Recognition of Third Gender

Transgender has been part of every race, class, society since the human life came into existence. Discrimination is not unknown in India when it comes to Transgender which are often excluded category people in our Indian society. They are unrecognized especially in employment opportunities. In recent years, many activists had started positive movement for the LGBT community and fighting for the rights of transgender, which resulted in passing of the landmark order by the Supreme court in year 2014 in the case of National Legal Services Authority V. Union of [1] The court focused on discrimination and ill-treatment of transgender in various areas especially in education and employment sectors. Subsequently, the court recognised the right of third genders with reference to privacy, life and personal liberty which is enshrined under article 21 of the Indian constitution. In an attempt to provide a separate legislation which exclusively talks about the third gender rights as enunciated by National Legal Services Authority of India, has drafted Transgender Persons (Protection of rights) Bill, 2016 has been drafted and still wait for the approval of Parliament in order to become a law.

KEY PROVISIONS OF THE BILL ABOUT EMPLOYMENT OPPORTUNITIES:

  1. Section 3 (b): prohibits the unfair treatment of a transgender person in relation to employment or occupation.
  2. Section 3(c): prohibits the denial of employment and discriminatory termination from the same.
  3. Section 10: bars on establishments from discriminating against a transgender person in matters related to employment such as recruitment, promotion and other related issues.
  4. Section 11: creates an obligation on establishments to comply with the provisions of the legislation and provide necessary facilities to transgender.
  5. Section 12: creates an obligation on every establishment consisting of more than 100 people to appoint a compliance officer who would deal with complaints regarding violations of the Act.
  6. Section 15: creates a duty on the appropriate government to formulate welfare schemes and programmes to facilitate and support livelihood for transgender persons including their vocational training and self-employment opportunities
  7. Section 17: provides for the formation of a one National Council by the Central Government with a representative from the Labor and Employment Department and Department of Legal Affairs, amongst others.
  8. Section 19 (d): provides for penalties and punishments in the event any person harms, injures or endangers the life, safety, health, or well-being of a transgender person or tends to do any act which causes any physical, sexual, verbal, emotional and/or economic abuse to them.
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Well these provision are extremely progressive in nature and provide a legal recognition to trans persons particularly in employment opportunities. If the Bill becomes a law it would bring an affirmative change in their status.

Moreover, Bill in clause 19 (d) provides for protection of a trans woman from sexual or physical abuse and also ensures the protection of the health and safety of a transgender persons. However, this would require to amend the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act), as the 2013 Act does not cover provision for trans woman. It is relevant to mention that the Bill was revised in August 2018 and it now contains a provision where crimes against transgender persons are punishable offense with imprisonment for up to two years, based on the severity of the offence.

The Draft Personal Data Protection Bill, 2018 (Data Protection Bill) has covered transgender status and the information belonging to a transgender under the ambit of sensitive personal data (SPD)[2] The passing of the Data Protection Bill into law would enhance the status of transgender and protect their SPD.

WHY THE BILL IS NOT A LAW YET?

In 2014, the Supreme court of India had given a historic judgement in the case of National Legal Services Authority versus the Union of India declaring transgender as the third gender. As per the judgement, the transgender persons have right to be treated equally under the Constitution and their right to decide on their gender identity.

As per the Transgender persons (Protection of Rights) Bill, the District Magistrate and the screening-committee at the district level will assign a gender certificate to an individual who has undergone a sex reassignment surgery. If one has not undergone sex reassignment surgery, one can only be identified as transgender, not as male or female. Transgender people believe this is coercing them into surgery whereas the demand for free or low-cost sex reassignment surgery has also not been met.

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In addition to that, the provision for punishment for serious crimes committed against transgender people is substantially less severe and penalised as “petty” crimes. The new bill also denies reservation to transgender, education etc. Bullying in school and workplace is common but no discussion of this issue as well. Moreover, Activists pointed out that it is inappropriate to include the intersex community under the definition of transgender, which the bill does, as not all intersex people identify themselves as trans-people.

It dilutes transgender rights gender, and requires them to be live with their biological parents. In most of the cases, transgender are abandoned by their family or suffered physical and psychological torture. Non-inclusiveness of rights in regard to marriage and adoption of transgender couple is absent under the Bill. The transgender community thinks they are sub-human under the Bill and need more reforms.

EMPLOYMENT RATE

A transgender struggle to survive since childhood. The first-ever study on the rights of transgender persons by the National Human Rights Commission shows of the present scenario of transgender in the country. According to the study, about 92% of transgender are deprived of the right to participate in any form of economic activity in the country, with even qualified ones refused jobs. Due to restricted entry in jobs, they are forced into begging, indulge in sex-work and dance in weeding in order to earn their living.

As per 2011 census data, India’s trans population consist of 490,000 people, out of which handful of them only make it to gainful employment. In 2017, Kochi metro Rail Limited employed 23 transgender persons out of which 8 persons had to quit their job because landlords refused to give them accommodation. They were left with no remedy as their no legal obligation for their protection that will help them and fight against such discrimination.

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INCLUSIVENESS IN WORKPLACE AND SOCIETY

As we live in society, the acceptance by society is essential. The change can happen at ground level like it could start from ones then family. Parents can educate their children that the trans persons are like us, have aspiration and dreams in their life like a normal human. Even our education system should also teach each these morals. They are normal people like us just with different biological structures. They also want to accomplish their dreams them, here we can play an important role by supporting them in their journey. Transgender often humiliated and harassed.

Workplace need to be more trans gender inclusive and treat them equally with initiative such as separate restrooms for third gender as they are often forced to use male washrooms, equal opportunity hiring, punishment against misconduct/harassment towards third gender, insurance and health care facilities. Requirement of adequate grievance redressal mechanism for transgender which deals with harassment complaints. In short, the company or organisation must review and revise their existing HR, administrative recruitment policies for the benefit of third gender. must openly talk about their rights and be more inclusive for them in society by treating them equally.

In the same world, we have Joyita Mondal from West Bengal becoming the first transgender judge in the country, as well as Tamil Nadu getting its first Transgender sub-inspector, these are live examples of individual struggles leading to landmark victory. In order to improve the status of the transgender community, require collective effort by empowering them at your place.

References:

[1](2014) 5 SCC 438

[2]Section 3 (35) (ix), Draft Personal Data Protection Bill, 2018

Author: Akriti Mishra,
Veer Narmad South Gujarat University, Surat, 2nd Year Law student

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