In 2019, the Transgender Persons (Protection of Rights) Act (TPPRA) was passed, with associated rules published the following year.
The objective of the Act is to provide for protection of rights of transgender people. The Act prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy the property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is.
The Supreme Court of India in its ground-breaking decision of National Legal Services Authority vs. Union of India AIR (2014) for the very first time distinguished transgender individuals from binary genders (i.e. male/female) and recognized them as a 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 Transgender Persons Act aims to create a structure that ensures equal protection and non-discrimination against trans individuals. In the workplace, the Act puts the responsibility on the `establishments' for creating an anti-discrimination policy against transgender individuals, while providing equal opportunity in matters inclusive of recruitment, promotion, and other employment-related decisions.
Under the Act, the term “establishment” covers any company or body corporate or firm, cooperative, trust, agency, or institution. It also defines discrimination as denial or discontinuation of access to or enjoyment of, or unfair treatment in employment.
The Transgender Persons Act further puts the responsibility on the establishment to:
(a) Provide facilities to transgender persons.
(b) Existence of a grievance redressal mechanism to deal with complaints relating to trans individuals, to have a complaint officer to deal with such complaints. Similar to the requirements under the POSH Act (The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013), organizations should create a grievance redressal mechanism for transgender individuals that protects their interests.
(c) Organisations are required to update their HR, administrative, recruitment, and employee benefits policies and manuals making them inclusive of the rights of Trans Individuals. A stringent anti-harassment or non-discrimination policy along with an Equal Opportunity policy may help make the workplace more inclusive.
Most importantly, it is the organization’s responsibility to create a culture of belonging where every employee feels welcome. The organization should also focus on educating and sensitizing its employees to be more inclusive. Having infrastructure such as gender-neutral washrooms or policies like an inclusive dress code policy, or resources and toolkits on how to transition at the workplace, goes a long way in demonstrating an organization’s commitment in helping create a more inclusive society for the trans community.
Disclaimer: This article only serves as a reference and is not to be considered as legal advice or a substitute for legal counsel. The reader should seek professional counsel before relying or acting upon any information listed here.
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