Introduction

In National Legal Services Authority v Union of India (AIR 2014 SC 1863), the Supreme Court recognised that transgender persons are entitled to basic human rights, such as:

  • the right to life and liberty with dignity;
  • the right to privacy and freedom of expression;
  • the right to education and empowerment;
  • protection against violence;
  • protection against exploitation; and
  • protection against discrimination.

Pursuant to this judgment, transgender is recognised as a third gender.

However, despite the above, transgender persons have been subjected to harassment, social stigma, discrimination and violence and excluded from education, employment and society in general.

To address these issues, the Indian legislature has enacted the Transgender Persons (Protection of Rights) Act 2019. The act was passed by the Lok Sabha on 5 August 2019 and the Rajya Sabha on 26 November 2019 and came into force with effect from 10 January 2020.

Background

The Transgender Persons Act aims to protect transgender persons' rights and welfare.

A 'transgender person' is someone whose gender does not match that which they were assigned at birth and includes:

  • trans men and women;
  • persons with intersex variations;
  • genderqueer persons; and
  • persons with sociocultural identities, such as kinnar and hijra.

The Transgender Persons Act prohibits discrimination against transgender persons, including:

  • the denial of service or unfair treatment in relation to education, employment and healthcare;
  • the denial of access to or enjoyment of goods, facilities or opportunities available to the public;
  • the right to movement;
  • the right to reside, rent or otherwise occupy property;
  • the opportunity to hold public or private office; and
  • access to a government or private establishment.

The Transgender Persons Act also provides for rights of health facilities to transgender persons, including separate HIV surveillance centres, sex reassignment surgeries and hormonal therapy counselling. The act incorporates the provision of identity certificates for transgender persons, after an application has been made to the district magistrate indicating their gender as 'transgender'. Further, the Transgender Persons Act contemplates the establishment of a National Council for Transgender Persons.

In addition to the general provisions above, the Transgender Persons Act requires workplaces to:

  • ensure that transgender employees face no discrimination in matters relating to employment, including recruitment, promotion and other related issues;
  • designate a person as a complaint officer to deal with the complaints relating to violations of the act (the act does not prescribe any eligibility criteria for a person to become a complaint officer); and
  • provide such facilities to transgender persons as may be prescribed under the rules.

However, there is no provision for mandatory reservation for transgender persons in an establishment.

The Transgender Persons Act provides for penalties of imprisonment ranging from six months to two years and fines in cases of offences relating to violence against and abuse of transgender persons. There is no specific penalty for discrimination against transgender persons or failure to designate a person as a complaint officer. However, in case of these violations, the aggrieved person can approach the judicial authorities for a direction to comply with the provisions and the judicial authorities may, if they deem fit and in addition to directing the employer to comply with the act, impose fines on the employer.

Comment

Many multinationals already have robust policies on diversity and inclusion. This needs to be universal. Particularly for workplaces, progress should be made in furthering transgender persons' rights under the Transgender Persons Act. Awareness sessions should be conducted to make employees aware of the act. Company policies should also be aligned to be more inclusive towards transgender employees.

This is a welcome step which can go a long way in achieving gender justice for transgender persons. On effective implementation, the Transgender Persons Act can bring about a change in workplaces' perception and treatment of transgender employees.