Authors: Kriti Chaturvedi, HNLU
Rishika Nagpal, SLS, Pune
Rakesh Lakra, JLU, Bhopal
Editor: Anoushka Chauhan, NALSAR
Indian laws are binary in nature, recognising only male and female members. But on 15 Apr 2015 in the NALSA judgment, Supreme Court declared transgender as individuals and distinct from binary gender as third gender under the Indian constitution, and for the purpose of law enacted by the parliament and state legislature. In wake of the NALSA judgment, the Indian parliament enacted The Transgender Persons (Protection of Rights) Act, 2019 with the objective to provide for protection of rights of transgender people, and for their welfare. In 2014, Supreme Court of India recognised transgender as the third gender and asked the Central and State government to provide them the same opportunity as others.
Labour laws deal with the statutory requirements and collective legal relationship between organized economic interests and the state, and the various rights and obligations related to some types of social services. Labour laws are specially made for the workers, employers and trade unions to secure better industrial relations and for their social security. Labour law binds the employers and employees to work according to the provisions and guidelines.
Unfortunately, no necessary changes were made under labour law for the third gender because according to the Law Minister, transgenders fall within the definition of ‘person’, and therefore there is no need to add separate clauses for them. But Labour Code on wages bill prepared by Labour Ministry on 2015 had provisions prohibiting discrimination in wages for transgenders and also proposed amendments to the Factories Act, 1948, so that every transgender shall have equal right to work opportunity in factory and rules to secure the rights of transgender workers (to ensure dignity, non-discrimination, etc.) as government proposal said, but no amendments were made.
RIGHTS OF TRANSGENDERS IN LABOR LAWS
Discrimination against transgender people is not a new phenomenon, and it persists despite the progression of our society. Discrimination is still prevalent in India on lines of sex, gender, and other parallel social issues. Sex discrimination is still prevalent in India when it comes to the inclusion of transgenders in any field. The continuous acts of the activists led to the recognition of transgenders being distinct from the gender binary and separate ‘third gender’, therefore being entitled to the Right to Life under Article 21 of the Constitution in the case of National Legal Services Authority of India v. Union of India. Activism to provide substantive equality has surged, and while legislations such as the Transgenders Persons (Protection) Act has been passed, it is still imperative to examine the employment rights of transgender persons with respect to the labor laws of India.
As per 2011 census data, India's trans population consists of 490,000 people, out of which only a handful of them make it to gainful employment. The first ever survey regarding this was done by National Human Rights Commission (NHRC), which gave a clear picture of the scenario of the employment rates of transgenders in India. The study showed that 92% of the transgenders are deprived of substantial work that would yield rewarding monetary compensation, and also deprived of opportunities regarding education and the participation in socio-economic activities.
The Transgenders Persons (Protection of Rights ) Act, was passed in 2019, mentioning all the relevant provisions to abolish the discrimination on the basis of sex to benefit transgender persons. These include prohibition of unfair treatment in employment or occupation and prohibition of termination or denial of employment. It bars establishments from discriminating against a transgender person in recruitment, promotion and other related issues. It provides for safety measures to see that establishments do not violate this Act, and in furtherance, provides for punishments and penalties in cases of violation. Article 15 of the Act imposes an obligation of the government to enact effective schemes to further the objectives postulated in the Act, amongst other provisions of the same character. The government established National Council for Transgender Persons. The National Council will perform the functions as prescribed in the act, including the stakeholders but not limiting it to advising them on formulation of Policies and programmes designed for ensuring participation of transgenders and ensuring redressal of grievances of transgenders amongst others.
To view this in an international framework, the first case that prevented workplace discrimination of transsexual people in employment or vocational education was that of P v. S and Cornwall County Council. Decided in the International Court of Justice in 1996, it was seen that when a trans women was fired from her job before undergoing gender reassignment surgery (before which she identified as a male), the national legislation, the ‘Sex Discrimination Act’ did not taken into purview discrimination against transgenders. With that being ineffective, the Court took into account the Equal Treatment Directive, which prohibited discrimination based on sex, either directly or indirectly.
A figurative parallel can be drawn between the ineffectiveness of the Sex Discrimination Act of UK and other legislations even in India. For example, while transgenders are now recognized as a separate gender outside the gender binary of male and female, there are no provisions equipping the transgender community with the right to equal pay for equal work. The Equal Remuneration Act of India provides for equal pay for equal work, prohibiting any and all discrimination between males and females. However, it has not yet been amended to take within its ambit the transgender community. As such, transgenders, while legally recognized, cannot take legal recourse under the Equal Remuneration Act if denied proper wages due to their gender, simply because the Act does not recognize them.
This problem is not specific to just India. It exists as a global issue, where albeit several countries have recognized transgenders in their respective legal systems, their rights are yet to be concretely ratified in specific legislations to ensure that transgender workers are given the same remuneration and pay as any other work would be entitled to under the Equal Remuneration Act. Argentina, Ireland, Denmark, the United States and Columbia are some of the other countries that fall under this category, where this societal issue remains rampant with little recourse.
Labour Code on wages bill prepared by Labour Ministry on 2015 had provisions prohibiting discrimination in wages for transgenders and also proposed amendments to the Factories Act, 1948, so that every transgender shall have equal right to work opportunity in factory and rules to secure the rights of transgender workers (to ensure dignity, non-discrimination, etc.) as government proposal said, but no amendments were made.
In the land where the Ardhanareeshwara an androgynous form of Shiva and Parvati is prayed to and where the cultural and mythological beliefs embrace the concept of "totality that lies beyond duality", the rigidly binary and non trans-inclusive legislations are nothing but a gigantic irony. This non-recognition of the third gender by the Indian legal domain paves way for the systematic denial of opportunities which in-turn leads to widespread socio-economic discrimination in society at large, especially at workplaces against the non binary individuals. Prithika Yashini from Tamil Nadu who recently became first Transgender sub-inspector, Joyita Mondal from West Bengal who achieved the status of the first transgender judge in the country and Manabi Bandopadhyay who became the first transgender college principal are a few examples of trans-people whose individual struggle against discrimination and oppression finally awarded them success in their respective fields. But we still have countless other such talented transgenders who seek the support of Indian legal system and the society to break the shackles of stereotypes imposed upon them. The legal regime can take crucial steps towards making the workplaces more transgender-inclusive and imposing and corrective penalties on offenders. Relevant amendments in the current legislations must be made and proper implementation of the transgender inclusive laws has to be undertaken so as to safeguard the interests of transgender employees.
 AIR 2014 SC 1863.  Section 3(b),Transgender Persons (Protection of Rights) Act, 2019.  Section 3(c), Transgender Persons (Protection of Rights) Act, 2019.  Section 10, Transgender Persons (Protection of Rights) Act, 2019.  Sections 11, 12, Transgender Persons (Protection of Rights) Act, 2019.  Section 15, Transgender Persons (Protection of Rights) Act, 2019.  Case C-13/94,  IRLR 347.  Conner, Randy P.; Sparks, David Hatfield; Sparks, Mariya (1998). "Ardhanarishvara". Cassell's Encyclopedia of Queer Myth, Symbol and Spirit. UK: Cassell. p. 67.  8 Indian transgender people who were the firsts in their fields, India Tody (4 July, 2018). https://www.indiatoday.in/education-today/gk-current-affairs/story/list-of-transgenders-firsts-who-made-it-big-in-their-fields-1276415-2018-07-03.