, body, corporate, association of individuals, firm, cooperative or other society, trust, agency, and institution can be termed an establishment. An establishhment is legally required to protect transgender people from any discrimination in employment, promotions, and other such issues.

In order to provide a discrimination-free workplace for the transgender community, an establishment has the following obligations

  1. Appointment of a Complaint Officer: To redress a transgender person’s grievances regarding any form of discrimination, an establishment has to apppoint a Complaint Officer. The officer’s role is to investigate the complaint and recommend actions that can be taken to the employer
  2. Forming an Equal Opportunity Policy: The establisment must formulate and pubilsh an Equal Opportunity Policy for transgender employees on their website. The policy must contain the details of the complaint officer and all the company’s rules and regulations regarding an employee’s service conditions.
  3. Provide necessary infrastructure facilities: These could vary according to the establishment and needs. One common example could be having unisex washrooms.
  4. Ensure Confidentiality: Private information regarding the gender identity of the company’s employees must remain confidential. 
  5. Safety and security measures: An establishment, or company, must provide the needed measures for safety and security to its transgender employees so that they can work in a peaceful and stress-free environment. These could include hygiene products, transportation, guards, etc. 

The way ahead for Corporations and Organisations 

We have a long way to go in tackling the stigma around the transgender community and ensuring the inclusivity the community deserves. Some ways that a company can begin doing so is:

  1. Put in place adequate grievance redress mechanisms: Appointing a Complaint Officer is only a start. Companies must also have a mechanism in place for redressing complaints, a set process on how an investigation will take place, etc. 
  2. Amend Anti-Harassment Policy: As per the requirements of the POSH Act (The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013), organisations must ensure that a transgender complainant remains anonymous while they redress any harassment complaint.
  3. Amend Service Rules and provide Sex/gender reassignment surgery (SRS) transition support: Undergoing SRS transition is not only a difficult process but also a very traumatic one, both physically and psychologically. Organisations must put in place policies that provide transition support. The support must be extended in the form of paid leave, sensitising the remaining workforce regarding an employee’s transition, providing the employee with rehabilitation support and counselling, etc.
  4. Equal opportunity policy: It’s necessary for every organisation to frame an Equal Opportunity Policy and publish it on their website so that every employee and the public and large knows that the establishment values and safeguards the rights of their transgender employees.
  5. Review HR Policies: The company must review existing HR policies relating to recruitment, performance management, promotion, and termination and if needed, update it to be inclusive of transgender people.
  6. Sensitisation and education: It is also imperative that a company provides training to employees on gender inclusivity and workplace harassment. 

The above insights are a product of our learning and advisory at Lawcubator. Write to us at support@lawcubator.com for queries, feedback or consultation of PoSH.

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